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PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED ON A REQUEST FOR
CONFIDENTIAL TREATMENT.
EXHIBIT 10.17
LEASE
SILICON ENTERTAINMENT, INC., a California corporation
--------------------------
TENANT
NASCAR SILICON MOTOR SPEEDWAY and/or SILICON MOTOR SPEEDWAY
--------------------------
TRADE NAME
NONE
--------------------------
GUARANTOR
XXXX XXXXX
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TABLE OF CONTENTS
Page
ARTICLE I ............................................................... 4
GRANT AND TERM ..................................................... 4
Section 1.1 Leased Premises ................................... 4
Section 1.2 Term .............................................. 6
Section 1.3 Opening ........................................... 8
Section 1.4 Late Opening ...................................... 8
ARTICLE II .............................................................. 8
RENT AND DEPOSIT ................................................... 8
Section 2.1. Minimum Rent ..................................... 8
Section 2.2. Percentage Rent .................................. 9
Section 2.3. Payments By Tenant ............................... 12
Section 2.4. Security Deposit ................................. 12
Section 2.5. Late Charge ...................................... 12
ARTICLE III ............................................................. 13
PREPARATION OF LEASED PREMISES ..................................... 13
Section 3.1. Landlord's Work .................................. 13
Section 3.2. Delivery of Possession ........................... 13
Section 3.3. Tenant's Work .................................... 14
Section 3.4. Alterations by Tenant ............................ 15
Section 3.5. Removal by Tenant ................................ 16
ARTICLE IV .............................................................. 16
CONDUCT OF BUSINESS ................................................ 16
Section 4.1. Use and Trade Name ............................... 16
Section 4.2. Operation of Business ............................ 17
Section 4.3. Sign ............................................. 18
Section 4.4. Tenant's Warranties .............................. 19
Section 4.5. Storage and Office Space ......................... 19
Section 4.6. Care of Premises ................................. 20
Section 4.7. Notice by Tenant ................................. 20
Section 4.8. Radius ........................................... 20
ARTICLE V ............................................................... 00
XXXXXX XXXX ........................................................ 20
Section 5.1. Use of Common Area ............................... 20
Section 5.2. Common Area Maintenance Expenses ................. 21
ARTICLE VI .............................................................. 24
REPAIRS AND MAINTENANCE ............................................ 24
Section 6.1. Repairs and Maintenance by Landlord .............. 24
Section 6.2. Repairs and Maintenance by Tenant ................ 24
ARTICLE VII ............................................................. 25
TAXES .............................................................. 25
Section 7.1. Tax Liability .................................... 25
Section 7.2. Method of Payment ................................ 26
ARTICLE VIII ............................................................ 26
INSURANCE, INDEMNITY AND LIABILITY ................................. 26
Section 8.1. Landlord's Insurance Obligations ................. 26
Section 8.2. Tenant's Insurance Obligations ................... 27
Section 8.3. Mutual Covenant .................................. 28
3
Section 8.4. Covenant to Hold Harmless ........................... 28
Section 8.5. Loss and Damage ..................................... 29
ARTICLE IX .................................................................. 29
DESTRUCTION OF LEASED PREMISES ......................................... 29
Section 9.1. Continuance of Lease ................................ 29
Section 9.2. Reconstruction of Lease ............................. 30
ARTICLE X ................................................................... 31
CONDEMNATION ........................................................... 31
Section 10.1. Eminent Domain ...................................... 31
Section 10.2. Rent Apportionment .................................. 31
Section 10.3. Temporary Taking .................................... 31
ARTICLE XI .................................................................. 31
ASSIGNMENT, SUBLETTING AND ENCUMBERING LEASE ........................... 31
Section 11.1. No Assignment, Subletting or Encumbering of Lease ... 31
Section 11.2. Assignment or Sublet ................................ 35
Section 11.3. Transfer of Landlord's Interest ..................... 35
ARTICLE XII ................................................................. 35
SUBORDINATION, ATTORNMENT, FINANCING AND ESTOPPEL CERTIFICATE .......... 35
Section 12.1. Subordination ....................................... 35
Section 12.2. Attornment .......................................... 36
Section 12.3. Financing ........................................... 36
Section 12.4. Estoppel Certificate ................................ 36
Section 12.5. Remedies ............................................ 36
ARTICLE XIII ................................................................ 37
ADVERTISING AND PROMOTION .............................................. 37
Section 13.1. Promotion Fund ...................................... 37
Section 13.2. Promotion Fund Contribution ......................... 37
Section 13.3. Advertisements [Intentionally Deleted] .............. 37
Section 13.4. Network ............................................. 37
ARTICLE XIV ................................................................. 38
DEFAULTS AND REMEDIES .................................................. 38
Section 14.1. Elements of Default ................................. 38
Section 14.2. Landlord's Remedies ................................. 39
Section 14.3. Bankruptcy .......................................... 41
Section 14.4. Additional Remedies and Waivers ..................... 41
Section 14.5. Landlord's Cure of Default .......................... 41
Section 14.6. Security Interest ................................... 42
ARTICLE XV .................................................................. 42
RIGHT OF ACCESS ........................................................ 42
ARTICLE XVI ................................................................. 43
DELAYS ................................................................. 43
ARTICLE XVII ................................................................ 43
END OF TERM ............................................................ 43
Section 17.1. Return of Leased Premises ........................... 43
Section 17.2. Holding Over ........................................ 43
ARTICLE XVIII ............................................................... 44
COVENANT OF QUIET ENJOYMENT ............................................ 44
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ARTICLE XIX ................................................................. 44
UTILITIES .............................................................. 44
Section 19.1. Utilities .......................................... 44
Section 19.2. Electricity, Telephone and Gas ..................... 44
Section 19.3. Trash and Garbage Removal .......................... 44
Section 19.4. Water and Sewer .................................... 45
Section 19.5. Grease Interceptors ................................ 45
ARTICLE XX .................................................................. 45
MISCELLANEOUS .......................................................... 45
Section 20.1. Entire Agreement ................................... 45
Section 20.2. Notices ............................................ 45
Section 20.3. Governing Law ...................................... 45
Section 20.4. Successors ......................................... 46
Section 20.5. Liability of Landlord .............................. 46
Section 20.6. Brokers ............................................ 46
Section 20.7. Transfer by Landlord ............................... 46
Section 20.8. No Partnership ..................................... 46
Section 20.9. Waiver of Counterclaims............................. 46
Section 20.10. Waiver of Jury Trial ............................... 46
Section 20.11. Severability ....................................... 46
Section 20.12. No Waiver .......................................... 46
Section 20.13. Consumer Price Index ............................... 47
Section 20.14. Interest ........................................... 47
Section 20.15. Excavation ......................................... 47
Section 20.16. Rules and Regulations .............................. 47
Section 20.17. Financial Statements ............................... 47
Section 20.18. General Rules of Construction ...................... 47
Section 20.19. Recording .......................................... 48
Section 20.20. Effective Date ..................................... 48
Section 20.21. Headings ........................................... 48
Section 20.22. Managing Agent ..................................... 48
EXHIBITS:
Exhibit A Site Plan
Exhibit B Measurement of Leased Premises
Exhibit C Landlord's Work
Exhibit D Tenant's Work
Exhibit E Sign Criteria
Exhibit F Commencement and Expiration Date Declaration
Exhibit G Waiver of Sales Tax Confidentiality
Exhibit H Agreement of Subordination, Non-Disturbance
and Attornment
Exhibit H-1 Pre-Construction Tenant Estoppel Certificate
Exhibit I Menu
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THIS LEASE dated as of this 17th day of March, 1999 (the "Lease") by and
between XXXX XXXXX LIMITED PARTNERSHIP, a Delaware limited partnership, the
address of which is c/o The Xxxxx Corporation, 0000 Xxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Landlord") and
SILICON ENTERTAINMENT, INC., a California corporation, the address of which is
000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Tenant").
RECITAL
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord, the Leased Premises, for the Term commencing on the Commencement Date,
subject to the terms, covenants, conditions and provisions of this Lease.
Landlord shall have the right, at any time prior to April 1, 1999, by written
notice to Tenant, to relocate the Leased Premises in either direction (from side
to side from the outside boundary of the Leased Premises) by not more than forty
(40) feet, provided that the configuration of the Leased Premises is
substantially the same in the relocated space and that the visibility of the
Leased Premises from the enclosed mall is not materially and adversely impacted
("Shift"), and upon any such Shift, the size and description of the Leased
Premises shall be appropriately modified to reflect any resulting proportional
adjustment in the Rent based upon the change in size of the Leased Premises. If
the Landlord initiates a Shift as described herein, prior to the Delivery of
Possession Date but after the receipt by Tenant of the initial Lease Outline
Drawing (as described in Exhibit D) then Landlord will pay for Tenant's actual
costs associated with the Shift, including without limitation, the costs
associated with a redesign of the Leased Premises and the Fixturing Period will
be extended one day for each day of delay created by the Shift.
If the Commencement Date is not the first day of a month, Minimum Rent for
the month in which the Commencement Date occurs shall be prorated to the end of
the month and paid as the second monthly installment of Minimum Rent on the
first day of the next month and, after the expiration of the number of years in
the Term, the Term shall expire on the last day of the same month in which the
Commencement Date of the Term occurred, it being the intention of the parties
that the Term expire on the last day of a month. When the Commencement Date has
been determined, Landlord and Tenant shall execute, acknowledge and deliver a
written statement in recordable form specifying the Commencement and Expiration
Dates of the Term and, if there shall have been any changes in the floor area
of the Leased Premises, such statement shall reflect such change or changes.
Said statement upon execution and delivery shall be deemed to be a part of this
Lease.
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DATA SHEET
The following references furnish data to be incorporated in the
specified Sections of this Lease and shall be construed to incorporate all of
the terms of the entire Section as stated in this Lease:
(1) SECTION 1.1: DESCRIPTION OF LEASED PREMISES:
Store number: R-6, consisting of approximately 6,172 square feet of
floor area with a minimum of fifty feet (50') of frontage as shown on
Exhibits A and B attached hereto and made a part hereof.
(2) SECTION 1.2: TERM:
COMMENCEMENT DATE:
The earlier of (i) the later of (A) the Grand Opening, or (B) the date
following the expiration of a one hundred twenty (120) day fixturing
period ("Fixturing Period") following the Delivery of Possession Date
(as defined in Section 3.2), or (ii) the date the Leased Premises is
open for business to the public. It is estimated that the Delivery of
Possession Date will be June 28, 1999.
ORIGINAL TERM: [***] years, plus that period of time necessary to
cause the Expiration Date to occur on the January 31st following the
expiration of the [***] year.
OPTION PERIOD: [***] years, provided Tenant's Gross Sales for the
twelve (12) month period ending two hundred ten (210) days prior to the
Expiration Date exceed [***] per square foot.
(3) SECTION 2.1: MINIMUM RENT:
Original Term:
From the Commencement Date and continuing through the expiration of the
Original Term, the sum of [***] annually ([***] psf), payable in
equal consecutive monthly installments of [***] each.
Option Period:
Beginning with the first (1st) year and continuing through the
expiration of the Option Period, the sum of [***] annually ([***]
psf), payable in equal consecutive monthly installments of [***]
each.
(4) SECTION 2.2: PERCENTAGE RENT:
Percentage Factor: [***]
Sales Break Point for the Original Term:
From the Commencement Date through the expiration of the Original Term:
[***]
Sales Break Point for the Option Period:
Beginning with the first (1st) year and continuing through the
expiration of the Option Period: [***].
(5) SECTION 2.4: SECURITY DEPOSIT: [***]
*** Confidential treatment requested.
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(6) SECTION 4.1: PERMITTED USE:
Tenant shall use the Leased Premises for the use set forth below and for
no other purpose:
Conducting an interactive entertainment center featuring among other
things, racing simulators and other related retail and entertainment
uses. Such uses may include but shall not be limited to the installation
and operation of simulators and the sale of auto racing, including
NASCAR Silicon Motor Speedway merchandise, NASCAR driver merchandise and
other entertainment merchandise related to NASCAR; and for the sale of
snack food items only and hot and cold non-alcoholic beverages
(selections to be based on Landlord's approval) for on-the-premises
consumption, provided said snack food and beverage service shall not be
operated or licensed by a nationally-recognized fast-food chain. See
menu referred to as Exhibit I attached hereto and made a part hereof.
Tenant shall have the right to conduct group sales events ("Events")
from the Leased Premises at which time a portion of the Leased Premises
may be closed to the general public. During Events Tenant may retain an
outside catering service (giving preference to restaurant operators
within the Retail Development) to provide food and beverage service
(including alcoholic beverage service if Tenant or the caterer obtains
all necessary permits) with food items that are not reflected on Exhibit
I.
TRADE NAME: NASCAR Silicon Motor Speedway and/or Silicon Motor Speedway
(7) SECTION 13.2: FUND CONTRIBUTION: [***] psf of floor area in the Leased
Premises
GRAND OPENING FEE (INITIAL CONTRIBUTION): [***] psf of floor area in the
Leased Premises
(8) GUARANTOR: N/A
Address:
(9) GRAND OPENING DATE: October 28, 1999
(10) TEMPORARY CHARGES: [***] psf of floor area in the Leased Premises
(11) CONSTRUCTION CHARGEBACKS: $ N/A
(12) CONSTRUCTION ALLOWANCE: [***] psf of floor area in the Leased Premises
*** Confidential treatment requested.
3
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ARTICLE I
GRANT AND TERM
SECTION 1.1 LEASED PREMISES. (a) Landlord, in consideration of the Rent
(as defined in Section 2.3) to be paid and the covenants to be performed by
Tenant, does hereby lease and demise to Tenant, and Tenant hereby rents and
hires from Landlord for the Term herein set forth, the Leased Premises which are
described as set forth in the Data Sheet attached hereto, in the retail
development designated as Xxxx Xxxxx or by such other name as Landlord may from
time to time hereafter designate (hereinafter "Retail Development"). The term
"State" as used herein shall mean the State or Commonwealth of Texas. For all
purposes in this Lease, a "Major Tenant" is any occupant of 20,000 square feet
or more of floor area in the Retail Development and a "Major Tenant Space" is
any space in the Retail Development containing 20,000 square feet or more. It is
agreed that, wherever the term "Shopping Center" is used herein, it shall mean
the Retail Development excluding the Major Tenant Spaces, except as otherwise
specifically stated herein. Exhibit A sets forth the general layout of the
Retail Development. Landlord does not warrant or represent that the Retail
Development or the Leased Premises will be constructed exactly as shown thereon
or that it will be completed by a specific date, but Landlord does warrant that
the Leased Premises and the Retail Development will have the general
configuration shown on Exhibit A. Notwithstanding anything contained in this
Lease to the contrary, Landlord shall have the right, at any time and from time
to time, without notice to or consent of Tenant, and without in any manner
diminishing Tenant's obligations under this Lease, to make alterations or
additions to, and build additional stories on the building in which the Leased
Premises are located and to build adjoining the same, to construct other
buildings and improvements of any type in the Retail Development or the common
areas, or any part thereof, including the right to locate and/or erect thereon
permanent or temporary kiosks and structures, to enlarge the Retail Development,
and to make alterations therein or additions thereto (provided in no event will
any kiosk or other structure be located directly in front of the registration
desk within the Leased Premises), to build additional stories on any building or
buildings within the Retail Development, and to build adjoining thereto, to
construct decks or elevated parking facilities and free standing buildings
within the parking lot areas of the Retail Development, and to change the size,
location, elevation and nature of any of the stores in the Retail Development or
the common areas, or any part thereof. In exercising its options hereunder,
Landlord agrees to use reasonable efforts (in light of the then existing
circumstances) not to materially and unreasonably interfere with the visibility
of and access to the Leased Premises from the enclosed mall; it being understood
that any structure placed in the common areas shall not block Tenant's signage
located on the storefront signband. In the event Landlord elects to enlarge the
Retail Development, or any part thereof, any additional area may be included by
Landlord in the definition of the Retail Development for purposes of this Lease.
Landlord shall also have the general right from time to time to include within
and/or to exclude from the defined Shopping Center any existing or future areas
and the floor area of the Shopping Center shall be accordingly adjusted. The
premises leased to Tenant are herein referred to as the "Leased Premises". The
approximate location of the Leased Premises is cross-hatched on the lease plan
of the Retail Development attached hereto and made a part hereof as Exhibit A.
This Lease of the Leased Premises is subject to all applicable building
restrictions, planning and zoning ordinances, governmental rules and
regulations, existing underlying leases, and all other encumbrances, covenants,
restrictions, easements and agreements affecting the Retail Development and the
terms and provisions of certain master declaration, reciprocal easement and
operating agreements now or hereafter entered into by Landlord.
Landlord acknowledges that Tenant's customers shall be permitted to queue
in the common areas in front of the Leased Premises while waiting for access to
the Leased Premises ("Waiting Area"). The Waiting Area shall be in a location
designated by Landlord and reasonably approved by Tenant, provided said Waiting
Area permits Tenant's customers to queue in an orderly manner without
obstructing pedestrian traffic in the common areas and/or unreasonably
disturbing the operation of other tenants in the Retail Development.
In addition to the Leased Premises, Landlord shall grant Tenant a license
for a location in the common area of the Shopping Center which shall be used by
Tenant for the display of a full size stockcar, including sign tripods ("Display
Area"). The location of the Display Area shall be selected by Landlord, but such
location shall always be with in the area labeled on Exhibit A-1 as "Display
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Area". In no event shall Tenant be obligated to pay additional Rent for use of
the Display Area; provided, however, that any utility costs associated with the
illuminated display shall be the sole responsibility of Tenant. Tenant shall,
[***], construct the illuminated display in accordance with approved plans and
specifications, which plans and specifications shall be submitted to Landlord
for approval pursuant to the submittal requirements and process outlined in the
Tenant Handbook. During the Term, Tenant shall repair and maintain the Display
Area in accordance with Section 6.2 of this Lease. In addition, Tenant shall be
required to carry insurance for the Display Area providing for the coverage set
forth in Section 8.2(a) of this Lease. Upon the Expiration Date (hereinafter
defined) or the earlier termination of this Lease, Tenant shall be responsible
for the complete removal of the display and shall make any necessary repairs to
the Display Area in accordance with Tenant's obligations set forth in Section
17.1 of this Lease.
Subject to the provisions of Section 5.1, Tenant shall enjoy a
non-exclusive easement, right and privilege for Tenant and its customers,
employees and invitees and the customers, employees and invitees of any
assignee, sublessee, concessionaire or licensee of Tenant, to use the common
areas of the Shopping Center, with Landlord and the other tenants and occupants
of floor area within the Shopping Center and their respective customers,
employees and invitees. Furthermore, Landlord agrees that any additions,
alterations or modifications to the Shopping Center by Landlord shall not
adversely affect access to, or visibility of the Leased Premises and, except as
otherwise provided for herein, Tenant shall retain substantially the same
relative position with respect to Major Tenants of the Shopping Center as of the
Commencement Date.
(b) After the Commencement Date (as defined in Section 3.2), Landlord
reserves the right to relocate Tenant for the purpose of (i) the addition or
expansion of a Major Tenant or (ii) the redevelopment or expansion of the Retail
Development involving the addition of a minimum of 100,000 square of GLA.
Landlord shall provide Tenant with not less than sixty (60) days written notice
of such relocation (the "Relocation Period") during which Landlord shall offer
to Tenant such alternative location(s) (with approximately the same floor area,
configuration and at least fifty feet (50') of frontage) as may be available
within that area of the Retail Development labeled "Relocation Zone" on Exhibit
A-2. In the event the parties agree on a specific location, then this Lease
shall be amended by substituting the new location for the present location and
the square footage, Minimum Rent and Sales Break Point shall be proportionately
adjusted based upon the change in the size of the Leased Premises and Landlord
and Tenant shall agree upon a mutually acceptable timeframe for the completion
of work in the new premises and the relocation of the Tenant to the new
premises. Landlord shall, at Landlord's cost and expense, complete the leasehold
improvements to the new location in accordance with the working drawings
originally approved by Landlord with respect to Tenant's Work in the original
Leased Premises (including, without limitation finish work and the installation
of fixtures, simulators and other merchandise) and Tenant shall relocate to the
new location and, within sixty (60) days after the delivery of the new location
to Tenant ("Relocation Fixturing Period"), open for business in the new location
("Relocation Date"). Since Tenant will need to move its equipment, including
simulators from one space to the other, Tenant shall be permitted to close for a
period not to exceed ten (10) days for the purpose of moving the equipment and
installing it in the new leased premises ("Relocation Closure"), and during such
Relocation Closure Tenant's Rent shall xxxxx. In the event that Tenant is not
able to operate in either the original or the relocated Leased Premises during
the Relocation Fixturing Period because of the removal and installation of the
simulators and other equipment, Rent shall xxxxx until Tenant reopens but in no
event after the expiration of the Relocation Fixturing Period. Notwithstanding
the foregoing, Tenant may elect to have Landlord construct the relocated space
under a new prototype design, but Tenant shall bear the additional costs
required as a result of the election of the new design. Landlord recognizes that
the installation of simulators is a specialized task for which Tenant's experts
will be required and Landlord shall reimburse Tenant for the reasonable internal
costs of using Tenant's personnel for the completion of such work.
In the event Landlord offers to Tenant at least one alternative location
with approximately the same floor area, configuration and at least fifty feet
(50') of frontage and Landlord and Tenant are unable to agree on an alternative
location, then within thirty (30) days after the expiration of the sixty (60)
day period set forth above Landlord shall either (A) terminate this lease by
providing ninety (90) days prior notice, which termination shall be effective on
the later of (i) ninety (90) days after notice from Landlord of the termination
or (ii) the date that Tenant actually vacates the Leased Premises ("Termination
Date") or (B) withdraw the request for relocation. In the event
*** Confidential treatment requested.
5
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of such termination, Landlord shall pay to Tenant, within thirty (30) days
following the Termination Date, a sum equal to the then unamortized cost of
Tenant's leasehold improvements which have been paid for by Tenant,
such amortization to be on a straight line basis over the Original Term less the
value of all simulators equipment removed by Tenant for re-use plus all
reasonable costs associated with the moving and storage for up to three (3)
months of the simulators and other equipment in the Leased Premises, provided
Tenant shall furnish to Landlord such backup information as Landlord may
reasonably require. Tenant shall deliver possession of the Leased Premises to
Landlord on or before the Termination Date and/or the Relocation Date is "as
is" condition excepting the provisions of Sections 3.5 and 17.1. Tenant shall
pay all charges which are due and owing or which shall accrue up to such
Termination Date or Relocation Date (which charges shall be paid to Landlord
within thirty (30) days of such Termination Date or Relocation Date) and Tenant
shall be released from any and all further obligations pursuant to this Lease
accruing after such Termination Date or Relocation Date with respect to the
vacated Leased Premises, except as otherwise provided in Articles V and VII;
however, in the event of relocation, Tenant shall remain liable for all
obligations accruing under this Lease after the Relocation Date.
(c) The square footage of the Leased Premises (sometimes herein referred
to as the gross leasable floor area or GLA) shall be measured as defined in
Exhibit B. The actual square footage in the Leased Premises shall be determined
by Landlord's architect. If Tenant disagrees with the square footage so
determined, Tenant may advise Landlord in writing within ten (10) days that it
contests the same and retain an architect to remeasure the Leased Premises. If
Landlord's architect and Tenant's architect do not agree, then the two
architects shall retain a third architect whose decision shall be final and
binding. The agreed to square footage shall be binding upon both parties
hereto, and such determined square footage shall be used in all calculations
based on square footage throughout this Lease. If the floor area determined in
accordance with the preceding sentence varies from the square foot floor area
originally set forth in the Data Sheet, the Minimum Rent set forth in Section
2.1 hereof shall be adjusted by multiplying the Minimum Rent by a fraction, the
numerator of which is the square foot floor area determined by Landlord's
architect and the denominator of which is the square foot floor area
originally set forth in the Data Sheet, and Tenant shall be obligated to pay
such Minimum Rent, as adjusted, from the Commencement Date, subject to further
adjustments as provided in this Lease but in no event shall Tenant be obligated
to pay Minimum Rent on more than one hundred ten (110) additional square feet
of GLA. Each monthly installment provided for in Section 2.1 shall be
recomputed and shall be that dollar amount which results from dividing the
adjusted Minimum Rent by twelve (12). Any and all references in this Lease to
Minimum Rent (or the monthly installments thereof) shall be deemed to be
references to the Minimum Rent as computed by application of this Section 1.1,
subject, however, to the adjustments set forth elsewhere in this Lease. For
purposes of this Lease, in determining the gross leasable floor area or the
gross leased and occupied floor area of the Shopping Center, there shall be
excluded therefrom project areas and offices, common areas and/or areas under
Landlord's control (e.g., electrical/utility rooms, etc.). The exterior walls,
roof, storefront and the area beneath the Leased Premises are not demised
hereunder, and the use thereof, together with the right to install, maintain,
use, repair and replace pipes, ducts, conduits, wires, people counters,
tunnels, sewers and structural elements leading through the Leased Premises in
locations which will not materially interfere with Tenant's use thereof and
serving other parts of the Retail Development are hereby reserved to Landlord.
Landlord reserves an easement above Tenant's finished ceiling or light line to
the roof for general access purposes and in connection with the exercise of
Landlord's other rights under this Lease. Notwithstanding anything contained in
this Lease to the contrary, if as a result of Landlord's exercise of the
foregoing rights Tenant is prevented from operating its business within the
Leased Premises for three (3) or more consecutive days, Landlord shall after
written notice from Tenant to Landlord, xxxxx Minimum Rent after such three (3)
days of disruption on a day-to-day basis until Tenant is able to operate its
business in the Leased Premises.
SECTION 1.2 TERM. The Term of this Lease shall be for a period commencing
on the Commencement Date, and expiring at 11:59 p.m. local time on the final
day of the month in which the Original Term or the Option Period, if exercised,
expires or other specified date as set forth in the Date Sheet unless sooner
terminated in accordance with the provisions hereof (the "Expiration Date").
Unless otherwise specified in this Lease, the use of the word "Term" shall be
deemed to include both the Original Term and the Option Period, if exercised.
The term "full year" and "year" as used in this Lease shall mean consecutive
periods of twelve (12) months each following the Commencement Date. For all
purposes of this Lease, the term "Lease Year" shall have the following
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meaning: the first Lease Year shall be a period beginning with the Commencement
Date and ending on the 31st day of December next following the Commencement
Date, and after the first Lease Year, the term Lease Year shall mean a fiscal
period of twelve (12) consecutive calendar months commencing on January 1 of
each calendar year, except that the last Lease Year shall terminate on the
Expiration Date or sooner termination of this Lease. Lease Years containing 365
days or more shall be referred to as "full Lease Years." If the Leased Premises
are not delivered to Tenant on or before the expiration of twelve (12) months
after the date of Landlord's execution of this Lease then either party may
cancel and terminate this Lease upon sixty (60) days prior written notice to the
other, in which event neither party shall have any further obligation or
liability to the other; provided, however, that if Landlord has commenced
construction of the Shopping Center, then Landlord shall not be permitted to
terminate in the foregoing manner. Following the Commencement Date of this
Lease, Landlord may submit to Tenant a Commencement and Expiration Date
Declaration in the form attached hereto as Exhibit F, specifying the information
called for in said form, and Tenant shall execute such Declaration within thirty
(30) days following submission for purposes of certifying such information;
provided, however, that the Declaration shall not be rendered ineffective by
Tenant's to execute same.
Provided Tenant is not default (after expiration of any cure or grace
period provided herein as of the date of exercise hereof, Tenant shall have the
option to extend the Term hereof (the "Option") for one (1) additional period of
five (5) years (the "Option Period"). The Option shall be exercised, if at all,
by written notice to Landlord ("Notice") at least one hundred eighty (180) days
prior to the expiration of the Original Term. All terms and conditions of this
Lease shall apply during the Option Period except the Minimum Rent and Sales
Break Points shall be as scheduled in Section 2.1 and 2.2 hereof. In the event
that Tenant does not exercise the Option by the required date, then such Option
shall become null and void and be of no further force or effect. In addition, if
this Lease is transferred or assigned, in whole or in part, as permitted in
Section 11.1 hereof, or if the Leased Premises or any part thereof be sublet or
occupied by any person or entity other than Tenant, then such Option shall
become null and void and be of no further force or effect, unless the Lease has
been transferred with the prior written consent of Landlord or pursuant to a
transfer of substantially all of the assets of Tenant not requiring the approval
or consent of Landlord.
If Tenant's Gross Sales during the twelve (12) month period ending two
hundred ten (210) days prior to the Expiration Date do not exceed [***] per
square foot of floor area in the Leased Premises, then any Notice by Tenant of
the Option shall be null and void and Tenant's Notice shall have no force or
effect. Tenant shall furnish to Landlord, concurrently with its Notice, a
statement certified by an authorized representative or financial officer of
Tenant setting forth the amount of Tenant's Gross Sales for the said twelve (12)
month period.
Notwithstanding the foregoing, in the event Tenant does not achieve Gross
Sales (as hereinafter defined) of at least [***] per square foot during the
third year of the Term hereof, then Landlord and Tenant, for a period of thirty
(30) days following the end of the third year, shall each have the option, upon
one hundred eighty (180) days prior written notice to the other party, of
terminating this Lease ("Termination Option") provided, however, that Tenant
shall not be entitled to terminate this Lease if Tenant is in default of this
Lease. In the event Tenant fails to submit a certified report of annual Gross
Sales within twenty (20) days after written notice of its failure to submit such
report within the time period required pursuant to Section 2.2 of this Lease,
then Landlord may use such information as Landlord shall have available to
permit Landlord to make a determination as to the amount of Gross Sales achieved
by Tenant during the period covered by Landlord's option to terminate, and such
information shall be the basis for Landlord exercising its Termination Option
and Tenant shall not be permitted to reinstate this Lease after termination for
any reason or cause whatsoever, including, but not limited to, the submittal by
Tenant of a subsequent sales report either certified or uncertified. In the
event that neither party exercises its Termination Option within the required
time period, then each such Termination Option shall, upon expiration of the
applicable period, become null and void and be of no further force or effect. In
the event either party exercises the foregoing Termination Option within the
required time period, this Lease shall terminate upon expiration of the one
hundred eighty (180) day period subject, however, to the payment by Tenant to
Landlord of all sums then due and owing or having accrued to Landlord. In the
event that Tenant exercises the Termination Option provided for herein, Tenant
shall pay to Landlord the unamortized portion of the Construction Allowance (as
hereinafter defined).
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In the event that Tenant can prove that Tenant's Gross Sales are below
[***] per square foot as the result of an act or omission on the part of
Landlord, then Landlord shall not be permitted to exercise the Termination
Option provided in the immediately preceding paragraph.
SECTION 1.3 OPENING. Subject to delays as described in Article XVI,
Tenant covenants and agrees to complete its construction within the Leased
Premises in accordance with the provisions of this Lease, to satisfy the
requirements for issuance of a certificate of acceptance pursuant to Exhibit D
attached hereto and made a part hereof, and to open its store for business to
the public not later than the Commencement Date. Notwithstanding the foregoing,
Landlord hereby notifies Tenant that the anticipated date of the grand opening
of the Shopping Center (the "Grand Opening") is the date set forth on the Data
Sheet, Tenant shall be obligated to open its store for business to the public on
or before the later of (A) the expiration of the Fixturing Period or (B) the
Grand Opening. Tenant shall not be permitted to open for business to the public
prior to the Grand Opening without the prior written consent of Landlord which
consent shall be at Landlord's sole discretion.
SECTION 1.4 LATE OPENING. In the event Tenant shall fail to open its
store for business to the public upon the Commencement Date for reasons other
than Delays, as described in Article XVI, or delays created by Landlord, then in
order to compensate Landlord for its loss, Tenant shall pay to Landlord as
additional rent (as defined in Section 2.3) over and above the Minimum Rent and
all other charges to be paid by Tenant to Landlord pursuant to this Lease, a sum
in an amount equal to [***] per day for the Commencement Date and each day after
the Commencement Date that Tenant shall have failed to open its store for
business. This remedy shall be in addition to any and all other remedies
provided for in this Lease in the event of such failure to open. Such additional
late opening rent shall be deemed to be in lieu of any Percentage Rent that
might have been earned during the period of Tenant's failure to open.
ARTICLE II
RENT AND DEPOSIT
SECTION 2.1. MINIMUM RENT. During the entire Term of this Lease, Tenant
shall pay annual minimum rental ("Minimum Rent") for the Leased Premises from
the Commencement Date of this Lease in the amount set forth in the Data Sheet
attached hereto, which sum shall be payable by Tenant in equal consecutive
monthly installments in the sum set forth in the Data Sheet attached hereto, on
or before the first day of each month, in advance. The Minimum Rent and each of
the monthly installments called for hereunder shall be payable to Landlord,
without demand, deduction, set-off or counter-claim, except as otherwise
provided herein or permitted by applicable law. The first installment of Minimum
Rent shall be paid by Tenant on or before the Commencement Date. If the
Commencement Date occurs on other than the first day of a month, the second
installment of Minimum Rent shall be prorated at a daily rate on the basis of a
thirty (30) day month.
On the Commencement Date, if either of the following conditions have not
been satisfied: (1) at least five (5) Major Tenants are open or ready to open
for business; or (2) the "Required Occupancy Level" (as hereinafter defined) has
been achieved, then Tenant's obligation for payment of Minimum Rent shall xxxxx
and Tenant shall pay to Landlord, in lieu thereof, Interim Rent on the basis of
the lesser of (A) the [***] and (B) [***] of all of Tenant's Gross Sales (as
defined in Section 2.2 of this Lease) until both of the conditions in (1) and
(2) above have been initially satisfied; provided, however, Tenant shall not be
entitled to such abatement of Minimum Rent if Tenant fails to open its store in
the Leased Premises to the general public on or before the Commencement Date of
the Term hereof or if Tenant shall otherwise be in default of this Lease. Said
Interim Rent shall be paid to Landlord within ten (10) days following the end of
each calendar month, at which time Tenant shall also be required to submit an
unaudited statement of Tenant's Gross Sales for such calendar month and for the
Lease Year to date. All other terms and
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conditions of this Lease shall be applicable during such period. For purposes
of this paragraph, the term 'Required Occupancy Level' shall mean occupants of
at least sixty-five percent (65%) of the gross leasable floor area of the
Shopping Center are open for business, or instead, at Landlord's sole option.
'Required Occupancy Level' shall mean sixty five percent (65%) of the total
number of stores shown on the then existing lease plan for the Shopping
Center, are occupied and are not open or ready to open for business.
In addition, Landlord hereby represents and warrants to Tenant that it has
a fully executed lease for a Bass Pro facility, Jillian's and a multi-plex
theater at the Retail Development ("Key Stores"). In the event that less than
two of the Key Stores have opened for business within six (6) months of the
Commencement Date then Tenant's obligation for payment of Minimum Rent shall
xxxxx and Tenant shall pay to Landlord, in lieu thereof, Interim Rent on the
basis of the lesser of (A) the scheduled Minimum Rent and (B) four percent (4%)
of all of Tenant's Gross Sales (as defined in Section 2.2 of this Lease) until
at least two (2) of the Key Stores are initially open for business; provided,
however, Tenant shall not be entitled to such abatement of Minimum Rent if
Tenant fails to open its store in the Leased Premises to the general public on
or before the Commencement Date or if Tenant shall otherwise be in default of
this Lease. Said Interim Rent shall be paid to Landlord within ten (10) days
following the end of each calendar month, at which time Tenant shall also be
required to submit an unaudited statement of Tenant's Gross Sales for such
calendar month and for the Lease Year to date. All other terms and conditions of
this Lease shall be applicable during such period. In the event that at least
two (2) of the Key Stores have not initially opened for business within eighteen
(18) months after the Commencement Date, then at the end of such eighteen (18)
month period, Tenant may elect to terminate this Lease by providing Landlord
within thirty (30) days of the end of such eighteen (18) month period, written
notice of its intention to so terminate the Lease ("Key Store Termination
Notice") or Tenant may elect to remain in the Lease Premises but must commence
paying the then applicable scheduled Minimum Rent as provided for in the Data
Sheet of this Lease. In the event that Tenant timely delivers the Key Store
Termination Notice, this Lease shall terminate one hundred and eighty (180) days
from the date of the Key Store Termination Notice or on such earlier date as may
be mutually agreed to between the parties and this Lease and all of the
unaccrued rights and obligations of the parties to it shall cease and terminate,
as fully and effectively as though the date agreed to were the Expiration Date.
In such event, Landlord and Tenant shall execute a Termination Agreement setting
forth the terms of such termination.
SECTION 2.2. PERCENTAGE RENT. (a) During and for each Lease Year, Tenant
shall pay annual percentage rent ("Percentage Rent") equal to the Percentage
Factor (see Data Sheet) multiplied by all "Gross Sales" resulting from business
conducted in, on or from the Leased Premises during such Lease Year in excess of
the applicable Sales Break Point set forth in the Data Sheet. In any Lease Year
where there is more than one applicable Sales Break Point, for purposes of
computing annual Percentage Rent the following calculation shall be used: each
Sales Break Point which was effective during any such Lease Year shall be
multiplied by a fraction, the numerator of which is the number of days in the
Lease Year that such Sales Break Point was effective and the denominator of
which is the actual number of days in such Lease Year (herein the "Adjusted
Break Point") and the sum of the Adjusted Break Point for such Lease Year.
"Gross Sales" is defined to mean the total amount of the actual sales price,
whether for cash or otherwise, of all sales of merchandise or services arising
out of or payable on account of (and all other receipts or amounts receivable
whatsoever with respect to) all the business conducted in, on, or from the Lease
Premises by or on account of Tenant or any sublessee, assignee or concessionaire
of Tenant for cash or otherwise, including all orders for merchandise taken from
or filled at or from the Leased Premises, including all deposits not refunded to
customers. A "sale" shall be deemed to have been consummated for purposes of
this Lease, and the entire amount of the sale price shall be included in Gross
Sales, at such time as (i) the transaction is initially reflected in the books
or records of Tenant, or any sublessee, assignee or concessionaire of Tenant, or
(ii) Tenant or such other entity receives all or any portion of the sales price,
or (iii) the applicable goods or services are delivered to the customer,
whichever first occurs. Tenant shall record at the time of each sale or
transaction, in the presence of the customer, all receipts from such sale or
other transaction, whether for cash, credit or otherwise, in a cash register or
cash registers having a cumulative total, which shall be sealed in a manner
approved by Landlord and which shall possess such other features as shall be
required by Landlord. There shall be no deduction allowed for direct
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or indirect discounts, rebates, or other reductions on sales, unless generally
offered to the public on a uniform basis. Tenant may deduct from Gross Sales
discount sales to employees, bad debts when written off the books of Tenant and
charges paid to credit card companies, as otherwise provided below. Tenant may
also exclude from Gross Sales any transfer of goods between Tenant's other
stores and returns to shippers or manufacturers. The term "Gross Sales" shall
exclude, however, proceeds from any sales tax, gross receipts tax or similar
tax, by whatever name called which are separately stated and in addition to the
purchase price, bona fide transfers of merchandise from the Leased Premises to
any other stores or warehouses of Tenant, refunds given to customers for
merchandise purchased at the Leased Premises and returned or exchanged, and
sales of Tenant's fixtures and equipment not in the ordinary course of Tenant's
business. The term "merchandise" as used in this Lease shall include food and
beverages if Tenant is permitted to sell such items pursuant to Section 4.1
hereof.
The term "Gross Sales" shall not include, however, the following: (i)
the sales price of all merchandise returned and accepted for full credit or the
amount of the cash refund or allowance made thereon; (ii) the sums and credits
received in settlement of claims for loss or damage to merchandise; (iii) the
consideration received in connection with a sale of inventory which occurs other
than in the ordinary course of Tenant's business, including, but not limited to,
a sale in bulk or to a jobber, liquidator or assignee; (iv) sales taxes,
so-called luxury taxes, excise taxes, gross receipt taxes, and other taxes now
or hereafter imposed upon the sale or value of merchandise or services, whether
added separately to the selling price of the merchandise or services and
collected from customers or included in the retail selling price; (v) receipts
from public telephones, vending machines, sales of money orders, and the
collection of public utility bills; (vi) bankcard discounts (e.g., Visa,
MasterCard, etc.), interest, carrying charges, or other finance charges in
respect of sales made on credit; (vii) sales of fixtures, trade fixtures, or
personal property that are not merchandise held for sale at retail; (viii) sales
to senior citizens at discount; (ix) revenue received from mailing, alterations,
delivery or other services performed on a non-profit basis for the benefit of
customers; (x) Tenant's accounts receivable, not to exceed [***] of Gross Sales,
which have been determined to be uncollectible for federal income tax purposes
during the applicable lease year, provided, however, that if such accounts are
actually collected in a later lease year, the amount shall be included in the
Gross Sales for such later lease year; (xi) rents, subrents or other
consideration received in connection with a permitted assignment, sublease,
license, concession or other transfer of any portion of the store (however,
Gross Sales of any such transferee shall be included) and license fees otherwise
received by Tenant in connection with a third party license agreement; (xii)
amounts received for merchandise transferred to any other place of business of
Tenant (or its subtenants, concessionaires and/or licensees) or to any business
organization affiliated with Tenant wherever located, provided such merchandise
is not used to fill a sale made in the store; (xiii) discounts given for
promotional coupons that are redeemed from time to time; (xiv) amounts received
in connection with remote site promotional activities; (xv) promotional fees
earned by Tenant with respect to goods or services offered for sale; and (xvi)
amount required to be paid by Tenant under any agreement related to Tenant's use
of the NASCAR name, not to exceed [***] of Gross Sales.
(b) Tenant shall keep at the Leased Premises or at Tenant's
executive offices within the continental United States a full and accurate set
of books and records adequately showing the amount of Gross Sales in each Lease
Year. The books and records to be kept by Tenant shall include, without
limitation, (i) cash register tapes, including tapes from temporary registers;
(ii) serially prenumbered sales slips; (iii) detailed original records of any
exclusions or deductions from Gross Sales; (iv) sales tax records; and (v) such
other records, if any, would normally be examined by an independent accountant
pursuant to accepted auditing standards in performing an audit of Tenant's
sales. Such books and records shall be kept in accordance with generally
accepted accounting principles and practices, may be saved in microfiche or an
electronic storage medium, and shall be retained by Tenant for a period of not
less than two (2) years following the end of the Lease Year to which they have
reference. When and as Landlord may reasonably require (but no more than once
per Lease Year following the first Lease Year (if the first year is a partial
Lease Year) unless required by the city, county or State), Tenant shall also
furnish to Landlord any and all statements, information, and copies of sales
reports and returns which separately show financial data for the Leased
Premises, and inventory records and other data evidencing Gross Sales. Within
twenty (20) days following the end of each calendar month of the Term
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hereof Tenant shall submit to Landlord an unaudited statement of Gross Sales for
such calendar month. Within twenty (20) days following the end of the month in
which Tenant's Gross Sales for the Lease Year to date exceed the Sales Break
Point, and each month thereafter, Tenant shall pay to Landlord Percentage Rent
and shall submit to Landlord a statement certified by Tenant setting forth the
Gross Sales for each such period. Within forty-five (45) days after the close of
each Lease Year, Tenant shall furnish to Landlord a statement certified by an
authorized representative or financial officer of Tenant setting forth amount of
Gross Sales during such Lease Year and showing the amount of Percentage Rent
required to be paid by Tenant for such Lease Year. The full amount of the
Percentage Rent due shall be paid to Landlord no later than sixty (60) days
after the end of each Lease Year and any excess Percentage Rent paid shall be
credited against Tenant's next due Rent payment, except for the final Lease Year
of the Term for which any excess shall be refunded to Tenant. Landlord and/or
Landlord's auditor shall have the right, at any time after thirty (30) business
days notice but no more than once per Lease Year after the first Lease Year (if
the first Lease Year is a partial Lease Year), to inspect and/or audit the
records of Tenant relating to Gross Sales. If the Gross Sales exceed those
reported, Tenant shall immediately pay any deficiency in Percentage Rent owing
to Landlord. If Gross Sales vary from those reported by [***] or more, Tenant
shall pay Landlord's cost of inspection and audit. If Gross Sales vary from
those reported by (i) [***] or more in any [***] Lease Year, or (ii) [***] or
more for any [***] Lease Years out of any [***] Lease Years, then Landlord shall
have the right, at its sole option, to terminate this Lease, with Tenant
remaining liable for sums due and owing under this Lease for the balance of the
Term provided, however, that Landlord shall be permitted to terminate this Lease
if Landlord can prove that such misstatement was a deliberate act. Tenant agrees
that in the event Tenant shall fail to timely submit a Gross Sales statement as
required by this Section 2.2.(b), Tenant shall pay on demand a late fee of [***]
per late statement, as additional rent.
(c) In the event that Tenant shall fail to operate its business in the
Leased Premises in the manner and on each day as required pursuant to Article IV
hereof, then, for the purpose of computing the Percentage Rent for such Lease
affected by Tenant's failure to operate, the Sales Break Point for such Lease
Year shall be adjusted by multiplying the Sales Break Point otherwise applicable
for such Lease Year by a fraction, the numerator of which shall be the actual
number of days in such short Lease Year or the actual number of days in such
Lease Year during which Tenant was open for business and operating in accordance
with Article IV, and the denominator of which shall be "360".
In the event that the first Lease Year is less than six (6) months in
length, then the Percentage Rent covering such Lease Year shall be paid on Gross
Sales in excess of the Sales Break Point computed on a pro rated basis for the
period beginning on the Commencement Date of the Term and ending on the
succeeding December 31st.
(d)
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SECTION 2.3. PAYMENTS BY TENANT. Throughout the Term of this Lease. Tenant
shall pay to Landlord without demands, deductions, set-offs or counterclaims
(except as otherwise provided for herein or permitted by applicable law), the
Rent, which is hereby defined as the sum of the Minimum Rent, Percentage Rent
and all additional rent, when and as the same shall be due and payable
hereunder. Unless otherwise stated, all sums of money or charges of any kind or
nature, in addition to Minimum Rent and Percentage Rent, payable by Tenant to
Landlord pursuant to this Lease or the Exhibits attached hereto are defined as
"additional rent" and are due thirty (30) days after the rendering of an invoice
therefor, without any deductions, set-offs or counterclaims, and failure to pay
such sums of money or charges shall carry the same consequences as Tenant's
failure to pay Rent. All payments and charges required to be made by Tenant to
Landlord hereunder shall be payable in United States funds, at the address
indicated on page 1 of this Lease, unless otherwise specified by written notice
from Landlord to Tenant. No payment by Tenant or receipt by Landlord of a lesser
amount than the correct Rent shall be deemed to be other than a payment on
account and no endorsement or statement on any check or other communication
accompanying a check for payment of any amounts payable hereunder shall be
deemed an accord and satisfaction, and Landlord may accept such check in payment
without prejudice to Landlord's right to recover the balance of any sums owed by
Tenant hereunder or to pursue any other remedy available in this Lease, or under
law, against Tenant.
SECTION 2.4. SECURITY DEPOSIT. The amount set forth in the Data Sheet as a
security deposit is payable by Tenant to Landlord upon Tenant's execution of
this Lease, which sum shall be held by Landlord as security against any default
by Tenant in the performance of the covenants, conditions and agreements of this
Lease. The security deposit may, at Landlord's option, be applied by Landlord
against any default in any of the terms, provisions or conditions of this Lease.
Landlord shall not be obligated to keep such security deposit in a separate fund
but may commingle the security deposit with its own funds. A mortgagee-in-
possession of the Leased Premises, or any interest therein, through public or
private foreclosure or the acceptance of deed in lieu thereof, shall have no
liability to Tenant for return of all or any portion of the security deposit,
unless, and then only to the extent that, such mortgagee has actually received
all or any portion of Tenant's security deposit. In the event Landlord applies
the security deposit in whole or in part against a default by Tenant, Tenant
shall, upon demand by Landlord, deposit sufficient funds to maintain the
security deposit in the initial amount. The failure of Tenant to maintain the
security deposit in the initial amount as stated shall constitute a failure to
pay Rent and shall carry with it the consequences set forth under Article XIV
hereof. Upon the expiration of the Term hereof, the security deposit, if not
applied toward the payment of Rent in arrears or toward the payment of damages
suffered by Landlord by reason of Tenant's breach of this Lease, is to be
returned to Tenant without interest, except as provided by law, but in no event
is such security deposit to be returned until Tenant has vacated the Leased
Premises, delivered possession thereof to Landlord, and fully satisfied Tenant's
obligations under this Lease. Notwithstanding the acceptance by Landlord of
Tenant's security deposit, this Lease shall not be deemed effective until the
Effective Date (as defined in Section 20.20).
SECTION 2.5. LATE CHARGE. In the event any Rent or sums required hereunder
to be paid are not received on or before the fifth (5th) calendar day after the
same are due, then, for each and every late payment, Tenant shall immediately
pay, as additional rent, a late charge equal to the greater of (a) [***], (b)
[***] per day for each day after the date due that such payment has not been
received by Landlord or (c) [***] per month of the total receivable balance of
Tenant outstanding. In the event of Tenant's failure to pay the foregoing late
charge, Landlord may deduct said charge from the Security Deposit set forth in
Section 2.4 hereof. The provisions herein for late charges shall not be
construed to extend the date for payment of any sums required to be paid by
Tenant hereunder or to relieve Tenant of its obligation to pay all such sums at
the time or times herein stipulated. Notwithstanding the imposition of such late
charges pursuant to this Section 2.5, Tenant shall be in default under this
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Lease if any or all payments required to be made by Tenant are not made on or
before the time due and as stipulated in Article XIV, and neither the demand
for, nor collection by, Landlord of such late charges shall be construed as a
cure of such default on the part of Tenant. It is agreed that the said late
charge is a fair and reasonable charge under the circumstances and shall not be
construed as interest on a debt payment. If the event any charge imposed
hereunder or under any other section of this Lease is either stated to be or
construed as interest, then no such interest charge shall be calculated at a
rate which is higher than the maximum rate which is allowed under the usury laws
of the State, which maximum rate of interest shall be substituted for the rate
in excess thereof, if any, computed pursuant to this Lease.
ARTICLE III
PREPARATION OF LEASED PREMISES
SECTION 3.1. LANDLORD'S WORK. Landlord shall construct the building
wherein the Leased Premises are to be located and perform the work described in
Exhibit C attached hereto and made a part hereof ("Landlord's Work") at
Landlord's cost and expense, except as otherwise provided in Exhibit C.
Landlord's work shall be completed in a good and workmanlike manner, free of
material defects and in compliance with applicable building codes, and zoning
and subdivision laws relating to general retail use. All work, in excess of the
work described in Exhibit C, done by Landlord at Tenant's written request shall
be paid for by Tenant within thirty (30) days after the presentation to Tenant
of a xxxx for such work. Any items of Landlord's Work which are not completed as
of delivery of possession shall be identified by Tenant on a punch list to be
submitted to Landlord within thirty (30) days after the date of possession and
Landlord shall thereafter complete the same. Any items of Landlord's Work which
are not timely identified on such a punch list shall be deemed completed, other
than latent defects as provided for in Section 6.1 hereof.
SECTION 3.2. DELIVERY OF POSSESSION (a) Landlord, or Landlord's
supervising architect, shall give Tenant at least thirty (30) days' prior
written notice of the date on which Landlord's Work will be substantially
completed in accordance with Exhibit C and the Leased Premises will be available
for the performance of Tenant's Work (as defined in Section 3.3) to the extent
that Tenant shall be able to perform its work in the Leased Premises without
substantial interference resulting from the conduct of Landlord's Work
("Delivery of Possession Date"). Tenant covenants and agrees to take physical
possession of the Leased Premises on the Delivery of Possession Date provided
that Landlord's Work is "substantially completed." The term "substantially
complete" shall mean that Landlord can give Tenant beneficial occupancy of the
Leased Premises so that Tenant can begin the performance of Tenant's Work in
safety. Landlord and Tenant acknowledge that Landlord and Tenant will be working
simultaneously to complete the Leased Premises and that Landlord will be
continuing the completion of Landlord's Work during the thirty (30) day period
after the Delivery of Possession Date. Landlord and Tenant agree to cooperate so
as to avoid interference with each other so that Landlord's Work and Tenant's
Work may be completed in a timely manner. The Delivery of Possession Date shall
be subsequently confirmed by Landlord, or Landlord's supervising architect, by
written notice to Tenant. Failure of Landlord to deliver possession of the
Leased Premises within the time and in the condition provided for in this Lease
will not give rise to any claim for damages by Tenant against Landlord or permit
Tenant to rescind or terminate this Lease except as may be provided in Section
1.2 hereof.
(b) Tenant may, provided Tenant shall not interfere with the conduct of
Landlord's Work, and subject to Landlord's reasonable rules and regulations,
enter the Leased Premises during normal working hours during the course of
Landlord's Work for the purpose of inspecting the Leased Premises and making
measurements. At such time prior to the Delivery of Possession Date that
Landlord's Work has progressed sufficiently to permit Tenant to perform its work
without interfering with Landlord's Work, Landlord may, but shall not be
required to, notify Tenant of the same, and
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Tenant may then enter the Leased Premises in order to begin to install its store
fixtures and perform such other work as may be required under the provisions of
this Lease in order to ready the store for opening. Throughout the period of
Tenant's Work, Tenant shall schedule it work so as not to interfere with any
work being performed by Landlord or by any other tenant in the Shopping Center.
SECTION 3.3. TENANT'S WORK. (a) Tenant agrees, prior to the commencement of
the Term of this Lease, [***], to diligently perform all work of whatever nature
in accordance with Tenant's obligations set forth in Exhibit D ("Tenant's Work")
and all other related work necessary to prepare for the opening to the public of
Tenant's store in the Lease Premises in accordance with the provisions of this
Lease. Tenant agrees to furnish to Landlord the Store Design Drawings and
Working Drawings and Specifications with respect to the Leased Premises prepared
in the manner and within the time period required in Exhibit D. If such Store
Design Drawings or Working Drawings and Specifications are not furnished by
Tenant to Landlord within the required time period(s) in form to permit approval
by Landlord, then the Fixturing Period (as described in the Data Sheet) shall be
reduced by [***] of delay by Tenant in submitting said Store Design Drawings or
Working Drawings and Specifications. Landlord shall respond to such Store Design
Drawings or Working Drawings and Specifications submitted by Tenant pursuant to
this Lease within [***] business days following Landlord's receipt from Tenant.
In the event of Landlord's failure to respond within such [***] business day
period or there are other delays created by Landlord, the Fixing Period as
described in the Delta Sheet shall be extended by [***] of additional delay by
Landlord.
No material deviations from the final Store Design Drawings or Working Drawings
and Specifications, once approved by Landlord, shall be permitted unless
necessary to comply with applicable governmental requirements or unless
otherwise approved by Landlord. Landlord's approval of Tenant's Store Design
Drawings and Working Drawings and Specifications shall not constitute the
assumption of such items. Tenant's Work shall include the installations of
fixtures and equipment and the stocking of the Leased Premises with suitable
merchandise. Tenant covenants that all such fixtures and equipment visible to
customers shall be new (or like-new) and otherwise reasonably acceptable to
Landlord in appearance. In addition to conforming to the requirements specified
in Exhibit D, all work performed by Tenant shall comply with such rules and
regulations as Landlord and its representatives may make, provided that such
rules and regulations are uniformly applied to all similarly situated Shopping
Center tenants under construction. Unless Landlord otherwise directs in writing,
Tenant shall not open the Leased Premises for business until all construction
has been completed pursuant to the provisions of Exhibit D. It is further
understood and agreed that: (i) Landlord shall have no responsibility or
liability whatsoever for any loss of, or damage to, any fixtures, equipment,
merchandise, or other property belonging to Tenant, installed or left in the
Leased Premises except to the extent resulting from the negligence or
intentional acts or Landlord, its agents or employees; and (ii) Tenant's entry
upon and occupancy of the Leased Premises prior to the Commencement Date shall
be governed by and subject to all the provisions, covenants and conditions of
this Lease. Tenant shall obtain at its sole cost and immediately thereafter
furnish to Landlord all certificates and approvals with respect to work done and
installations made by Tenant that may be required for the issuance of a
certificate of occupancy for the Leased Premises, so that such certificate of
occupancy shall be issued and the Leased Premises shall be ready for the opening
of Tenant's business on the Commencement Date. Upon the issuance of the
certificate of occupancy, a copy thereof shall be immediately delivered to
Landlord. Promptly upon the completion of its work, Tenant, at Tenant's cost,
shall repair, clean and restore all portions of the Shopping Center affected by
Tenant's Work to their prior condition.
To the extent approved by the proper governing authorities, Tenant shall
have the right to install atop the roof of Landlord's building in which the
Leased Premises are located one (1) antenna and/or (1) satellite dish and the
equipment necessary for Tenant's communications and data transmission network
system. The satellite dish shall not be larger than five (5) feet in diameter.
The antenna or satellite dish on such roof shall be at a location designated by
Landlord and reasonably approved by Tenant. Tenant shall submit to Landlord for
its approval plans for the installation of such antenna or satellite dish and
necessary equipment, such approval not to be unreasonably withheld, delayed, or
conditioned. Tenant shall also provide Landlord with copies of all permits
required by the proper governmental authorities regarding such installation,
which shall be obtained by Tenant at its sole cost and expense. Landlord's
contractor shall cut the roof and patch it (if necessary) at Tenant's expense,
and Tenant's contractor shall be subject to Landlord's prior
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approval, which approval shall not be unreasonably withheld, delayed, or
conditioned. Tenant shall be responsible for the cost of repairing any damage to
Landlord's building arising from such installation, except to the extent caused
by Landlord's contractors. Upon prior written notice to Landlord (except in case
of an emergency), Tenant shall have access to the antenna or satellite dish and
related equipment for the purpose of maintaining, repairing and operating the
antenna or satellite dish. Any utility costs related to the installation and
operating of the antenna or satellite dish shall be the sole responsibility of
Tenant.
Provided Tenant is not in default hereof, Landlord hereby agrees to
contribute towards the cost of Tenant's Work a Construction Allowance of [***]
per square foot of floor area in the Leased Premises. The aforesaid Construction
Allowance shall be paid as follows: fifty percent (50%) after two-thirds (2/3)
of Tenant's Work is completed; forty percent (40%) upon the opening of the
Leased Premises for business; and ten percent (10%) upon receipt of the
Certificate of Occupancy and the applicable lien waivers from all contractors
and subcontractors. In the event that this Lease is terminated prior to the
expiration of the Term hereof as a result of a default on the part of Tenant,
Tenant shall repay said Construction Allowance to Landlord in cash upon
termination; provided, however, that Tenant's liability for said Construction
Allowance shall be reduced at the rate of one-sixtieth (1/60th) at the end of
each full calendar month during the Term hereof.
(b) The interest of Landlord in the Leased Premises and the Retail
Development shall not be subject to liens for improvements made by or on behalf
of Tenant. Nothing contained in this Lease shall be construed as a consent on
the part of Landlord to subject Landlord's estate in the Leased Premises or the
Retail Development to any lien or liability under applicable law. In the event
that any mechanic's, materialman's or other lien or any notices of claim,
including without limitation, stop notices (herein "lien") is filed against the
Leased Premises or Retail Development as a result of any work, labor, services
or material performed or furnished, or alleged to have been performed or
furnished to or for Tenant (excluding work performed by or on behalf of
Landlord) or to or for anyone holding the Leased Premises through or under
Tenant, Tenant, at its expense, shall cause the lien to be discharged or fully
bonded to the satisfaction of Landlord within thirty (30) days after notice of
the filing thereof. If Tenant fails to discharge or bond against such
mechanic's, materialman's or other lien, Landlord may, in addition to any other
remedies Landlord may have, but without obligation to do so, bond against or pay
the lien without inquiring into the validity or merits of such lien and all sums
so advanced, including reasonable attorney fees incurred by Landlord in
defending against such lien, procuring the bond or in the discharge of such
lien, shall be paid by Tenant on demand as additional rent. It shall be Tenant's
continuing obligation to keep and maintain the Leased Premises and all other
parts of the Retail Development free from any and all liens arising out of any
work performed, materials furnished or obligations incurred by or for Tenant in
connection with the Leased Premises. In addition, Tenant shall replace any bonds
posted by Landlord pursuant hereto with a suitable bond of equivalent amount
within twenty (20) days after Landlord's demand therefor.
(c) During the Term of this Lease, Tenant agrees to repair, refurbish or
replace the interior portions of the Leased Premises that are visibly worn or
damaged so as to maintain the condition of the Shopping Center as a first class
super-regional discount specialty retail mall.
SECTION 3.4. ALTERATIONS BY TENANT. Tenant shall not make or cause to be
made any alterations, repairs, additions or improvements in or to the Leased
Premises (for example, but without limiting the generality of the foregoing.
Tenant shall not install or cause to be installed any
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exterior signs or interior signs visible from the exterior except as permitted
by Section 4.3 hereof, floor covering, interior or exterior lighting, plumbing
fixtures, shades, canopies or awnings or make any changes to the storefront,
mechanical, electrical or sprinkler systems) without the prior written consent
thereto by Landlord. Tenant shall submit to Landlord plans and specifications
for such work at the time consent is sought, in accordance with the criteria and
procedures as provided in Exhibit D. In the event Landlord grants such consent,
such alterations, repairs, additions or improvements shall be performed in good
and workmanlike manner and in accordance with all applicable legal and insurance
requirements and all drawings or specifications approved by Landlord, and in
accordance with the provisions of this Lease, including the provisions of
Section 3.3 governing construction of the Leased Premises. Any work performed by
Tenant shall be subject to Landlord's inspection and approval after completion
to determine whether the same complies with the requirements of this Lease.
Prior to the commencement of any such work by Tenant, Tenant shall obtain the
insurance required in Section 8.2.
Tenant may from time to time make non-structural alterations to the Leased
Premises without Landlord's prior written approval, the aggregate total of which
shall not exceed [***] in any Lease Year; provided, however, that Tenant shall
not be permitted to alter the exterior storefront sign or the exterior of the
storefront (other than for repairs) without the prior written consent of
Landlord, and provided further that any such non-structural alterations shall
not change the overall appearance of the Leased Premises as originally approved
by Landlord.
SECTION 3.5. REMOVAL BY TENANT. All repairs, alterations, decorations,
additions and improvements made by Tenant shall be deemed to be attached to the
leasehold and to have become the property of Landlord upon such attachment, and,
upon the Expiration Date or sooner termination of this Lease, Tenant shall not
remove any of such alterations, decorations, additions and improvements;
provided that trade fixtures, simulators, and other items noted as "To Be
Removed" on Tenant's Construction Documents and Specifications installed by
Tenant may be removed if all Rent due herein are paid in full and Tenant is not
otherwise in default hereunder; provided further, however, that Landlord may
designate by written notice to Tenant given at the time such improvements are
installed those alterations, decorations, additions and improvements which shall
be removed by Tenant at the Expiration Date or sooner termination of this Lease
and Tenant shall, at Tenant's cost, promptly remove the same and repair any
damage to the Leased Premises caused by such removal.
ARTICLE IV
CONDUCT OF BUSINESS
SECTION 4.1. USE AND TRADE NAME. Except as otherwise provided herein,
Tenant shall continuously use and occupy the Leased Premises during the Term
solely for the purpose of conducting the business specifically set forth in the
Data Sheet and for no other purpose or purposes. Throughout the Term hereof,
Tenant shall (a) operate its business in the Leased Premises under the Trade
Name specifically set forth in the Data Sheet and under no other so long as such
name shall not be held to be in violation of any applicable law, (b) not change
the advertised name or character of the business operated in the Leased
Premises, (c) refer to the Shopping Center by name in designating the location
of the Leased Premises in all newspaper and other advertising within the
Shopping Center market area and in all other references to the location of the
Leased Premises, and (d) during the period from the Delivery of Possession Date
through sixty (60) days following the Commencement Date, include in all Tenant's
newspaper advertising within the Shopping Center market area the designation
that Tenant is opening for business in the Shopping Center. If any governmental
license(s) or permit(s) shall be required for the proper and lawful conduct of
Tenant's business or other activity carried on in the Leased Premises, or if a
failure to procure such a license or permit might or would in any way, adversely
affect Landlord or the Shopping Center, then Tenant,
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a Tenant's expense, shall duly procure and thereafter maintain such license(s)
or permit(s) and submit the same for inspection by Landlord. Tenant, at Tenant's
expense, shall at all times, comply with the requirements of such license(s) or
permit(s). Except as provided in Section 1.3, Tenant shall open its store in the
Leased Premises for business to the public on the Commencement Date, and shall
thereafter diligently conduct is regular business operations in the Leased
Premises as required by terms of this Lease. No symbol, design, name, xxxx or
insignia adopted by Tenant shall be used without the prior written approval of
Tenant.
During the Term of this Lease, and provided Tenant shall not be in default
hereof, Landlord agrees that Landlord will not lease space in the Retail
Development (other than with respect to spaces leased or to be leased to Major
Tenants and presently executed non-Major Tenant leases), to any tenant whose
primary use is the entertainment use of auto-racing simulators. In addition,
with respect to any non-Major Tenant lease, Landlord shall not be permitted to
modify any such lease, either through amendment or assignment, so as to permit
the occupant of the space leased thereby to have as its primary use the
entertainment use of auto-racing simulators.
Landlord hereby represents and warrants to Tenant that Tenant's use of the
Leased Premises as contemplated in the Data Sheet does not violate any
exclusivity clause or other agreement between Landlord and any other party,
including any other Tenant of the Shopping Center, and Landlord shall indemnify,
defend, protect and hold harmless Tenant from any loss, liability, cost,
expense, judgement, action, or claim of any such party arising from the
inaccuracy of such representation and warranty.
If the trade name of all or substantially all other stores operating under
the same trade name as set forth in this Section 4.1 shall be changed, then
Tenant, with prior written notice to Landlord, may likewise change its trade
name herein set forth to such other name as adopted for all or substantially all
such other stores in first class regional malls or super-regional malls.
Notwithstanding the foregoing, in no event shall Tenant's trade name duplicate
any other trade name in the Retail Development.
SECTION 4.2. OPERATION OF BUSINESS. Tenant shall open for business in the
Leased Premises and remain open during the entire Term and continuously operate
its business in the entire area of the Lease Premises during the entire Term.
Tenant shall conduct its business at all times in a high class and reputable
manner, maintaining at all times a full staff of employees and a complete stock
of merchandise. Tenant shall install and maintain at all times a display of
merchandise in the display windows (if any) of the Leased Premises and shall
keep the Leased Premises well lighted during all hours that the Shopping Center
is open to the public and during such other hours as may be reasonably
designated by Landlord but in no event more than one (1) hour after the close of
business. In no event shall Tenant conduct or advertise any auction, fire sale,
going out of business sale, or bankruptcy sale in or about the Leased Premises
without Landlord's prior written consent in each instance, which consent may be
withheld by Landlord in its sole and absolute discretion. Tenant shall conduct
its business in the Leased Premises in a lawful manner and in good faith during
all days and hours specified by Landlord from time to time as the published
operating hours for the Shopping Center. Tenant shall not use or allow the
Leased Premises to be used for any improper, immoral or objectionable purposes,
as determined by Landlord, and Tenant shall not do any act tending to injure the
reputation of the Shopping Center as determined by Landlord. Tenant may (but
shall not be required), from time to time, upon written notice to Landlord,
remain open for business beyond the normal operating hours of the Shopping
Center on a daily basis, but such hours of operation shall not extend beyond the
time permitted by applicable law or regulations, and in no event beyond the time
that is one hour after the release of the last movie from the Theater or 1:00
a.m. whichever is later. In addition, in the event that there is an exterior
entrance serving only the Leased Premises, which provides ingress and egress to
the general public and such ingress and egress has been approved by the local
jurisdiction for non-emergency use, then Tenant shall be permitted to remain
open for business during the same days and hours that Jillian's or its
replacement is open for business. Tenant agrees to reimburse Landlord for all
reasonable costs directly relating to all additional hours of operation beyond
the normal operating hours of the Shopping Center, which costs include, without
limitation, electricity for parking lot lighting and salaries for security
personnel.
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Notwithstanding any provision hereof to the contrary, Tenant shall not be
obligated to continuously operate from the Leased Premises during periods in
which (i) Tenant is carrying on remodeling activities (but in no event for more
than thirty (30) days in any lease year and no more than twice in any five (5)
year period), (ii) Tenant is closed for the taking of inventory (but in no event
for more than two (2) days in any lease year), (iii) Tenant is unable or
reasonably unwilling to operate as a result of casualty or natural disaster,
condemnation, interruption of utilities or services, extremely inclement
weather, civil unrest, operation of the business would expose Tenant's
employees, agents or invitees to an unreasonably risk of physical injury or
property damage, or other force majeure events, (iv) Tenant's use and occupancy
of the Leased Premises is prohibited by any law, ordinance, order or other act
of any judicial governmental or quasi-governmental authority, (v) there exists a
substantial and material hardship to Tenant or its employees, provided Tenant's
failure to continuously occupy under this clause (v) for any such occurrence
shall be excused only for a period of forty-eight (48) hours, (vi) Thanksgiving
and Christmas, and (vii) during periods in which the Leased Premises are
temporarily closed in connection with group sales activities being conducted and
the Leased Premises are temporarily closed to the public (as permitted pursuant
to Section 4.1 of the Data Sheet).
Landlord hereby consents to Tenant's use of hydraulic oil in connection
with the operation of the simulators and cleaning and office products
customarily used in retail or office premises so long as such materials are
used, handled and disposed of in accordance with applicable laws. Landlord
hereby acknowledges that such materials are approved.
Landlord recognizes that Tenant's prototype incorporates an open storefront
design. Tenant shall be permitted to incorporate the open storefront element
into the design of the Leased Premises provided that Tenant, at Tenant's expense
shall construct Tenant Work in a manner that does not cause the ambient noise
level in adjacent tenant spaces and common areas to exceed 45 db(A). Similarly,
Tenant installed equipment within the Leased Premises shall be isolated in a
manner that eliminates the transfer of any and all vibrations to adjacent tenant
spaces and common areas. Landlord shall be given the opportunity to review and
approve Tenant's intended construction methods to isolate such noise and
vibrations, which will be included in Tenant's Store Design Drawings submission
(as provided for in Exhibit D). Landlord's review and approval of Tenant's Store
Design Drawings shall not relieve Tenant of its obligation to limit the ambient
noise level and eliminate the transfer of vibrations as required herein.
SECTION 4.3. SIGN. Tenant shall install and maintain one (1) sign affixed
to the front of the Leased Premises, subject to the prior written approval of
Landlord as to design and location and conforming to all applicable legal and
insurance requirements. Tenant's sign shall conform to the specifications and
requirements contained in Exhibit E attached hereto. Tenant shall keep its
approved storefront sign lighted during all hours that the Shopping Center is
open to the public and during such other hours as may be reasonably designated
by Landlord but in no event more than one (1) hour after the close of business.
Tenant shall pay for all costs in connection with such sign and shall be
responsible for the cost of proper installation and removal thereof and any
damage caused to the Leased Premises thereby. In the event Landlord deems it
necessary to remove such sign, then Landlord shall have the right to do so,
provided, however, that if the sign has received Landlord's prior written
approval and is consistent with the specifications and requirements of Exhibit
E, Landlord shall replace said sign as soon as practicable. Except as mentioned
above, Tenant shall not place or cause to be placed, erected or maintained on
any exterior door, wall or window of the Leased Premises, or the glass of any
window or door of the Leased Premises, or on any sidewalk or within any display
window space in the Leased Premises, or within five (5) feet of the front of the
storefront lease line or opening, or within any entrance to the Leased Premises,
any sign (flashing, moving, hanging, handwritten or otherwise), decal, placard,
flashing, moving or hanging lights, lettering or any other advertising matter of
any kind or description. No symbol, design, name, xxxx or insignia adopted by
Landlord for the Retail Development shall be used without the prior written
approval of Landlord. Any interior signs must be in good taste and prepared
professionally (not hand-lettered) so as not to detract from the appearance of
the Leased Premises or the Shopping Center. Any sign or display visible from the
exterior of the Leased Premises which does not meet the above criteria may be
removed at any time by Landlord without Landlord incurring any liability
therefor, and without such removal constituting a breach of this Lease or
entitling Tenant to claim damages on account thereof. Tenant shall be
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permitted to install a video wall within the Leased Premises (but not within
five (5) feet of the storefront leaseline), which video wall may be visible from
outside the Leased Premises.
Landlord and Tenant agree to use commercially reasonable good faith efforts
to cooperate in the development of a storefront design to permit the
incorporation of a stock car replica above the storefront so long as the
installation complies with applicable codes and is reasonably in keeping with
the design criteria for entertainment uses in the Retail Development.
SECTION 4.4. TENANT'S WARRANTIES. Tenant warrants, represents, covenants
and agrees that, in the operation of its business within the Leased Premises,
Tenant shall: (a) pay before delinquency any and all taxes, assessments and
public charges levied, assessed or imposed upon Tenant's business, or upon
Tenant's fixtures, furnishings or equipment in the Leased Premises, or upon any
leasehold interest or personal property of any kind, owned by or placed in or
about the Leased Premises by Tenant or by anyone claiming by, through or under
Tenant, including, without limitation, any transfer taxes, and pay when and as
due all license fees, permit fees and charges of a similar nature required for
the conduct by Tenant or any subtenant or concessionaire of any business or
undertaking authorized hereunder to be conducted in or from the Leased Premises;
(b) observe all reasonable requirements promulgated by Landlord at any time and
from time to time relating to delivery vehicles, the delivery of merchandise,
and the storage and removal of trash and garbage; (c) not use any space outside
the Leased Premises for sale, storage or any other undertaking except as
provided herein; (d) not use the plumbing facilities in the Leased Premises for
any purpose other than that for which they were constructed, nor dispose of any
foreign substances therein; (e) not use any advertising medium or sound devices
inside or adjacent to the Leased Premises which produce or transmit sounds which
are intended to be audible beyond the interior of the Leased Premises it being
expressly understood that Tenant shall be required to soundproof the Leased
Premises so as to minimize the impact of the noise created by the Permitted Use
on other tenants and patrons of the Retail Development; (f) not permit any odor
to emanate from the Leased Premises which is objected to by Landlord or by any
tenant or occupant of the Retail Development (and, upon written notice from
Landlord, Tenant shall immediately cease and desist from causing such odor, and
Landlord may deem the failure by Tenant to do so, a material breach of this
Lease); (g) keep the Leased Premises and any platform, loading dock or service
area used by Tenant in a neat, clean, safe and sanitary condition; (h) promptly
comply with all present and future laws, ordinances, orders, rules, regulations
and requirements of all governmental authorities having jurisdiction, and
observe and comply with all covenants and restrictions of record and all notices
from Landlord's mortgagee, affecting or applicable to the Retail Development or
affecting or applicable to the Leased Premises or to the cleanliness, safety,
occupancy and use of the same, whether or not any such law, ordinance, order,
rule, regulation, covenant, restriction, or other requirement is substantial, or
foreseen or unforeseen, or ordinary or extraordinary, or shall necessitate
structural changes or improvements (provided, however, that Tenant shall not be
required to make any structural changes or improvements required pursuant to
this Section 4.4(h) with respect to the structural portions of the Leased
Premises originally constructed by Landlord, unless such change shall be
required by virtue of Tenant's use of the Leased Premises), shall interfere with
the use or enjoyment of the Leased Premises, or shall be directed to or imposed
upon Tenant or Landlord, and Tenant shall hold Landlord harmless from any and
all cost or expense on account thereof (as used in this Lease, the term "legal
requirements" shall include the requirements set forth in this subparagraph);
(i) not use the parking areas or sidewalks, common areas or any space on or
about the Retail Development (outside the Leased Premises) for display, sale,
handbilling, advertising, solicitation, or any other similar undertaking; (j)
maintain and operate the heating, ventilating and air conditioning system and
equipment servicing the Leased Premises so as to adequately heat and cool the
same and to maintain at all times, whether or not Tenant is open for business,
temperatures in the Leased Premises which will not drain heat or ventilation or
air conditioning from the enclosed mall or other interior areas into the Leased
Premises and shall not discharge heat, ventilation or air conditioning from the
Leased Premises into the enclosed mall or other interior areas; and (k) be
authorized to do business in the State, evidence of which must be delivered to
Landlord on or before the earlier of (I) the Commencement Date or (II) the date
that Tenant opens for business in the Leased Premises.
SECTION 4.5. STORAGE AND OFFICE SPACE. Tenant shall store or stock in the
Leased Premises only such goods, wares and merchandise as Tenant intends to
offer for sale at, in, from, or upon the Leased Premises or as are required to
repair and maintain the improvements and simulators in the Leased Premises. This
shall not preclude occasional emergency transfers of merchandise to the other
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stores of Tenant, if any, not located in the Shopping Center. Tenant shall use
for office, clerical or other non-selling purposes only such space in the Leased
Premises as is from time to time reasonably required for Tenant's business
therein, and Tenant shall not perform any office or clerical function in the
Leased Premises for any store located elsewhere.
SECTION 4.6 CARE OF PREMISES. Tenant shall keep the Leased Premises
(including the exterior and interior portions of all windows, doors and all
other glass and signs) orderly, neat, safe and clean and free from rubbish or
dirt at all times and shall store all trash and garbage only in the areas
reasonably designated by Landlord for such storage and accumulation. Tenant
shall not move any safe, heavy machinery, heavy equipment, or fixtures into or
out of the Leased Premises without Landlord's prior written consent, except
that, during hours when the Shopping Center is not open to the public, Tenant
shall be permitted to move equipment associated with its Permitted Use provided
that Tenant uses its best efforts to protect the common area improvements from
damage and agrees to assume responsibility for any damage resulting from the
same. Tenant agrees that it will not place a load on any floor exceeding the
floor load per square foot which such floor was designed to carry, and will not
install, operate or maintain in the Leased Premises any heavy equipment except
in such manners as to achieve a proper distribution of weight. Landlord and
Tenant shall cooperate in their efforts to insure that the Leased Premises are
designed to accommodate the Permitted Use.
SECTION 4.7. NOTICE BY TENANT. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the Leased Premises, or in the building
of which the Leased Premises are a part of, or of defects therein or in any
fixtures or equipment.
SECTION 4.8. RADIUS. Tenant acknowledges that the Retail Development draws
it customers from a large geographic area, relying in part on regional and
international tourism, and that the success of the Retail Development and income
of the Landlord therefrom are dependent upon maximum customer traffic within the
Retail Development. In addition, Tenant acknowledges that Landlord is relying on
the generation of Percentage Rent from Tenant's Gross Sales at the Leased
Premises. During the Term, in the event Tenant, or any person, firm or
corporation who or which controls or is controlled by Tenant (an "Affiliate")
shall directly or indirectly, either individually or as a partner or stockholder
or otherwise, own, operate, or obtain a controlling interest (i.e. own more than
fifty percent (50%) of the shares or interest) in any business similar to or in
competition with the business of Tenant described in Article IV ("competing
business"), which business is conducted within the Area (as said term is herein
defined), then the Gross Sales (as said term is defined in this Lease) of any
such competing business within said Area shall be included in Tenant's Gross
Sales made from the Leased Premises and the Percentage Rent hereunder shall be
computed upon the aggregate of Tenant's Gross Sales made from the Leased
Premises and made from each such competing business then conducted within said
Area. Tenant shall be obligated to provide Landlord with full and complete Gross
Sales information and reports with respect to any competing business within the
Area in accordance with the requirements of Article II of this Lease and Tenant
shall be obligated to include the applicable portion of the Gross Sales of such
competing business with the Gross Sales of the Leased Premises and to pay
Percentage Rent thereon in accordance with the terms of this Lease. The "Area"
shall be defined as the area falling within a radius of ten (10) miles measured
from the outside boundary of the Retail Development. This Section 4.8 shall not
apply to any competing business which is open and is being operated by Tenant
within said Area on the Effective Date.
ARTICLE V
COMMON AREA
SECTION 5.1. USE OF COMMON AREA. Landlord agrees to cause to be operated,
managed and maintained during the Term all of the common areas of the Shopping
Center. The term "common areas", as used in this Lease, shall mean the parking
areas, pedestrian sidewalks and bridges, truckways, loading docks, delivery
areas, park areas, pedestrian malls and courts, elevators and escalators, if
any, and stairs not contained in leased areas, public restrooms and comfort
stations, if any, service areas, fire, service and exit corridors, passageways,
landscaped areas, berms and all other areas or improvements which may be
provided for the convenience of the occupants
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and tenants of the Retail Development and their respective agents, employees,
customers, invitees, and the licensees and invitees of Landlord. The use and
occupancy by Tenant of the Leased Premises shall include the non-exclusive use,
in common with all others to whom Landlord has or may hereafter grant rights to
use the same (including, but not limited to, the owners, tenants and occupants
of the Shopping Center), of the common areas and of such other facilities as may
be designated by Landlord from time to time; subject, however, to rules and
regulations for the use thereof which will be uniformly applicable to all
Shopping Center tenants as prescribed from time to time by Landlord. In
particular, Tenant and its employees shall park their cars only in the areas
specifically designated from time to time by Landlord for that purpose. Tenant
covenants that it will enforce the parking by its employees in such designated
areas. Automobile license numbers of employees' cars shall be furnished by
Tenant to Landlord within five (5) days after Landlord's request. In the event
any vehicle is parked by an employee of Tenant in a non-employee parking area,
Landlord shall have the right to cause the vehicle to be towed to a location
designated by Landlord and Tenant shall be obligated to reimburse Landlord for
all towing charges. Landlord may at any time close temporarily any common area
to make repairs or changes, to prevent the acquisition of public rights in such
areas and to discourage non-customer use, provided the same shall not materially
adversely affect access to or visibility of the Leased Premises. In addition,
Landlord may modify, from time to time, the traffic flow pattern and layout of
parking spaces and the entrances-exits to adjoining public streets or walkways,
utilize portions of the common areas for entertainment, displays and charitable
activities and may do such other acts in and to the common areas as in its
judgment may be desirable to improve the convenience or attraction thereof.
Landlord agrees to maintain all common areas of the Shopping Center in good
order, condition and repair and in a safe, clean, sightly and sanitary condition
in accordance with good and accepted shopping center practices. The maintenance
obligations of Landlord shall include, without limitation, the re-striping of
parking areas when required, repairing of common areas and adequate lighting of
all exterior common areas during all hours of darkness during which Tenant shall
be open for business and for one (1) hour thereafter.
SECTION 5.2. COMMON AREA MAINTENANCE EXPENSES. (a) Tenant agrees to pay to
Landlord each Lease Year, in the manner hereinafter provided, Tenant's
proportionate share of all costs and expenses (the "Common Area Maintenance
Expenses") of every kind and nature paid or incurred by Landlord, or for which
Landlord is obligated, during each Lease Year, for operating, equipping,
policing and protecting, heating, air conditioning, providing sanitation and
sewer and other services, lighting, insuring, repairing, replacing and
maintaining (i) the common areas, and (ii) all buildings and roofs within the
Retail Development, and (iii) all other areas, facilities and buildings used in
connection with the maintenance and/or operation of, and whether located within
or outside of, the Retail Development, including without limitation, all roads
and driveways serving the Retail Development which are maintained or repaired by
Landlord or at Landlord's expense. The Common Area Maintenance Expenses shall
include, but are not limited to, costs and expenses of: water, gas, sewage,
electricity, refuse disposal, air conditioning, heating and other utilities
(without limitation), including all usage, service, hook-up, connection,
availability and/or standby fees or charges pertaining to same, and the utility
costs; illumination and maintenance of signs, whether located on or off the
Retail Development property; salaries of all management personnel; maintenance,
repair and replacement of directories, electronic or otherwise, cleaning,
lighting, snow removal and landscaping; security control and fire protection;
uniforms for maintenance, administrative and security personnel for the Retail
Development; management fees; maintenance for wooded areas, retention ponds,
wetlands, rivers and riverbank areas; premiums for insurance to the extent
maintained by Landlord, for liability, casualty and property damage, including,
without limitation, insurance against vandalism, plate glass breakage, fire and
extended coverage insurance and such other coverage as determined by Landlord,
and liability for defamation and claims of false arrest occurring in and about
such areas; personal property taxes; maintaining and replacing the equipment, if
any, supplying music to such areas; the reasonable depreciation of equipment
used in the operation and maintenance of such areas; total compensation and
benefits (including premiums for workers' compensation and other insurance) paid
to or on behalf of persons involved in the performance or
administration/technical support of the work specified in this Section 5.2;
repair, maintenance and cleaning of such areas; operation, repair, maintenance
and reasonable depreciation of all temporary and permanent utility systems for
the Retail Development, including, without limitation, heating,
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ventilating and air conditioning systems (HVAC systems), gas system(s), plumbing
system(s), electrical equipment and irrigational pumping system(s); operation,
repair, maintenance and reasonable depreciation of emergency water and sprinkler
main system(s) and security alarm system(s); operation maintenance, repair and
replacement of mechanical equipment including any automatic door openers,
elevators, escalators, lighting fixtures (including replacement of poles, tubes
and bulbs) and all other items of equipment used in connection with such areas;
paper supplies in restrooms located in or about such areas, cleaning, lighting,
striping and landscaping, curbs, gutters, sidewalks, drainage and irrigation
ditches, conduits, pipes and canals serving the Retail Development; and there
shall also be added to the foregoing costs and expenses an amount equal to
fifteen percent (15%) of the total of all of the ongoing costs and expenses as
Landlord's administrative fee. As stated throughout this Lease, whenever Tenant
is obligated to pay its "proportionate share" of a cost, expense or Taxes (as
hereinafter defined) such share shall be based on gross leased and occupied
floor area in the Shopping Center, and Tenant's proportionate share shall be
that fraction, the numerator of which is the total square footage of floor area
in the Leased Premises, and the denominator of which is the total square footage
of gross leased and occupied floor area (including the Leased Premises) in the
Shopping Center. As used throughout this Lease, the "gross leased and occupied
floor area" in effect for the whole of any Lease Year shall be the average of
the gross leased and occupied floor area in effect on the first day of each
calendar month in such Lease Year.
Prior to the proration of such Common Area Maintenance Expenses to Tenant,
there shall be deducted from the total of such Common Area Maintenance Expenses
any amounts specifically contributed by the Major Tenants toward such Common
Area Maintenance Expenses. It is further agreed that in no event shall Tenant be
obligated for the capital costs of initially constructing the Retail Development
or the capital costs of subsequent expansion construction for the Retail
Development (i.e., adding new Major Tenants to the development or expanding the
Shopping Center or the common areas). Notwithstanding anything contained in this
Lease to the contrary, the following shall be excluded from Common Area
Maintenance Expenses in calculating Tenant's proportionate share: (i) the
capital costs of initially constructing the Retail Development or the capital
costs of subsequent expansion construction for the Retail Development; (ii)
executive salaries (employees senior to management personnel); (iii) leasing
commissions and the expense of preparing leases; (iv) debt service and
amortization under any mortgage encumbering the Shopping Center and charges and
fees incurred by Landlord in connection with the procurement and recording of
such mortgages or rental under any ground lease or other underlying lease; (v)
the costs of Landlord's Work in connection with preparing any tenant's space
(vi) any costs for which Landlord is reimbursed by insurance proceeds or
condemnation awards; (vii) costs for which Landlord is reimbursed by individual
tenants of the Shopping Center (viii) to the extent that any employee of
Landlord performs work or services other than for the Retail Development, the
portion of his salary allocable to work not performed in connection with the
Retail Development; (ix) the costs of correcting defects in or inadequacies of
the initial design or construction of the Shopping Center, or repair and/or
replacement of any of the original materials or equipment required as a result
of such defects or inadequacies; (x) any expense resulting from the negligence
of Landlord, its agents, servants or employees, or any expense incurred as a
direct result of Landlord's failure to use reasonable efforts to minimize
expenses to the extent possible without detracting from the standards of a first
class Shopping Center; (xi) the cost of any repair to remedy damage caused by or
resulting from the negligence of any other tenant(s) in the Shopping Center,
including their agents, servants or employees; (xii) repairs or other work
occasioned by casualty or the exercise of the right of eminent domain; (xiii)
expenses incurred in build out, renovation or other improvement or decoration,
painting or redecoration of any leasable area; (xiv) costs incurred due to the
violation by Landlord or any tenant or occupant of any term or condition of any
lease or rental arrangement covering space in the Shopping Center; (xv) any
interest or penalties incurred as a result of Landlord's failure to pay any xxxx
as the same shall become due; (xvi) any and all costs associated with the
operation of the business of the entity which constitutes Landlord, intending by
this exclusion to distinguish the costs of operation of the common areas
(excluded items shall specifically include but shall not be limited to formation
of the entity, internal accounting and legal matters, including, but not limited
to preparation of tax returns and financial statements and gathering of data
therefor, costs of defending any lawsuits, except as the actions of Tenant may
be an issue, costs of selling, syndication, financing mortgaging or
hypothecating any of Landlord's interest in the Shopping Center, and costs of
any disputes between Landlord and its employees); (xvii) advertising and
promotional expenditures or customer services, (xviii) costs, fines, or fees
incurred by Landlord
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Shopping Center, and costs of any disputes between Landlord and its employees);
(xvii) advertising and promotional expenditures or customer services; (xviii)
costs, fines, or fees incurred by Landlord due to violations of any federal,
state or local law, statute or ordinance, or any rules, regulations, judgment or
decree of any governmental rule or authority; (xix) the cost of any work or
services performed for any facility other than the Shopping Center. Replacements
of existing improvements, facilities, and equipment (including, by way of
example, parking lot repairs, structural repairs, replacement of HVAC or
mechanical equipment) otherwise chargeable as Common Area Maintenance Expenses
having a useful life of more than one year shall be amortized over the useful
life of the replacement, and only the reasonably amortized portion thereof shall
be included in Common Area Maintenance Expenses.
Tenant's proportionate share of Common Area Maintenance Expenses from the
Commencement Date through December 31, 2000 shall not exceed [***] per square
foot of floor area in the Leased Premises per Lease Year (proportionately
reduced for a partial Lease Year). From January 1, 2001 through December 31,
2001, Tenant's proportionate share of Common Area Maintenance Expenses shall not
exceed [***] per square foot of floor area in the Leased Premises per Lease Year
(proportionately reduced for a partial Lease Year). Beginning January 1, 2002
and continuing through the expiration of the Original Term and Option Period,
if any, Tenant's proportionate share of Common Area Maintenance Expenses shall
not be increased by more than [***] per Lease Year.
It is hereby agreed that at such times as there are tenants occupying less
than eighty-five percent (85%) of the gross leasable floor area of the Shopping
Center, Tenant's proportionate share of the foregoing Common Area Maintenance
Expenses shall be computed as if the Shopping Center were eighty-five percent
(85%) leased and occupied.
(b) Tenant's proportionate share of such Common Area Maintenance Expenses
for each Lease Year shall be paid in advance, in equal monthly installments, in
the same manner and at the same time as the monthly installments of Minimum Rent
are payable hereunder without deduction, offset or diminution of any kind, based
on an amount estimated in advance from time to time by Landlord to be Tenant's
obligation under this Section 5.2. Notwithstanding the above, in the event
Landlord at any time determines that the amount of Common Area Maintenance
Expenses actually being paid or incurred by Landlord exceeds the estimate upon
which Tenant's proportionate share of Common Area Maintenance Expenses was
computed, then Tenant, following a request from Landlord, shall commence to pay
with the next monthly installment of Minimum Rent due an amount sufficient to
result in Tenant's paying its full proportionate share of Common Area
Maintenance Expenses as computed on the basis of Landlord's revised estimate of
Common Area Maintenance Expenses. Subsequent to the end of each Lease Year,
Landlord shall furnish Tenant with a statement of the actual amount of Tenant's
proportionate share of such Common Area Maintenance Expenses for such period
which statement shall be in reasonable detail, provided, however, Landlord shall
be permitted to describe areas of expenditure by category and shall not be
obligated to enumerate each specific expenditure. Upon Tenant's written request
therefore, but no more frequently than once per Lease Year, Landlord shall
provide Tenant written evidence substantiating up to three (3) particular items
included in Tenant's share of Common Area Maintenance Expenses. Landlord shall
make reasonable good faith efforts to answer or resolve Tenant's legitimate
questions about the Common Area Maintenance Expenses.
If the total amount paid by Tenant under this Section 5.2 for any Lease
Year shall be less than the actual amount due from Tenant for such Lease Year as
shown on such statement, Tenant shall pay Landlord the difference between the
amount paid by Tenant and the actual amount due, such deficiency to be paid
within thirty (30) days after the furnishing of each such statement, and if the
total amount paid by Tenant hereunder for any such Lease Year shall exceed the
actual amount due from Tenant for such Lease Year, such excess shall be credited
against the next installment due from Tenant to Landlord under this Section 5.2.
*** Confidential treatment requested.
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ARTICLE VI
REPAIRS AND MAINTENANCE
SECTION 6.1. REPAIRS AND MAINTENANCE BY LANDLORD. Landlord agrees to
keep in good order, condition and repair the roof (including keeping the roof
watertight), foundations, exterior (including exterior painting and finish),
all structural portions of the Leased Premises (and of the building in which
the Leased Premises are located) and all plumbing and utility lines not
exclusively serving the Leased Premises. Should any repairs, modifications or
alterations be required by reason of applicable law, the same shall be made by
Landlord at Landlord's cost and expense unless the need for such repairs,
modifications or alterations shall result from Tenant's failure to perform its
obligations under this Lease or from Tenant's use of the Leased Premises for
other than general merchandising purposes. In addition, for the first twelve
(12) months only following the Delivery of Possession Date, Landlord shall,
upon written notice from Tenant of the necessity therefor, correct any defects
in Landlord's Work within the Leased Premises. All costs and expenses incurred
by Landlord under this Section 6.1 shall be included in Common Area Maintenance
Expenses, other than costs and expenses for Landlord's correction of defects in
Landlord's Work or other amount that may be excluded as Common Area Maintenance
Expenses pursuant to a specific exclusion contained in Section 5.2 hereof.
SECTION 6.2. REPAIRS AND MAINTENANCE BY TENANT. (a) Except for the
repairs and maintenance that Landlord is specifically obligated to make or
perform pursuant to Section 6.1 above, throughout the entire Term of this
Lease, Tenant, at its expense, shall promptly make all repairs and replacements
and perform maintenance in and to the Leased Premises and all equipment and
fixtures therein or appurtenant thereto, that are necessary or desirable in
order to keep the Leased Premises in good order, condition and repair and in
safe, dry and tenantable condition. Without limiting the generality of the
foregoing Tenant, at its expense, shall maintain and promptly make any and all
necessary repairs to or replacement of: (i) that portion of any pipes, lines,
ducts, wires or conduits that exclusively serve the Leased Premises; (ii) the
glass windows, plate glass doors, and all fixtures or appurtenances composed of
glass that are located in or about the Leased Premises; (iii) Tenant's signs;
(iv) the floor and floor coverings, doors and door frames, windows and window
frames, walls, storefront including security gates, grilles or enclosures,
locks and closing devices, partitions and ceilings in the Leased Premises; (v)
heating, ventilating, air conditioning, electrical and plumbing system(s)
equipment and fixtures (whether contained within or outside the Leased
Premises) which are installed by Tenant or which exclusively serve the Leased
Premises; and (vi) the Leased Premises or any part of the Shopping Center when
repairs thereto are necessitated by any act or omission (negligent or
otherwise) of Tenant or any of Tenant's agents, employees or invitees, or by
the failure of Tenant to perform any of its obligations under this Lease.
Notwithstanding the foregoing, Landlord shall be responsible for repairs and
maintenance necessitated by the negligence or intentional acts of Landlord, its
agents or employees. Notwithstanding any contrary provision of this Article VI,
Tenant, at its expense, shall make any and all repairs to the Leased Premises
as may be necessitated by any break-in, forcible entry or other trespass into
or upon the Leased Premises, regardless of whether or not such entry and damage
is caused by the negligence or fault of Tenant or occurs during or after
business hours. Tenant, at its expense, shall change all air conditioning
filters at least five (5) times per year and shall have the air conditioning
system professionally inspected and generally serviced at least twice per year.
(b) Tenant shall keep and maintain the Leased Premises in a clean,
sanitary and safe condition in accordance with the laws of the State and in
accordance with all directions, rules and regulations of the health officer,
building inspector, the National Fire Protection association and any other
officials of the governmental agencies having jurisdiction, at the sole cost
and expense of Tenant, and Tenant shall comply with all requirements of laws,
ordinances, rules, regulations and orders of any lawful authority having
jurisdiction affecting the Leased Premises or Tenant's use thereof. Tenant, at
its expense, shall install and maintain fire extinguishers and other fire
protection devices as may be required by reason of the conduct of Tenant's
business, from time to time by any agency having jurisdiction or the
underwriters insuring the building in which the Leased Premises are located. If
any bureau, department or official of the Federal or State government requires
or recommends the installation of any changes, modifications or alterations in
the sprinkler system or additional sprinkler heads or other equipment
(hereinafter in this subsection (b) collectively
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"changes") by reason of Tenant's business, or the location of partitions, trade
fixtures, or other contents of the Leased Premises, or for any other reason, or
if any such changes become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rates set by any fire insurance company, Tenant, at Tenant's expense, shall
promptly make such changes as required.
(c) Tenant agrees that Tenant's use of electrical current will at no time
exceed the capacity of the electric distribution system and that Tenant will
not make any alteration or addition to Tenant's electrical system without
Landlord's prior written consent. If Tenant installs any electrical equipment
that overloads the electrical lines in the Leased Premises or the Retail
Development, Tenant shall, at Tenant's sole cost and expense, be required to
make whatever changes to such electrical equipment and in the electric wiring
in the Leased Premises (but only after obtaining Landlord's written approval)
as may be necessary in order to remedy such overloading and be in compliance
with all insurance and legal requirements. All changes required to be made
hereby shall result in the continued conformance with the provisions of Exhibit
D and this Lease.
(d) If Tenant refuses or neglects to properly maintain the Leased
Premises, or to commence or to complete repairs promptly and adequately, or if
Landlord finds it necessary to make any repairs or replacements otherwise
required to be made by Tenant, then Landlord may, after ten (10) days prior
written notice to Tenant (except in the event of an emergency in which event no
notice shall be required) with Tenant having the opportunity to cure or to
commence to cure during such ten (10) day period (in which event Landlord shall
not take action so long as Tenant is diligently pursuing such cure to
completion), in addition to all other remedies, but without obligation to do
so, enter the Leased Premises and proceed forthwith to have such maintenance,
repairs or replacements made and Tenant shall pay to Landlord, on demand, the
cost and expenses therefor plus a charge of fifteen percent (15%) of such costs
and expenses.
ARTICLE VII
TAXES
Section 7.1 Tax Liability. Tenant agrees to pay to Landlord Tenant's
proportionate share of all taxes and assessments and service payments in lieu of
taxes of every nature and kind which may be levied or assessed by, or payable
to, any lawful authority during or with respect to each fiscal tax year falling
in whole or in part during the Term of this Lease against any or all or any
part of the land, buildings and improvements comprising the Retail Development
and any other taxes which Landlord becomes obligated to pay with respect to the
Retail Development, whether or not the same are assessed as real or personal
property or are payable in advance or in arrears (the "Taxes"). If due to a
future change in the method of taxation, any tax, excise or assessment shall be
levied or assessed against Landlord, directly or indirectly, in lieu of, in
substitution for or as a supplement to any present Taxes or future (real estate
or personal property) tax, in whole or in part, including any new tax, excise
or assessment upon rentals payable to Landlord by occupants of the Retail
Development or upon gross receipts or other income of Landlord derived by
Landlord from or upon the interest in the Retail Development of Landlord (or
any individuals or entities comprising Landlord), such tax, excise or
assessment shall constitute a tax respecting which Tenant is obligated to pay
its proportionate share to Landlord as provided herein. If any Taxes or
assessed valuation(s) are contested by Landlord, then Tenant's proportionate
share of Taxes shall also include Tenant's proportionate share of the cost and
expense of consultation services incurred in evaluating and contesting such
Taxes or assessed valuation(s).
The term "Taxes" shall also include any form of assessment, special
assessment, license fee, license tax, business license fee, business license
tax, commercial rental tax, levy, charge, tax or similar imposition, imposed by
any authority having the direct power to tax, including without limitation
any city, county, State or Federal government, or any school, agricultural,
lighting, drainage or other improvement or special assessment district or any
other agency or other public body, whether or not consented to or joined in by
Landlord and whether or not retroactive, payable by Landlord thereof as against
the land and improvements comprising, or any legal or equitable interest of the
Landlord in, the Retail Development. Notwithstanding anything to the contrary
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contained in this Section 7.1, Tenant shall not be obligated, pursuant to this
Section 7.2, to pay Landlord its proportionate share of any inheritance,
estate, succession, transfer, gift or franchise tax, levy assessment or
surcharge that may be imposed on Landlord or the individuals or entities which
constitute the partners of the partnership which is Landlord, unless the same
is imposed by way of substitution for all or any part of the "Taxes" otherwise
required to be paid in whole or in part by Tenant pursuant to this Lease; the
foregoing shall not exempt or exclude from the Taxes to be prorated among
Shopping Center tenants (including Tenant) levies, taxes, assessments or
surcharges based on the rentals or other revenues or gross income of Landlord
derived from the Shopping Center (as opposed to Landlord's net income) or other
charges payable to Landlord by Tenant or other tenants in or occupants of the
Shopping Center.
SECTION 7.2. METHOD OF PAYMENT. Tenant's proportionate share of Taxes
shall be paid, in advance, in monthly installments on or before the first day
of each calendar month, in the same manner and at the same time as the monthly
installments of Minimum Rent are payable hereunder without deduction, offset or
diminution of any kind, based on an amount estimated by Landlord. Following
receipt of all bills for Taxes attributable to any calendar or fiscal year
during the Term hereof, Landlord shall furnish Tenant with a written statement
of the actual amount of Tenant's proportionate share of Taxes for such year. If
any xxxx for any such Taxes is not available, Landlord will estimate the amount
of such tax. If the total amount paid by Tenant hereunder for any calendar or
fiscal year during the Term of this Lease shall be less than the actual amount
due from Tenant for such year, as shown on such statement, Tenant shall pay to
Landlord the difference between the amount paid by Tenant and the actual amount
due, such deficiency to be paid within thirty (30) days after demand therefor
by Landlord; and if the total amount paid by Tenant hereunder for any such
calendar or fiscal year shall exceed such actual amount due from Tenant for
such year, such excess shall be credited against the next installment of Taxes
due from Tenant to Landlord hereunder. For the calendar or fiscal years in
which this Lease commences and terminates, Tenant's liability for its
proportionate share of any Taxes for such years shall be subject to a pro rata
adjustment based on the number of days of said calendar or fiscal years during
which the Term of this Lease is in effect. A copy of any such xxxx for Taxes
shall at all times be sufficient evidence of the amount of Taxes assessed or
levied against the property to which such xxxx relates. Prior to or at the
commencement of the Term of this Lease and from time to time thereafter
throughout the Term hereof, Landlord shall notify Tenant in writing of
Landlord's estimate of Tenant's monthly installments due hereunder. Tenant's
obligations under this Article VII shall survive the Expiration Date or sooner
termination of this Lease.
ARTICLE VIII
INSURANCE, INDEMNITY AND LIABILITY
SECTION 8.1. LANDLORD'S INSURANCE OBLIGATIONS. Landlord agrees to obtain
and maintain during the Term hereof, to the extent the same is available, fire
and extended coverage insurance, in amounts and coverages and with such special
endorsements as Landlord shall determine from time to time, insuring the
building in which the Leased Premises are located and the improvements to the
Leased Premises provided by Tenant pursuant to this Lease (exclusive of Tenant's
merchandise, trade fixtures, furnishings, equipment, plate glass, signs and
personal property of Tenant). Landlord shall also carry rental interruption
insurance in amounts at least equal to Tenant's total rental obligation for
twelve (12) full months under this Lease including the total of the estimated
costs to Tenant of Taxes and Common Area Maintenance Expenses (including
insurance) for such twelve (12) month period. Landlord will maintain during the
Term of this Lease, commercial general liability insurance, insuring against any
and all claims for personal injury, bodily injury, death, or property damage,
accruing in, on or about the common areas and other portions of the Shopping
Center not leased to tenants, with limits of not less than [***] with respect to
bodily injury and death and [***] with respect to property damage. Further
Landlord shall maintain fire and extended coverage insurance insuring the
improvements located within the Shopping Center (except for Tenant's trade
fixtures, furnishings, operating equipment and personal property) for [***] of
the full replacement cost thereof. Tenant acknowledges that such coverage may be
provided pursuant to a blanket policy for centers managed by Managing Agent (as
defined in Section 20.22 hereof). Tenant shall reimburse Landlord for its
proportionate share of the insurance
[***] Confidential treatment requested.
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costs incurred by Landlord under this Section 8.1 as part of Tenant's Common
Area Maintenance Expenses as provided in Section 5.2 hereof.
SECTION 8.2. TENANT'S INSURANCE OBLIGATIONS. (a) Provided Tenant is the
Tenant named on the Recital Page and a wholly-owned subsidiary of the Guarantor,
if any, and Tenant's and Guarantor's, if any, combined net worths are or
Tenant's net worth is at least equal to [***], Tenant shall have the right to
self-insure for any loss or damage of the type covered by standard fire and
extended coverage insurance with respect to personal property located on or
within the Leased Premises including alterations and improvements made by Tenant
to the extent the same are not covered by Landlord's fire and extended coverage
insurance. Tenant and Guarantor shall at their sole expenses, without regard to
fault on the part of any person, make and perform any repairs or restorations
which are required as a result of a casualty which would be covered by insurance
of the type described in this Section 8.2(a). Tenant, at Tenant's sole cost and
expense, shall obtain and maintain in effect commencing with the Delivery of
Possession Date and continuing throughout the Term of this Lease, insurance
policies providing for the following coverage: (i) all risk property insurance
against fire, theft, vandalism, malicious mischief, sprinkler leakage and such
additional perils as now are or hereafter may be included in a standard extended
coverage endorsement from time to time in general use in the State, insuring
Tenant's merchandise, trade fixtures, furnishings, equipment and all items of
personal property of Tenant and of anyone claiming by, through or under Tenant
located on or in the Leased Premises, and the amount of such insurance will be
set forth in an "agreed value endorsement" to the policy of such insurance, not
less than [***] of the full replacement value thereof without deduction for
depreciation, and with a deductible amount of not more than [***], provided,
however, any and all proceeds of such insurance, so long as this Lease shall
remain in effect, shall be used only to repair or replace or pay for the items
so insured; (ii) a commercial general liability policy, including insurance
protecting against any and all claims for injury to persons or property
occurring in or about the Leased Premises and protecting against assumed or
contractual liability under this Lease with respect to the Leased Premises and
the operations of Tenant and any subtenant of Tenant in, on or about the Leased
Premises, with such policy to be in the minimum amount of [***] single limit
coverage; (iii) products liability insurance for merchandise offered for sale or
lease from the Leased Premises, including (if this Lease covers leased premises
in which food and/or beverages are sold and/or consumed) liquor liability
coverage (if applicable to Tenant's business) and coverage for liability arising
out of the consumption of food and/or alcoholic beverages on or obtained at the
Leased Premises, of not less than [***] per occurrence for personal injury and
death and property damage; (iv) workers' compensation coverage as required by
law; (v) with respect to alterations, improvements and the like required or
permitted to be made by Tenant hereunder, contingent liability and builders risk
insurance in amounts satisfactory to Landlord; and (vi) the insurance required
under Exhibit D.
(b) All insurance policies herein to be procured by Tenant shall: (i) be
issued by insurance companies reasonably satisfactory to Landlord and
authorized to do business in the State; (ii) be written as primary policy
coverage and non-contributing with respect to any coverage which Landlord may
carry and that any coverage carried by Landlord shall be excess insurance;
(iii) insure and name Landlord, Landlord's managing agent, any mortgagee of the
Shopping Center and any parties in interest designated by Landlord as
additional insured, as their respective interests may appear (except with
respect to workers' compensation insurance); and (iv) contain any express
waiver of any right of subrogation by the insurance company against Landlord,
Landlord's managing agent and their respective agents, employees and
representatives which arises or might arise by reason of any payment under such
policy or by reason of any act or omission of Landlord, its agents, employees
or representatives. Neither the issuance of any insurance policy required
hereunder, nor the minimum limits specified herein with respect to Tenant's
insurance coverage, shall be deemed to limit or restrict in any way Tenant's
liability arising under or out of this Lease. With respect to each and every
one of the insurance policies herein required to be procured by Tenant, on or
before the Commencement Date and at least thirty (30) days before any such
insurance policy shall expire, Tenant shall deliver to Landlord upon Landlord's
written request a duplicate original or certified copy of each such policy or
a certificate of the insurer, certifying that such policy has been issued,
providing the coverage required by this Section 8.2 and containing provisions
specified herein, together with evidence of payment of all applicable premiums.
Any insurance required to be carried hereunder may be carried under a blanket
policy covering the Leased Premises and other locations
*** Confidential treatment requested.
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of Tenant. Each and every insurance policy required to be carried hereunder by
or on behalf of Tenant shall provide (and any certificate evidencing the
existence of each such insurance policy shall certify) that, unless Landlord
shall first have been given thirty (30) days' prior written notice thereof, the
insurer will not cancel, materially change or fail to renew the coverage
provided by such insurance policy. The term "insurance policy" as used herein
shall be deemed to include any extensions or renewals of such insurance policy.
In the event that Tenant shall fail to promptly furnish any insurance coverage
hereunder required to be procured by Tenant, Landlord, at its sole option, shall
have the right after ten (10) days prior written notice to Tenant to obtain the
same and pay the premium therefor for a period not exceeding one (1) year in
each instance, and the premium so paid by Landlord shall be immediately due and
payable by Tenant to Landlord as additional rent.
(c) Tenant shall not do or permit to be done any act or thing upon the
Leased Premises that will invalidate or be in conflict with fire insurance
policies covering the building containing the Leased Premises or any part
thereof, including all common areas, or fixtures and property therein, or any
other insurance policies or coverage referred to above in this Article VIII; and
Tenant shall promptly comply with all rules, orders, regulations, or
requirements relating to such insurance policies, and shall not do, or permit
anything to be done, in or upon the Leased Premises, or bring or keep anything
therein, which shall increase the rate of fire insurance on the building in
which the Leased Premises are located or on any property, including all common
areas, located therein, or increase the rate or rates of any other insurance
referred to hereinabove. If any act or omission of Tenant, its agents, employees
or contractors shall result in any increase in the premium rates applicable to
any such insurance policies carried by Landlord, or other increased costs to
Landlord in connection therewith, then Tenant shall reimburse Landlord on demand
as additional rent for the amount of any such increased rates or costs. In
particular, if Tenant uses the Leased Premises for the preparation of food,
Tenant shall reimburse Landlord on demand, for any part of the premium for
insurance coverage under Section 8.1 hereof required to be paid on account of
such use of the Leased Premises.
SECTION 8.3 MUTUAL COVENANT. Notwithstanding any provision of this Lease to
be contrary, Landlord and Tenant each hereby releases the other, its officers,
directors, employees, and agents from any and all liability or responsibility
for any loss, damage or injury caused by fire or other casualty for which
insurance containing a waiver of subrogation is carried by the injured party at
the time of such loss, damage or injury regardless of the extent of any recovery
by the injured party under such insurance. Both parties agree to carry casualty
insurance containing such waiver of subrogation.
Additionally, during any time when Tenant is self-insuring its insurance
obligations hereunder, Tenant hereby releases the Landlord, its officers,
directors, employees and agents from any and all liability or responsibility for
any loss, damage or injury caused by fire or other casualty, even if such loss,
damage or casualty is caused in whole or in part by Landlord or by any party for
whom Landlord may be responsible.
SECTION 8.4. COVENANT TO HOLD HARMLESS. Except with respect to the gross
negligence or wilful misconduct of Landlord its agents or employees (unless
covered or required to be covered by Tenant's insurance), Tenant hereby
indemnifies and agrees to hold harmless Landlord, its officers, directors,
partners, employees and agents and any mortgagee or master lessor of the
Shopping Center, from and against any and all claims, actions, damages,
liabilities, costs and expenses, including attorneys' fees, that (i) arise from
or are in connection with the possession, use, occupancy, management, repair,
maintenance or control of the Leased Premises, or any portion thereof, or (ii)
arise from or are in connection with any negligent or wrongful act or omission
of Tenant or Tenant's agents, employees, contractors, licensees or invitees, or
(iii) result from any default, breach, violation or nonperformance of this
Lease or any provision hereof by Tenant, or (iv) result from injury to person
or property or loss of life sustained in the Leased Premises or outside of the
Leased Premises resulting from acts or omissions within the Leased Premises.
Tenant shall, at its own cost and expense, defend any and all actions, suits
and proceedings which may be brought against Landlord or any mortgagee or
master lessor of the Shopping Center with respect to the foregoing. Tenant
shall pay, satisfy and discharge any and all judgments, orders and decrees
which may be received against Landlord or any such mortgagee or master lessor
in connection with the foregoing. In the event landlord or any other party so
indemnified, shall, without fault, be made a party to any litigation commenced
by or against Tenant, or if Landlord or any such party shall, in its sole
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discretion, intervene in such litigation to protect its interest hereunder,
then Tenant shall protect and hold them harmless and shall pay all costs,
expenses and attorney's fees incurred or paid by such party(ies) in connection
with such litigation.
Landlord hereby indemnifies and agrees to save harmless Tenant, its
officers, directors, partners, employees and agents from and against any and
all claims, actions, damages, liabilities, costs and expenses including
attorneys' fees in connection with loss of life, personal injury and/or damage
to property arising from or out of any occurrence in the common areas of the
Shopping Center unless caused by the negligence or default of Tenant, its
agents, contractors, employees, officers, directors, partners, subtenants or
concessionaires.
SECTION 8.5. LOSS AND DAMAGE. All Tenant's property of every kind and
description which may at any time be in the Leased Premises shall be kept at
Tenant's sole risk, and Landlord shall not be liable except to the extent
resulting from the negligence or intentional acts of Landlord, its agents or
employees to Tenant, its agents, employees or customers, for any damage, loss,
compensation, accident, or claims whatsoever resulting to Tenant or its
property from the necessity of repairing any portion of the Shopping Center;
and interruption in the use of the Leased Premises; the use or operation (by
Landlord, Tenant, or any other person or persons whatsoever) of any elevators,
heating, cooling, electrical or plumbing equipment or apparatus; the
termination of this Lease by reason of the destruction of the Leased Premises;
any fire, robbery, theft, or any other casualty; any leakage in any part or
portion of the Leased Premises or the Shopping Center; any water, wind, rain or
snow that may leak into, or flow from part of the Leased Premises or the
Shopping Center, any acts or omissions of any occupant of any space adjacent
to or adjoining all or any part of the Leased Premises or any part of the
building of which the Leased Premises are a part; any explosion, casualty,
utility failure or malfunction, or falling plaster; the bursting, stoppage or
leakage of any pipes, sewer pipes, drains, conduits, appliance or plumbing
works; or any other cause whatsoever.
ARTICLE IX
DESTRUCTION OF LEASED PREMISES
SECTION 9.1. CONTINUANCE OF LEASE. In the event of any damage to the
Leased Premises by fire or other casualty, this Lease shall not be terminated
or otherwise affected; except that, (a) if more than twenty-five percent (25%)
of the square footage of the Leased Premises shall be damaged by any such fire
or other casualty during the last three (3) years of the Term of this Lease
(not including any Option Periods) or during any renewal or extension of the
Term hereof and the cost of repair or restoration exceeds One Million and
00/100ths Dollars ($1,000,000.00) as estimated by Landlord, or (b) if Landlord
is unable to rebuild any portion of the building in which the Leased Premises
are located or of the Shopping Center due to any inability (after Landlord uses
commercially reasonable efforts) to obtain any required governmental approval
in connection therewith, or (c) if more than thirty-five percent (35%) of the
floor area of the building in which the Leased Premises are located or of the
Shopping Center shall be damaged or destroyed by fire or other casualty, or (d)
if twenty-five percent (25%) or more of the building in which the Leased
Premises are located or if twenty-five percent (25%) or more of the Shopping
Center or the Leased Premises shall be damaged or destroyed at any time by the
occurrence of any risk not insured under the insurance required to be carried
under Article VIII hereof, then Landlord shall have the option to terminate
this Lease within seventy-five (75) days following the occurrence of such fire
or other casualty by giving written notice to Tenant during such period. In the
event Landlord exercises any of the foregoing options to terminate, this Lease
shall immediately terminate upon Landlord's written notice to Tenant and (i)
the entire proceeds of the insurance provided for in Section 8.1 hereof shall
be paid by the insurance company or companies directly to Landlord and shall
belong to, and be the sole property of Landlord, (ii) the portion of the
proceeds of the insurance provided for in Section 8.2 which is allocable to
equipment, fixtures and other items, which, by the terms of this Lease,
rightfully belong to Landlord upon the termination of this Lease by whatever
cause, shall be paid by the insurance company or companies directly to
Landlord, and shall belong to, and be the sole property of, Landlord, and (iii)
Landlord and Tenant shall be relieved from any and all further liability or
obligation accruing under this Lease from and after the date of such
termination.
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Further, if Landlord cancels this Lease by virtue of the fact that it is
during the last three years of the Lease term. Tenant may nullify Landlord's
cancellation within thirty (30) days after receipt thereof by giving notice to
Landlord that Tenant elects to extend the term of the Lease pursuant to any
such right contained in this Lease, in which event the parties shall proceed to
restore in accordance with Section 9.2.
SECTION 9.2. RECONSTRUCTION. If the Leased Premises are damaged by fire or
other casualty and this Lease is not terminated in accordance with Section 9.1
hereof, then all fire and extended coverage insurance proceeds from policies
carried pursuant to Section 8.1 hereof, however recovered, shall be held in
escrow and made available for payment of the cost of repairing, replacing and
rebuilding the Leased Premises. Within seventy (75) days after the casualty
Landlord shall provide Tenant with a good faith estimate of the date on which
the reconstruction of the Leased Premises will be completed. The Minimum Rent
and other charges payable by Tenant to Landlord shall be abated in proportion to
the floor area of the Leased Premises rendered untenantable, and the Sales Break
Point shall likewise be proportionately reduced. Payment of Minimum Rent and all
other charges so abated shall commence and Tenant shall be obligated to reopen
for business ninety (90) days following the date that Landlord advises Tenant
that the Leased Premises are tenantable and Landlord has substantially completed
Landlord's Reconstruction Work, unless Tenant opens at an earlier time in the
damaged area or remains open in such area following destruction or damage, in
which event there shall be no abatement or any such abatement shall terminate as
of the date of Tenant's earlier reopening. Landlord shall be obligated to
commence Landlord's Reconstruction Work and shall diligently pursue the
completion of Landlord's Reconstruction Work and shall cause the same to be
completed as soon thereafter as possible under the attendant circumstances, but
in any event all such Landlord's Reconstruction Work shall be completed and the
Leased Premises reopened for business within one hundred eighty (180) days
following such fire or casualty. After Landlord has completed Landlord's
Reconstruction Work, Tenant shall commence Tenant's Reconstruction Work, at its
expense. Tenant shall comply with all laws, ordinances and governmental rules or
regulations, and shall perform all work or cause such work to be performed with
due diligence and in a first-class manner. All permits required in connection
with said repairs, restoration and reconstruction shall be obtained by Tenant at
Tenant's sole cost and expense. Any amount expended by Tenant in excess of any
insurance proceeds received by Tenant shall be the sole obligation of Tenant.
Landlord shall reconstruct such Leased Premises in accordance with the working
drawings originally approved by Landlord or with (at Landlord's sole election)
new drawings prepared by Tenant and acceptable to Landlord and Tenant
("Landlord's Reconstruction Work"). In no event shall Landlord be required to
repair or replace Tenant's merchandise, trade fixtures, furnishings or
equipment. If Landlord repairs or rebuilds, Tenant, at Tenant's sole cost, shall
repair or replace Tenant's merchandise, trade fixtures, furnishings and
equipment in a manner and to at least a condition equal to that prior to the
damage or destruction thereof ("Tenant's Reconstruction Work"). Except as may be
specifically set forth in this Article IX, Landlord shall not be liable or
obligated to Tenant to any extent whatsoever by reason of any fire or other
casualty damage to the Leased Premises, or any damages suffered by Tenant by
reason thereof, or the deprivation of Tenant's possession of all or any part of
the Leased Premises.
In the event Landlord has not commenced restoration or rebuilding of the
Leased Premises within ninety (90) days of the date of such fire or casualty
loss, or if the Leased Premises are not restored/rebuilt to its former condition
prior to such fire or casualty loss within one hundred eighty (180) days of the
date of such fire or casualty loss, Tenant will have the right, in either case,
to terminate this Lease by providing Landlord notice of such election and Tenant
will vacate and surrender the Leased Premises pursuant to Section 17.l.
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ARTICLE X
CONDEMNATION
SECTION 10.1 EMINENT DOMAIN. If fifty percent (50%) or more of the
floor area of the of the Leased Premises shall be taken or condemned by any
governmental authority (including, for purposes of this Article X, any purchase
by such governmental authority in lieu of a taking), then either party may
elect to terminate this Lease by giving notice to the other party not more than
ninety (90) days after the date on which such title shall vest in the
authority. If the parking facilities are reduced below the minimum parking
requirements imposed by the applicable authorities, Landlord may elect to
terminate this Lease by giving Tenant notice within one hundred eighty (180)
days after such taking. In addition, if any Major Tenant shall terminate its
lease with Landlord, pursuant to a taking of its store, Landlord may terminate
this Lease by written notice to Tenant within ninety (90) days after notice to
landlord that such Major Tenant is terminating its lease. In the case of any
taking or condemnation, whether or not the Term of this Lease shall cease and
terminate, the entire award shall be the property of Landlord; provided,
however, Tenant shall be entitled to any award as may be made for trade
fixtures and other equipment (not including any Tenant's Work required or
permitted under this Lease) which under the terms of this Lease would not have
become the property of Landlord; further provided, that any such award to
Tenant shall not be in diminution of any award otherwise to be made to Landlord
in the absence of such award to Tenant.
SECTION 10.2. RENT APPORTIONMENT. In the event of any taking or
condemnation, the then current Minimum Rent, Sales Break Point and the square
foot floor area in the Leased Premises as determined pursuant to Section 1.1
shall be apportioned as of the date when possession of the Leased Premises is
required to be delivered to the condemning authority or termination of this
Lease, as the case may be, and, if the Term of this Lease shall not have ceased
and have been terminated as of said date, Tenant shall be entitled to a pro
rata reduction in the Minimum Rent payable and Sales Break Point hereunder,
or, if Tenant has prepaid Minimum Rent, Tenant shall be entitled to a pro rata
credit for the Minimum Rent paid hereunder, based on the proportion which the
floor area taken from the Leased Premises bears to the entire floor area of the
Leased Premises immediately prior to such taking.
SECTION 10.3. TEMPORARY TAKING. Notwithstanding anything to the contrary
in this Article X, the requisitioning of the Leased Premises or any part hereof
by military or other public authority for purposes arising out of a temporary
emergency or other temporary situation or circumstances shall constitute a
taking of the Leased Premises by eminent domain when the use or occupancy by
the requisitioning authority is expressly provided to continue, or shall in
fact have continued, for a period of one hundred eighty (180) days or more, and
if this Lease is not thereafter terminated under the foregoing provisions of
this Article X, then for the duration of any period of use and occupancy of the
Leased Premises by the requisitioning authority, all the terms and provisions
of this Lease and obligations of Tenant hereunder shall remain in full force
and effect, except that the Minimum Rent and Sales Break Point shall be reduced
in the same proportion that the floor area of the Leased Premises so
requisitioned bears to the total floor area of the Leased Premises, and
Landlord shall be entitled to whatever compensation may be payable from the
requisitioning authority for the use and occupation of the Leased Premises for
the period involved.
ARTICLE XI
ASSIGNMENT, SUBLETTING AND ENCUMBERING LEASE
SECTION 11.1. NO ASSIGNMENT, SUBLETTING OR ENCUMBERING OF LEASE. (a) Except
as otherwise provided in this Article XI and notwithstanding any references to
assignees, subtenants, concessionaires or other similar entities in this Lease,
Tenant shall not (i) assign or otherwise transfer, or mortgage or otherwise
encumber, this Lease, in whole or in part, or any of its rights hereunder, (ii)
sublet the Leased Premises or any part thereof, or permit the use of the
Leased Premises or any part thereof by any persons other than Tenant or its
agents. Any such attempted or purported transfer, assignment, mortgaging or
encumbering of this Lease or any of Tenant's interest
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hereunder and any attempted or purported subletting or grant of a right to use
or occupy all or a portion of the Leased Premises in violation of the foregoing
sentence, whether voluntary or involuntary or by operation of law or otherwise,
shall be null and void and shall not confer any rights upon any purported
transferee, assignee, mortgagee, or occupant, and shall, at Landlord's option,
result in a "default" under this Lease. Nothing contained elsewhere in this
Lease shall authorize Tenant to enter into any franchise, concession, license,
permit, subtenancy, departmental operation arrangements or the like, except
pursuant to the provisions of this Article XI.
Notwithstanding anything to the contrary set forth in this Article XI, the
following shall govern with respect to certain types of transfers, it being
understood that Tenant shall have the right to assign, sublease, or otherwise
transfer its rights under this Lease provided that the conditions and
requirements applicable to the particular assignment, sublease or other
transfer that are specified in subparagraphs (A), (B), (C), OR (D) below are
satisfied:
(A) INTRA-ORGANIZATIONAL TRANSFER: Tenant shall have the right, without
Landlord's consent but with prior written notice to Landlord, to assign this
Lease or sublet the Leased Premises to its parent corporation or any of its
wholly-owned subsidiaries, or any affiliate or subsidiary of Tenant's parent
corporation provided that Tenant shall at all times remain primarily obligated
for the performance of the terms, covenants and conditions of this Lease.
(B) ASSIGNMENT AS PART OF A TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS
OF TENANT (Same Use): Landlord's consent shall not be unreasonably withheld or
delayed to an assignment of this Lease (by merger, consolidation or otherwise)
or a sublease for all or any portion of the Leased Premises to another entity
(the "Transferee") to which Tenant shall simultaneously be transferring all or
substantially all of its stock or all or substantially all of its assets,
provided that the following criteria are met: (1) Tenant shall not at the time
of such transfer be in default under any of the terms, covenants and conditions
of this Lease beyond any applicable grace period, (2) such Transferee shall
agree in writing to perform all of the unperformed terms, covenants and
conditions of this Lease, (3) Tenant shall at all times remain primarily
obligated for the performance of the terms, covenants and conditions of this
Lease and (4) the number of stores being transferred must consist of at least
three (3) stores.
(C) ASSIGNMENT AS PART OF A TRANSFER OF LESS THAN ALL OR SUBSTANTIALLY ALL
OF TENANT'S ASSETS (Same Use): Landlord shall not unreasonably withhold its
consent to an assignment, sublease or other transfer ("Transfer") of this Lease
to an entity to whom Tenant is transferring less than substantially all of
Tenant's assets ("Transferee") provided that the following requirements and
conditions shall be satisfied prior to any such Transfer: (i) at the time of
such proposed Transfer, Tenant is not in default of any of the terms, covenants
or conditions of this Lease and shall at such time be operating the Leased
Premises pursuant to Article IV of this Lease: (ii) the proposed Transferee
shall agree in writing to assume all of the terms, covenants or conditions to be
performed by Tenant hereunder, including, but not limited to, the obligation to
continue to operate the Leased Premises in accordance with Article IV of this
Lease: (iii) effective as of the date of such Transfer, the applicable Minimum
Rent as provided for in Section 2.1 shall be increased to the sum of the
applicable Minimum Rent [***] for the time period prior to such Transfer as
required to be paid by Tenant pursuant to Section 2.2 hereof and from and after
the date of the Transfer the Sales Break Point shall be adjusted also to the
quotient of the increased Minimum Rent divided by [***]; (iv) at the time of
such Transfer, the proposed Transferee shall have a net worth equal to or
greater than [***] [in 1999 Dollars] as shown in current certified financial
statements; and (v) the proposed Transferee has proven expertise and experience
in operating and managing an entertainment use in a shopping center environment.
In addition to Landlord's right to deny Tenant's proposed Transfer on the
grounds that the items enumerated in (i) through (v) of Section 11.1(a)(C) have
not been met, within fifteen (15) days after Landlord's receipt of notice from
Tenant of its intention to complete the Transfer as provided for in this Section
11.1(a)(C). Landlord may elect by notice (hereinafter called the "Same Use
Recapture Notice") in writing to tenant to terminate this Lease and recapture
the Leased Premises, in which event this Lease shall automatically terminate on
the ninetieth (90th) day (hereinafter called the "Same Use Recapture Date")
following Tenant's receipt of the Recapture Notice with the same
*** Confidential treatment requested.
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force and effect as if said Same Use Recapture Date had been designated as the
expiration date of this Lease, and Landlord and Tenant shall upon such Same Use
Recapture Date be released from any and all liabilities thereafter accruing
hereunder, provided, however that Landlord shall be obligated to repay to Tenant
the unamortized portion of the actual cost of Tenant's Work (less the Tenant
Allowance) plus the sum of [***] on or before the Same Use Recapture Date. All
Minimum Rent Percentage Rent and additional rent payable by Tenant hereunder
shall be apportioned as of the Same Use Recapture Date and Tenant shall promptly
pay to Landlord any amounts so determined to be due and owing by Tenant to
Landlord, and conversely Landlord shall promptly reimburse Tenant for any
amounts prepaid by Tenant for periods subsequent to the Same Use Recapture Date,
Notwithstanding any Same Use Recapture Notice given to Tenant by Landlord within
the aforesaid fifteen (15) day period. Tenant shall have the right within
fifteen (15) days after its receipt of the Same Use Recapture Notice to give
Landlord notice (hereinafter called the "Same Use Recision Notice") of its
recision of its intention to assign, transfer or sublease, and upon Landlord's
receipt of the Same Use Recision Notice the Same Use Recapture Notice previously
given by Landlord shall be deemed null and void; in such event, Tenant shall not
assign this Lease or sublet the Leased Premises as proposed in the notice of its
intention to assign or transfer the Lease or sublet the Leased Premises.
(D) ASSIGNMENT WITH PROPOSED CHANGE IN USE: Landlord's consent to an
assignment, transfer or sublease which results in a change in use shall not be
unreasonably withheld provided that the following criteria are met:
(i) the net worth of the assignee, transferee or sublessee shall be
equal to or greater than [***] [in 1999 Dollars] as shown in current
certified financial statements:
(ii) the proposed assignee, transferee or sublessee has proven experience
in the retail business to be conducted in the Leased Premises:
(iii) the proposed assignment, transfer or sublease applies to the entire
Leased Premises; and
(iv) the business to be conducted in the Leased Premises shall (A) not
violate an existing exclusive or restriction granted for the benefit
of another tenant in the Retail Development or (B) complement the
merchandising mix and program for the Retail Development being
promoted at the time of the proposed assignment (i, ii, iii, and iv
being collectively referred to as the "Criteria").
In the event Tenant proposes to assign its interest in this Lease or sublet
the whole of the Leased Premises pursuant to the terms of this Section
11.1(a)(D), it shall, notwithstanding Section 11.1(c) to the contrary, first
give thirty (30) days prior written notice thereof (hereinafter called the
"Assignment/Subletting Notice") to Landlord together with all other information
required pursuant to Section 11.1(c) hereof. In the event the proposed assignee
is unacceptable to Landlord, because in Landlord's reasonable belief the
Criteria have not been met. Landlord shall be permitted during the thirty (30)
day period to reject the proposed assignment and Tenant shall remain liable
under the Lease.
In addition, within thirty (30) days after Landlord's receipt of an
Assignment/Subletting Notice and such required and/or requested information from
Tenant as provided in this Section 11.1(a)(D). Landlord may elect by notice
(hereinafter called the "Recapture Notice") in writing to Tenant to terminate
this Lease and recapture the Leased Premises, in which event this Lease shall
automatically terminate on the ninetieth (90th) day (hereinafter called the
"Recapture Date") following Tenant's receipt of the Recapture Notice with the
same force and effect as if said Recapture Date had been designated as the
expiration date of this Lease, and Landlord and Tenant shall upon such Recapture
Date be released from any and all liabilities thereafter accruing hereunder,
provided, however that Tenant shall be obligated to repay to Landlord the
unamortized portion of the Tenant Allowance as provided for in Section 3.3
hereof on or before the Recapture Date. All Minimum Rent, Percentage Rent and
additional rent payable by Tenant hereunder shall be apportioned as of the
Recapture Date and Tenant shall promptly pay to Landlord any amounts so
determined to be due and owing by Tenant to Landlord, and conversely Landlord
shall promptly reimburse Tenant for any amounts prepaid by Tenant for periods
subsequent to the Recapture Date. Notwithstanding any Recapture Notice given to
Tenant by Landlord within the aforesaid thirty (30) day period. Tenant shall
have the right within fifteen (15) days after its receipt of the Recapture
Notice to give Landlord notice (hereinafter called the "Recision Notice") of its
recision of the
*** Confidential treatment requested.
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Assignment/Subletting Notice and upon Landlord's receipt of the Recision
Notice the Recapture Notice previously given by Landlord shall be deemed null
and void; in such event, Tenant shall not assign this Lease or sublet the
Leased Premises as proposed in its Assignment/Subletting Notice.
(b) Except as otherwise provided herein, if Tenant is a corporation, the
sale, issuance or transfer of any capital stock of Tenant or of any corporate
entity which directly or indirectly controls Tenant (unless Tenant is a
corporation whose stock is publicly traded) which shall result in a change in
the voting control of Tenant or the corporate entity which controls Tenant
shall be deemed to be a prohibited assignment of this Lease within the meaning
of this Article XI. If tenant is a partnership or an unincorporated
association, then the sale, issuance or transfer of a majority interest
therein, or the transfer of a majority interest in or a change in the voting
control of any partnership or unincorporated association which directly or
indirectly controls Tenant, or the transfer of any portion or all of any
general partnership or managing partnership interest, shall be deemed to be a
prohibited assignment of the Lease within the meaning of this Article XI.
Except as otherwise provided herein the consent by Landlord to any assignment,
transfer, or subletting to any party shall not be constructed as a waiver or
release of Tenant under the terms of any covenant or obligation under this
Lease or as a waiver or release of the non-assignability covenants in their
future application, nor shall the collection or acceptance of Rent from any
such assignee, transferee, subtenant or occupant constitute a waiver or release
of Tenant of any covenant or obligation contained in the Lease.
(i) Notwithstanding anything herein contained to the contrary, a
sale or transfer of any voting capital stock Tenant when caused by death (e.g.,
testamentary transfer) or for estate planning purposes (e.g. inter vivos trust)
will not be deemed a prohibited assignment of this Lease.
(ii) The provisions of this Section 11.1(b) shall not be deemed to
prohibit transfer of limited partnership interests among existing limited or
general partners; however, if either general partner ceases to remain general
partner of Tenant such occurrence shall be deemed a prohibited assignment of the
Lease under the meaning of this Article XI.
(iii) In addition, Tenant may, without violating the provisions of
this Article XI, and without consent of or notice to Landlord (i) sell or offer
for sale its voting capital stock to the public in accordance with the
qualifications or registration requirements of the state where Tenant is
incorporated and the Securities Act of 1933, as amended or (ii) issue or
transfer shares of Tenant's capital stock (whether or not such insurance or
transfer results in a change in the persons comprising majority shareholders of
Tenant) as part of a so-called "private placement".
(c) Without conferring any rights upon Tenant not otherwise provided in
this Article XI, should Tenant desire to enter into an assignment, sublease or
transfer of this Lease or Tenant's rights hereunder, Tenant shall request in
writing Landlord's consent to the assignment or where consent is not required,
provide Landlord prior written notice of the same at least fifteen (15) days
before the proposed effective date of the assignment (or within such other
timeframe as may be provided for herein for a specific type of assignment),
providing the following: (i) the full particulars of the proposed assignment,
sublease or transfer of this Lease or Tenant's rights hereunder, including its
nature (i.e. whether it is an assignment, sublease or transfer) and effective
date, terms and conditions; (ii) a description of the identity, net worth and
previous business experience of the proposed transferee, including, without
limitation, copies of the proposed transferee's latest income, balance sheet and
changes in financial position statements (with accompanying notes and
disclosures of all material changes thereto) in audited form, if available, and
certified as accurate by the proposed transferee; and (iii) any further
information reasonably relevant to the proposed assignment and reasonably
available to Tenant which Landlord shall request after receipt of Tenant's
request for consent. Tenant shall, concurrently with any request for Landlord's
consent, pay to Landlord a fee of [***] for Landlord's review and processing of
such request and Landlord shall not be obligated to review such request prior to
Landlord's receipt of such fee. All requests for assignment, sublease or
transfer shall be forwarded to Landlord at the address provided above and to the
on-site mall management office. To the extent Landlord's consent is required
Landlord shall be required to respond within the prescribed period (being a
minimum of 15 days) and if Landlord's response is a denial of the proposed
transfer Landlord shall give specific reasons for the denial. If Landlord
*** Confidential treatment requested.
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fails to respond within five (5) business days written notice from Tenant
(provided both to Landlord at the notice address and to the Mall Manager),
which notice must specify that Landlord has failed to respond to the initial
request and that failure to respond within five (5) days of the date of the
second notice will result in approval, then Landlord shall be deemed to have
approved the requested transfer.
(d) Except for a permitted assignment or subletting as specified in
Section 11.1(a) and (b) and without conferring any rights upon Tenant not
otherwise provided in this Article XI, in the event of an assignment or transfer
of Tenant's interest in this Lease, or sublease of all or a portion of the
Leased Premises, to a third party, any monthly rent or other payment accruing to
Tenant as the result of any such assignment, transfer, or sublease, including
any lump sum or periodic payment in any manner relating to such assignment,
transfer or sublease, which is in excess of the Rent then payable by Tenant
under this Lease less any amounts paid by Tenant in commissions, tenant
improvements, unamortized tenant improvements funded by Tenant and attorneys'
fees shall be paid [***] of such excess by Tenant to Landlord monthly as
additional rent. Landlord may require a certificate from Tenant specifying the
full amount of any such payment of whatsoever nature.
(e) Notwithstanding any assignment, subletting or transfer of this Lease
or Tenant's rights hereunder, Tenant shall remain fully liable on this Lease and
for the performance of all terms, covenants and provisions of this Lease;
provided, however, if the transferee, or assignee has a net worth equal to or in
excess of [***] [in 1999 Dollars] as shown in current certified financial
statements on the date of the transfer then Tenant shall be released from its
obligations with respect to the Lease from and after the date of the assignment
or transfer.
SECTION 11.2. ASSIGNMENT OR SUBLET. If this Lease is transferred or
assigned, in whole or in part in violation of the terms of this Lease, or if
the Leased Premises or any part thereof be sublet or occupied by any person or
entity other than Tenant in violation of the terms of this Lease, whether as a
result of any act or omission by Tenant, or operation of law, or otherwise,
then Landlord, whether before or after default by Tenant then Landlord may, in
addition to, and not in diminution of or substitution for, any other rights and
remedies under this Lease or pursuant to law to which Landlord may be entitled
as a result thereof, collect rent from the transferee, assignee, subtenant or
occupant and apply the net amount collected to the Rent herein reserved, but no
such transfer, assignment, subletting, occupancy or collection shall be deemed
a waiver of the covenants contained herein or the acceptance of the transferee,
assignee, subtenant, or occupant as Tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant set forth in
this Lease unless Tenant has been otherwise released, including without
limitation pursuant to Section 11.1(e).
SECTION 11.3. TRANSFER OF LANDLORD'S INTEREST. In the event of any
transfer of Landlord's interest in the Leased Premises, including a sale or
lease, the transferor shall be automatically relieved of any and all
obligations on the part of Landlord accruing from and after (but not before)
the date of such transfer, provided that (a) the interest of the transferor, as
Landlord, in any funds then in the hands of Landlord in which Tenant has an
interest shall be turned over, subject to such interest, to the then transferee;
and (b) notice of such sale, transfer or lease shall be delivered to Tenant as
required by law.
ARTICLE XII
SUBORDINATION, ATTORNMENT, FINANCING AND ESTOPPEL CERTIFICATE
SECTION 12.1. SUBORDINATION. Tenant agrees that this Lease shall, at the
request of Landlord, be subordinate to any mortgages or deeds of trust that are
now, or may hereafter be, placed upon the Leased Premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof, provided that the mortgagees or
beneficiaries named in said mortgages or deeds of trust shall agree to
recognize the interest of
*** Confidential treatment requested.
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Tenant under this Lease in the event of foreclosure, if Tenant is not then in
default. Tenant also agrees that any mortgage or beneficiary may elect to have
this Lease constitute a prior lien to its mortgage or deed of trust, and in the
event of such election and upon notification by such mortgagee or beneficiary
to Tenant to that effect, this Lease shall be deemed prior in lien to such
mortgage or deed of trust, whether this Lease is dated prior to or subsequent
to the date of said mortgage or deed of trust, Tenant agrees that upon the
request of Landlord, or any mortgage or beneficiary, Tenant shall execute
whatever reasonable instruments may be required to carry out the intent of this
Section 12.1 and Section 12.2; provided that no such instrument may contain any
matters which increase any of Tenant's obligations under this Lease or decrease
any of Tenant's rights under this Lease and such instrument will grant a
covenant of non-disturbance to Tenant.
SECTION 12.2 ATTORNMENT. In the event any proceedings are brought for
the foreclosure of, or in the event of the conveyance by deed in lieu of
foreclosure of, or in the event of exercise of the power of sale under, any
mortgage and/or deed of trust made by Landlord covering the Leased Premises, or
in the event Landlords sells, conveys or otherwise transfers its interest in
the Shopping Center or any portion thereof containing the Lease Premises, this
Lease shall remain in full force and effect and Tenant hereby attorns to, and
covenants and agrees to execute an instrument in writing reasonably
satisfactory to the new owner whereby Tenant attorns to such successor in
interest and recognizes such successor as Landlord under this Lease. Payment by
or performance of this Lease by any person, firm or corporation claiming an
interest in this Lease or the Leased Premises by, through or under Tenant
without Landlord's consent in writing shall not constitute an attornment or
create any interest in this Lease or the Leased Premises.
SECTION 12.3. FINANCING. [INTENTIONALLY DELETED]
SECTION 12.4. ESTOPPEL CERTIFICATE. Tenant shall, without charge
therefor, at any time and from time to time, within thirty (30) days after
request therefor by Landlord, execute, acknowledge and deliver to Landlord a
written estoppel certificate, in reasonable form, certifying to Landlord, any
mortgage, or any purchaser of the Shopping Center or any other person designated
by Landlord, as of the date of such estoppel certificate; (i) that Tenant is in
possession of the Leased Premises and has accepted the same; (ii) that this
Lease is unmodified and in full force and effect (or if there has been
modification, that the same is in full force and effect as modified and setting
forth such modifications); (iii) whether or not there are then existing any
set-offs or defenses against the enforcement of any right or remedy of
Landlord, or any duty or obligation of Tenant, hereunder (and, if so,
specifying the same in detail); (iv) that Rent is paid currently without any
offset or defense thereto, (v) the dates, if any, to which any Rent has been
paid in advance; (vi) whether or not there is then existing any claim of
Landlord's default under this Lease and if so, specifying the same in detail;
(vii) that Tenant has no knowledge of any event having occurred that authorized
the termination of this Lease by Tenant (or if Tenant has such knowledge,
specifying the same in detail); and (viii) any other matters relating to the
status of this Lease that Landlord or its mortgage may request be confirmed,
provided that such facts are accurate and ascertainable.
Landlord shall, within thirty (30) days after written request from Tenant,
no more often than once in any Lease Year and provided Tenant is not then in
default hereunder, deliver to Tenant or such persons as Tenant may designate, a
statement in writing certifying to the extent true that: (i) Tenant is in
possession of the Leased Premises; (ii) this Lease is in full force and effect
(as later modified, if such be the case); (iii) the Rent due hereunder is
current; and (iv) that to the best of Landlord's knowledge, information and
belief, Tenant is not in default hereunder.
SECTION 12.5 REMEDIES. Any failure by Tenant to execute any certificate,
statement or instrument in accordance with the foregoing provisions of this
Article XII or any financing statement in accordance with the provisions of
Section 14.2(a), within the time period provided or if no time period is
specified, then within thirty (30) days after written request, shall constitute
a "default" under this Lease.
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ARTICLE XIII
ADVERTISING AND PROMOTION
SECTION 13.1. PROMOTION FUND. Landlord shall establish an advertising and
promotion fund (the "Fund"). The object of the Fund shall be to advertise the
Retail Development in local metropolitan statistical area and to provide a
program of events, all of which shall, in Landlord's judgment, serve to enhance
and promote the Retail Development and its occupants. Such program of events may
include the promotion of coach traffic to the Retail Development and the
development of a mall video network within the Retail Development offering a
program of information, entertainment and advertisements. The Fund shall be
administered by Landlord and the costs and expenses of such administration shall
be charged to the Fund. Landlord shall expend all amounts paid to Fund by the
tenants in the Retail Development for the purposes herein set forth.
SECTION 13.2. PROMOTION FUND CONTRIBUTION. Tenant's annual contribution to
the Fund shall be the Fund Contribution (reduced proportionately for a partial
Lease Year) as defined in the Data Sheet. Upon the Grand Opening, Tenant shall
also pay Tenant's one-time initial contribution or Grand Opening Fee which is
defined in the Data Sheet. The Fund Contribution payable by Tenant for each
Lease Year shall be increased commencing with the second Lease Year of the Term
of this Lease, and each Lease Year thereafter, by a percentage equal to the
percentage increase from the "base period" of the Consumer Price Index ("Index")
to the "current period" of the Index of the Lease Year for which the adjustment
is being made; provided, however, if the first Lease Year is less than six (6)
months, the first adjustment to the fund Contribution shall be after the first
full Lease Year. Except as herein expressly provided, the term "base period"
shall initially refer to the Index published for the month of October
immediately preceding the Commencement Date. Following the initial increase in
the Fund Contribution hereunder, the term "base period" shall refer to the Index
published for the month of October immediately preceding the Lease Year for
which the Fund Contribution was last adjusted hereunder. The "current period" of
the Index shall refer to the Index published for the month of October
immediately preceding the Lease Year for which an adjustment is being made. In
the event the Index shall not be published for any of the above-described
months, then the Index published for the month closest, but prior, to the
described month shall be used in its place. The annual Fund Contribution shall
be payable by Tenant to Landlord, or as Landlord may direct, in twelve (12)
equal monthly installments, commencing on the Commencement Date, at the same
time and in the same manner as the monthly installments Minimum Rent are
payable.
Not withstanding the foregoing, in lieu of Tenant's payment of the Grand
Opening Fee, during the period from the Delivery of Possession Date through and
including the Grand Opening date ("Advertising Period"). Tenant shall place
advertisements (including, without limitation, billboards, signs, newspapers,
radio, television ads, and direct mail) at a cost equal to the amount of the
Grand Opening Fee that Tenant would have otherwise been obligated to pay
("Eligible Advertising") which shall specifically identify the Leased Premises,
including the name and location of the Shopping Center. At or prior to the time
the Eligible Advertising is placed, Tenant shall submit to Landlord copies of
the actual Eligible Advertising or other written third-party evidence reasonably
satisfactory to Landlord evidencing the Eligible Advertising together with all
receipts, canceled checks or other third-party evidence reasonably satisfactory
to Landlord establishing Tenant's payment for the Eligible Advertising. In the
event that the cost of the Eligible Advertising does not meet or exceed the
Grand Opening Fee by the end of the Advertising Period, Tenant shall pay the
balance to Landlord within thirty (30) days of receipt of a xxxx from Landlord.
SECTION 13.3. ADVERTISEMENTS [INTENTIONALLY DELETED].
SECTION 13.4. NETWORK. Landlord may cause to be developed a mall video network
within the Retail Development (the "Network"). The object of the Network shall
be to provide a program of information, entertainment and advertisements, which
shall, in Landlord's judgment, serve to enhance or promote the Retail
Development and its occupants. The Network shall have the right to sell
available time and access on the Network for advertisements or other uses. The
Network shall be under the sole and exclusive direction of Landlord and shall
be administered by Landlord. The costs and expenses paid or incurred by
Landlord for administering, operating, equipping, staffing,
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protecting, insuring, repairing, replacing and maintaining the Network shall be
charged to the Fund. Any production by Landlord of advertising messages for
Tenant and any air time on or access to the Network is subject to availability,
as determined solely by Landlord, and shall be at the then applicable rates and
fees set by Landlord. Landlord shall have the right to reject, remove or
discontinue showing any video taped advertising message of the business
conducted, or to be conducted, in the Leased Premises (herein "Tenant Video")
or advertising message on the Network the content of which is, in the opinion
of Landlord, unethical, misleading, in bad taste, or shall tend to injure the
reputation of the Retail Development or its occupants, or shall be deemed to be
detrimental to the Retail Development or is in violation of any applicable
rule, law or existing agreement with occupant(s) of the Retail Development.
Tenant acknowledges that Tenant shall be solely responsible for the content of
its Tenant Video and except with respect to the gross negligence of Landlord
and the Network, Tenant agrees to save harmless Landlord, its officers,
directors, partners, employees and agents from and against any and all claims,
actions, damages, liability, cost or expense, including attorneys' fees that
arise from or with respect to the content of such advertising message,
including without limitation any claims for infringement of the intellectual
property rights of others or actions for unfair competition. Landlord reserves
the right at any time to dissolve the Network and cease providing its
promotional services as well as Tenant Videos and in lieu thereof, to provide,
or cause to be provided, a program of advertising and promotional events which
in Landlord's sole judgment, will serve to promote the Retail Development and
its occupants.
ARTICLE XIV
DEFAULT AND REMEDIES
SECTION 14.1. ELEMENTS OF DEFAULT. If any one or more of the following
events occur, said event or events shall hereby be classified as a "default" as
that term is used throughout this Lease: (a)(i) the failure of Tenant to take
possession of the Leased Premises at the Delivery of Possession Date, or (ii)
the failure of Tenant to open its doors for business within thirty (30) days
after on the date specified in Section I.3 hereof, or (iii) if Tenant vacates
or abandons the Leased Premises and permits the same to remain unoccupied and
unattended for three (3) days after written or telephone notice, or (iv) if
Tenant fails to maintain normal inventory levels and employee staff for the
conduct of its normal business activities in the Leased Premises for three (3)
days after written or telephone notice, or (v) the failure of Tenant to operate
its business in compliance with Section 4.2 for the purposes specified in
Section 4.1 and Tenant fails to cure the same within ten (10) days after
written notice, or (vi) in the event of the sale or removal of a substantial
portion of Tenant's property located in the Leased Premises in a manner which
is outside the ordinary course of Tenant's business; (b) the failure of Tenant
to pay any Rent or other charges required to be paid by Tenant when same shall
become due and payable hereunder and such failure continues for ten (10) days
after written notice; (c) the failure of Tenant to perform or observe any term
or condition of this Lease and such failure shall continue for thirty (30) days
after written notice; provided, however, such period shall be extended for an
additional reasonable period if Tenant has diligently commenced the curing of
such default within the thirty (30) days period and is diligently pursuing the
same to completion, but in no event shall either the thirty (30) days period
or any extension thereof apply to Tenant's covenant to operate pursuant to
Article IV of this Lease, unless the same is excused pursuant to Article IX or
Article X of this Lease; (d) if Tenant shall be given three (3) notices of the
same default under subparagraphs (b) or (c) within any period of eighteen (18)
months, notwithstanding any subsequent cure of the failure to perform or
observe the terms or conditions of this Lease as identified in such notices;
(e) if any writ of execution, levy, attachment or other legal process of law
shall occur upon a substantial and material part of Tenant's assets,
merchandise, fixtures, or Tenant's estate or interest in the Leased Premises;
(f) Tenant shall be liquidated or dissolved or shall begin proceedings toward
such liquidation or dissolution, or shall in any manner permit the divestiture
of all, or any substantial part of Tenant's assets.
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SECTION 14.2. LANDLORD'S REMEDIES. In the event of any such default or
breach by Tenant, Landlord may at any time thereafter, with or without further
notice or demand and without limiting Landlord in the exercise of any right or
remedy which Landlord may have by reason of such default or breach:
(a) Perform, on behalf and at the expense of Tenant, any obligation
of Tenant under this Lease which Tenant has failed to perform and of which
Landlord shall have given at least three (3) days' notice (except in the case
of emergency, in which event no such notice shall be required), the cost of
which performance by Landlord, together with interest therein at the interest
rate (as specified in Section 20.14 hereof) from the date of such expenditure,
shall be deemed additional rent and shall be payable by Tenant to Landlord upon
demand.
(b) Without further notice, re-enter and repossess the Leased
Premises, by summary proceedings or otherwise, and remove Tenant and all other
persons and property from the Leased Premises, and store such property in a
public warehouse or elsewhere at the cost of and for the account of Tenant
without resort to legal process and without Landlord being deemed guilty of
trespass or conversion or becoming liable for any loss or damage occasioned
thereby. In connection herewith, Landlord shall have, in addition to any other
remedies, any and all self-help remedies, including but not limited to a
forcible entry into the Leased Premises or a "lock-out" accomplished by
changing the locks on the Leased Premises. No re-entry of the Leased Premises
shall be construed as an election by Landlord to accept Tenant's surrender of
the Leased Premises or to terminate this Lease unless a written notice of such
intention is given by Landlord to Tenant.
(c) Declare the entire balance of the Rent, and all other amounts to
be paid by Tenant hereunder for the remainder of the Term to be due and payable
immediately, and collect such balance in any manner not inconsistent with
applicable law. The amount of additional rent and Percentage Rent payable with
respect to each Lease Year remaining in the Term after such default (including
the Lease Year during which such default occurred) shall be conclusively
presumed to be equal to the average additional rent and Percentage Rent payable
with respect to each completed Lease Year preceding such default; provided,
however, that if such default occurs before the expiration of two (2) Lease
Years, then the amount of additional rent and Percentage Rent payable with
respect to each Lease Year remaining in the Term after such default (including
the Lease Year or partial Lease Year during which such default occurred) shall
be conclusively presumed to be equal to twelve (12) times the average monthly
additional rent and Percentage Rent payable prior to such default.
Notwithstanding anything to the contrary contained in this Lease, Landlord
hereby agrees to use reasonable efforts to mitigate damages; provided, however,
that landlord, in attempting to lease the Leased Premises shall not be obligated
to give preference to the Leased Premises over any other available space in the
Shopping Center. In consideration of the preceding sentence, Tenant hereby
acknowledges that the Leased Premises are located within a super-regional
discount specialty retail shopping center and that the quality and record of
experience of a prospective tenant and the type of prospective tenant (compared
with the then current tenant mix in the Shopping Center) are principal
considerations which Landlord shall employ in determining whether to lease the
Leased Premises.
(d) Terminate this Lease by giving written notice of such
termination to Tenant, which termination shall be effective as of the date of
such notice or any later date thereof specified by Landlord in such notice
(provided, that without limiting the generality of the foregoing provisions,
Landlord shall not be deemed to have accepted any abandonment or surrender by
Tenant of any or all of the Leased Premises or Tenant's leasehold estate under
this Lease unless Landlord has so advised Tenant expressly and in writing,
regardless of whether Landlord has re-entered or relet any or all of the Leased
Premises or exercised any or all of Landlord's other rights under this Lease or
applicable law.
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(e) In Landlord's own name or otherwise, relet any or all of the Leased
Premises with or without any additional premises, for any or all of the
remainder of the Term (or, if this Lease has then been terminated, for any or
all of the period which would, but for such termination, have constituted the
remainder of the Term) or for a period exceeding such remainder, on such terms
and subject to such conditions as are acceptable to Landlord (including, by way
of example rather than of limitation, the alteration of any or all of the
Leased Premises in any manner which, in Landlord's judgment, is necessary or
desirable in connection with such reletting, and the allowance of one or more
concessions or "free-rent" or reduced-rent periods), and collect and receive
the rents thereof. Tenant shall pay to Landlord, at the times and in the manner
specified by the provisions of this Lease (unless Landlord has elected to
accelerate Rent as provided above in subparagraph (d), in which event Tenant
shall be obligated to pay such accelerated amount as provided in such
subparagraph), (i) the installments of the Minimum Rent, additional rent and
Percentage Rent accruing during such remainder (or, if this Lease has then been
terminated, damages equalling the respective amounts of such installments
(determined as provided in subparagraph 14.2(c) which would have accrued during
such remainder, had this Lease not been terminated)), plus (ii) the cost to
Landlord of any such reletting (including, by way of example rather of
limitation, any attorneys's fees, leasing or brokerage commissions, repair or
improvement expenses and the expense of any other actions taken in connection
with such reletting) less any monies received by Landlord with respect to such
remainder from such reletting of any or all of the Leased Premises.
(f) Recover from Tenant, an amount equal to (i) all items of accrued and
unpaid Rent, including, without limitation, the then unamortized amount of the
Construction Allowance; (ii) all reasonable expenses (including, by way of
example rather than of limitation, all repossession costs, management expenses,
operating expenses, legal expenses and attorney's fees) incurred by Landlord in
curing or seeking to cure any default or in exercising or seeking to exercise
any of Landlord's rights and remedies under the provisions of this Lease or at
law or in equity on account of any default, plus (iii) interest on all such
expenses, at the rate provided in Section 20.14, all of which expenses and
interest shall be payable by Tenant immediately on demand therefor by Landlord.
(g) Without terminating this Lease, maintain Tenant's right to
possession, in which case this Lease shall continue in effect whether or not
Tenant shall have vacated the Leased Premises. In such event, Landlord shall be
entitled to enforce all of Landlord's rights and remedies under this Lease,
including the right to recover Rent as it becomes due hereunder.
(h) Any damage or loss of Rent sustained by Landlord may be recovered by
Landlord, at Landlord's option, at the time of the reletting or termination, in
a single action or in separate actions, from time to time, as said loss of Rent
or damages shall accrue, or in a single proceeding deferred by Landlord or with
jurisdiction reserved by the court, until the expiration of the Term of this
Lease (in which event Tenant hereby agrees that, at Landlord's option, the
cause of action shall not be deemed to have accrued until the date of
expiration of said Term).
(i) Nothing contained herein shall prevent the enforcement of any claim
Landlord may have against Tenant for anticipatory breach of this Lease. In the
event of any anticipatory breach by Tenant of any of the covenants or
provisions hereof or in the event of Tenant's default, Landlord shall have the
right of injunction and the right to invoke any remedy allowed at law or in
equity as if re-entry, summary proceedings and other remedies were not provided
for herein. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy under this Lease or, at law or in equity. Tenant
hereby expressly waives for itself and all persons claiming by or through
Tenant, any and all rights to redeem, reinstate or restore, or obtain relief
from forfeiture of this Lease granted by or under any present or future law in
the event of Tenant being evicted or dispossessed for any cause, or in the
event of Landlord obtaining possession of the Leased Premises by reason of the
violation by Tenant of any of the covenants and conditions of this Lease.
(j) In case suit shall be brought for recovery of the Leased Premises,
for the recovery of Rent or any other amount due under the provisions of this
Lease, or because of the breach of any other covenant herein contained on the
part of Tenant to be kept and performed, and a breach shall be established,
Tenant shall pay to Landlord all costs and expenses incurred therefor,
including Landlord's attorney's reasonable fees and expenses.
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(k) Nothing herein contained shall limit or prejudice Landlord's right to
prove and obtain as damages, by reason of any default by Tenant, an amount
equal to the maximum allowed by statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved. No
expiration or termination of this Lease, abandonment, re-entry by Landlord or
vacancy, shall relieve Tenant of any of its liabilities and obligations under
this Lease (whether or not any or all of the Leased Premises are relet), and
Tenant shall remain liable to Landlord for all damages resulting from any
default by Tenant, including any damage resulting from the breach by Tenant of
any of its obligations to pay Minimum Rent, Percentage Rent, additional rent
and any other sums which Tenant is obligated to pay hereunder.
(l) The rights and remedies of Landlord under this Lease shall be deemed
to be cumulative, and no one of such rights or remedies shall be exclusive at
law or in equity of the other rights and remedies of Landlord on account of a
default by Tenant, and the exercise of any one such right or remedy by Landlord
shall not impair Landlord's standing, right or power to exercise any other
right or remedy.
SECTION 14.3. BANKRUPTCY. (a) Neither Tenant's interest in this Lease, nor
any estate hereby created in Tenant nor any interest herein or therein, shall
pass to any trustee or receiver or assignee for the benefit of creditors or
otherwise by operation of law, except as may specifically be provided pursuant
to the Bankruptcy Code (11 USC Section 101 et seq.), as the same may be amended
from time to time.
(b) It is understood and agreed that this Lease is a lease of real
property in a shopping center as such lease is described in Section 365 of the
Bankruptcy Code, as the same may be amended from time to time. Upon the filing
of a petition by or against Tenant under the Bankruptcy Code, Tenant, as debtor
and as debtor-in-possession, and any trustee who may be appointed with respect
to the assets of or estate in bankruptcy of Tenant, agree to pay monthly in
advance on the first day of each month, as reasonable compensation for the use
and occupancy of the Leased Premises, an amount equal to all Minimum Rent,
additional rent and other charges otherwise due pursuant to this Lease, and to
pay Percentage Rent monthly, at the percentage factor set forth in this Lease
for the Lease Year in which such month falls, on all of the Gross Sales during
such month in excess of one-twelfth (1/12th) of the Sales Break Point for such
Lease Year, payment of all such Percentage Rent to be made by the tenth (10th)
day of the succeeding month. Included within and in addition to any other
conditions or obligations imposed upon Tenant or its successor in the event of
the assumption and/or assignment of this Lease are the following: (i) the cure
of any monetary defaults and reimbursement of pecuniary loss within not more
than thirty (30) days of assumption and/or assignment; (ii) the deposit of an
additional sum equal to not less than three (3) months' Minimum Rent and
additional rent to be held pursuant to the terms of Section 2.4 of this Lease,
which sum shall be determined by Landlord, in its sole discretion, to be a
necessary deposit to secure the future performance under this Lease by Tenant
or its assignee; (iii) the use of the Leased Premises as set forth in Section
4.1 of this Lease and the quality, quantity and/or lines of merchandise, goods
or services required to be offered for sale are unchanged; and (iv) the prior
written consent of any mortgagee to which this Lease has been assigned as
collateral security.
SECTION 14.4. ADDITIONAL REMEDIES AND WAIVERS. Notwithstanding any other
provision contained in this Lease to the contrary, all rights and remedies of
Landlord set forth herein (including but not limited to Landlord's rights
respecting lockout, re-entry, self-help, repossession, security interests and
lien rights and foreclosure) shall be in addition to (and not in substitution
of) any and all other rights and remedies now or hereafter provided by law,
including but not limited to rights and remedies provided by the statutes,
rules, regulations, laws and judicial decisions of the State, and all such
rights and remedies shall be cumulative; and none of such rights and remedies
so provided by law shall be conditioned or limited by any conditions or
limitations on the remedies granted to Landlord under the terms of this Lease,
nor upon any notice and/or passage of time that may be required hereunder in
order for an event or condition to constitute a default or an event of default
as that term is defined in this Lease.
SECTION 14.5. LANDLORD'S CURE OF DEFAULT. If Tenant shall be in default
hereunder, Landlord shall have the option, but not the obligation, upon three
(3) days written notice to Tenant (except in the event of an emergency, in which
event no notice shall be required), to cure the act or failure constituting said
default for the account of and at the expense of Tenant. Landlord's cure or
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attempt to cure any act or failure constituting the default by Tenant shall not
result in a waiver or release of Tenant. Tenant agrees to pay the costs
incurred by Landlord pursuant to this Section 14.5 plus interest, in accordance
with Section 20.14 hereof, on all sums expended by Landlord pursuant to this
Section 14.5 from the date of such expenditure plus a charge of fifteen percent
(15%) of such costs, to Landlord upon demand, as additional rent.
SECTION 14.6 SECURITY INTEREST. Tenant may grant a security interest,
encumber or pledge its equipment, personal property, inventory and moveable
trade fixtures located on or about the Leased Premises, with respect to
financing which benefits this store location and Landlord shall agree to
subordinate its lien, if any, on such equipment to such financing. In no event,
however, shall Tenant be permitted to mortgage, hypothecate, encumber or pledge
the leasehold interest in the Leased Premises.
SECTION 14.7 TENANT'S REMEDIES. In the event Landlord shall fail to
perform any obligation specified in this Lease, which default materially and
adversely affects Tenant's operations, then Tenant may, after the continuance
of any such default for thirty (30) days after written notice thereof by Tenant
to Landlord (except in the event of an emergency when only reasonable notice
shall be required to be given to Landlord under the circumstances), cure such
default all on behalf of and at the expense of Landlord and do all necessary
work and make all necessary payments in connection therewith and Landlord
shall, on demand, pay Tenant forthwith, the amount so paid by Tenant together
with interest thereon at the rate specified in Section 20.14 hereof from the
date of payment until re-payment.
ARTICLE XV
RIGHT OF ACCESS
Landlord may, at any reasonable time or times, upon prior notice to Tenant
(except in the event of an emergency, or if Tenant is in default under this
Lease, in which event no notice shall be required), before and after the
Commencement Date, enter upon the Leased Premises, any portion thereof and any
appurtenance thereto (with men and materials, if required) for the purpose of:
(a) inspecting the same; (b) making such repairs, replacements or alterations
which Landlord may be required to perform as herein provided or which it may
deem desirable for the Leased Premises; and (c) showing the Leased Premises to
prospective purchasers, lenders or lessees. Landlord hereby expressly reserves
the right, exercisable at any time and from time to time, to erect, use,
maintain and repair pipes, conduits, plumbing, vents, ducts and wires in, to,
under and through the Leased Premises as and to the extent that Landlord may
now or hereafter deem to be necessary or appropriate for the proper operation
and maintenance of the Shopping Center. Any redecorating or repair necessitated
by reason of location of same within the Leased Premises shall be the
responsibility of Landlord. Landlord agrees to hold Tenant harmless from any
damage or injury to person or property to the extent resulting from Landlord
exercising its rights under this Article XV. Notwithstanding anything contained
in this Lease to the contrary, if such work prevents Tenant from operating its
business within the Leased Premises for three (3) or more consecutive
days, Landlord shall after written notice from Tenant to Landlord, xxxxx
Minimum Rent after such three (3) days of disruption on a day-to-day basis
until Tenant is able to operate its business in the Leased Premises.
In the exercise of its rights under this Article XV, Landlord shall used
reasonable efforts to avoid material interference with the operation of
Tenant's business within the Leased Premises. Landlord agrees that except in
the event of an emergency, and provided Tenant shall make an employee of Tenant
available to accompany Landlord following Landlord's notice to Tenant of the
necessity therefor, Landlord shall not enter the Leased Premises during the
Term of this Lease without an employee of Tenant accompanying Landlord's
representative.
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ARTICLE XVI
DELAYS
If Landlord or Tenant is delayed or prevented from performing any of their
respective obligations during the Term of this Lease because of strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
governmental restrictions, a delay created by the other party, or reasons of a
like nature not the fault of the party delayed in performing such obligation
(collectively "Delays"), then the period of such delays shall be deemed added
to the time herein provided for the performance of any such obligation and the
defaulting party shall not be liable for losses or damages caused by such
delays; provided, however, that, subsequent to the Commencement Date, this
Article XVI shall not apply to the payment of any sums of money required to be
paid by Tenant hereunder or any obligation of Landlord or Tenant that can be
satisfied by the payment of money, and shall not excuse Tenant from its
obligation to continuously operate its business within the Leased Premises in
accordance with the provisions of Sections 4.1 and 4.2 hereof.
ARTICLE XVII
END OF TERM
SECTION 17.1. RETURN OF LEASED PREMISES. Upon the Expiration Date or
earlier termination of this Lease, Tenant shall quit and surrender to landlord
the Leased Premises, broom-clean, in good order and condition, ordinary wear and
tear excepted, and shall surrender to Landlord all keys to or for the Leased
Premises and inform Landlord of all combinations of locks, safes and vaults, if
any, in the Leased Premises. Subject to the provisions of Section 3.5 hereof,
Tenant, at its expense, shall promptly remove all personal property of Tenant,
and repair all damage to the Leased Premises caused by such removal. Any
personal property of Tenant not removed within ten (10) days following the
Expiration Date or earlier termination of this Lease shall be deemed to have
been abandoned by Tenant and to have become the property of Landlord, and may
be retained or disposed of by Landlord, as Landlord shall desire. Tenant's
obligation to observe or perform the covenants set forth in this Section 17.1
shall survive the Expiration Date or earlier termination of this Lease.
SECTION 17.2. HOLDING OVER. If Tenant shall hold possession of the Leased
Premises after the Expiration Date or earlier termination of this Lease at
Landlord's option (a) Tenant shall be deemed to be occupying the Leased Premises
as a tenant from month-to-month, at [***] and other charges in effect during the
last Lease year immediately preceding such holdover and other wise subject to
all of the terms and conditions of this Lease, or (b) Landlord may exercise any
other remedies it has under this Lease or at law or in equity including an
action for wrongfully holding over.
Notwithstanding the foregoing, if Tenant is negotiating in good faith with
Landlord to renew or extend the Term of this Lease for the Leased Premises (or a
relocation within the Shopping Center), then Tenant may occupy the Leased
Premises on a month-to-month tenancy at [***] of the annual Minimum Rent for the
last year of the Term of the Lease.
*** Confidential treatment requested.
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ARTICLE XVIII
COVENANT OF QUIET ENJOYMENT
Landlord covenants that if and so long as Tenant pays the Rent and all
other charges provided for herein, and performs all of its obligations provided
for herein, Tenant shall at all times during the Term hereof peaceably have,
hold and enjoy the Leased Premises, without any interruption or disturbance
from Landlord, or anyone lawfully or equitably claiming through or under
Landlord, subject to the terms hereof and any mortgage or deed of trust to
which this Lease shall be subordinate.
ARTICLE XIX
UTILITIES
SECTION 19.1. UTILITIES. Tenant agrees to connect to and use the utilities
(including electricity, water, gas, cooling and/or heating system, telephone
and any other utility) supplied to the Leased Premises in accordance with the
criteria set forth in the Exhibits attached to this Lease, Landlord's schedule
of mechanical and electrical design criteria, Landlord's rules and regulations,
and the rules and regulations of the utility companies supplying the service.
Tenant shall be solely responsible for and promptly pay all costs and charges,
including installation thereof where applicable, for all water, gas, cooling,
heat, electricity, sewer and other utilities provided or used in or at the
Leased Premises, commencing with the Delivery of Possession Date and continuing
throughout the Term of this Lease. If Landlord shall elect to supply any of the
utilities used upon or furnished to the Leased Premises, Tenant agrees to pay
as additional rent a per square foot charge based on Tenant's estimated usage,
as reflected on a monthly invoice to be provided by Landlord; provided,
however, in no event shall Tenant's total charges for utilities provided by
Landlord exceed what Tenant would be charged by the local utility company if it
were billed directly by such utility as a direct retail customer. Landlord
shall not be liable to Tenant for any loss, damage or expense which Tenant may
sustain if the utilities, or the quality or character of utilities used upon or
furnished to the Leased Premises are no longer available or suitable for
Tenant's requirements, or if the supply of any such utility ceases or is
interrupted as a result of any cause and no such change, interruption or
cessation of service shall constitute an eviction of Tenant. Any furnishing by
Landlord of light, cooling and/or heat or power shall be conditioned upon the
availability of adequate energy sources. Landlord shall have the right to
reduce heat, lighting and air conditioning within the Shopping Center,
including, without limitation, the Leased Premises and the common areas, as
required by any mandatory or voluntary fuel or energy saving allocation, or any
similar statute, regulation, order or program. Notwithstanding the foregoing,
in the event that any foregoing utility service is interrupted for three (3)
consecutive working days solely as a result of any of Landlord's or any of
Landlord's agents' wilful acts of misconduct or negligence, and Tenant is
unable to operate its business within the Leased Premises as a result thereof,
then Landlord shall, after written notice from Tenant to Landlord concerning
such interruption, xxxxx Minimum Rent on a day-to-day basis if and until such
time as said utility services are restored.
SECTION 19.2. ELECTRICITY, TELEPHONE AND GAS. All telephone, electric and
gas (with gas being available only to food service tenants) utility required by
Tenant for the Leased Premises shall (if available) be obtained by Tenant in
accordance with Exhibit D and shall be installed by the appropriate company or
utility. All charges for such utility service (including the installation
thereof) shall be paid by Tenant directly to the company or utility providing
any such service, as and when they become due and payable.
SECTION 19.3. TRASH AND GARBAGE REMOVAL. Tenant shall be solely
responsible for trash and garbage removal from the Leased Premises including
the placing of all trash and garbage in containers provided by Landlord or
Landlord's contractor for such purpose. In the event Landlord elects to furnish
such service to the tenants in the Shopping Center, Tenant agrees to use only
the service provided by Landlord and to pay for such service (including both
the cost of leasing containers and the cost of removal) monthly, as additional
rent, in accordance with the uniform
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schedule of charges to be established by Landlord. In no event shall Tenant be
obligated to pay Landlord more for such trash and garbage removal service than
the prevailing competitive rates of reputable independent trash removal
contractors for service similar to that provided by Landlord.
SECTION 19.4. WATER AND SEWER. The cost of water and sanitary sewer for
usage in the Shopping Center shall be included in Common Area Maintenance
Expenses, except for food service tenants which may be billed directly by
Landlord or the supplier of water and sanitary service and any other tenants
which are billed directly by Landlord or such supplier. Landlord reserves the
right to install a water meter in the Leased Premises at any time or from time
to time to measure Tenant's consumption of water therein and xxxx Tenant
directly for the cost of such consumption. Tenant shall pay, as additional
rent, the amount of each xxxx within fifteen (15) days after such xxxx is
rendered.
SECTION 19.5. GREASE INTERCEPTORS. Landlord, in its commercially
reasonable judgment, will arrange for regular periodic service and cleaning of
all grease interceptors at Tenant's expense. Cost of service and cleaning of
grease interceptors will be allocated among grease interceptors serving food
court(s) and grease interceptors serving individual tenants in proportion to
grease trap size. Tenants served by individual grease traps will pay their pro
rata share of the cost for their grease trap. The share of grease trap service
and cleaning cost apportioned to food court grease traps will be paid by food
court tenants as part of the food court common facilities expenses.
ARTICLE XX
MISCELLANEOUS
SECTION 20.1. ENTIRE AGREEMENT. This Lease together with the Exhibits,
attached hereto and incorporated herein contains the entire agreement between
the parties hereto and there are no promises, agreements, conditions,
undertakings, or warranties, or representations, oral or written, express or
implied, between them other than as herein set forth. No change or modification
of this Lease or of any of the provisions hereof shall be valid or effective
unless the same is in writing and signed by the parties hereto. No alleged or
contended waiver of any of the provisions of this Lease shall be valid or
effective unless in writing signed by the party against whom it is sought to be
enforced.
SECTION 20.2. NOTICES. No notice or other communication given under this
Lease shall be effective unless the same is in writing and is delivered in
person or mailed by registered or certified mail, return receipt requested,
first class, postage prepaid, or delivered by Federal Express or a comparably
reliable national air courier service (i.e. one which delivers service in at
least 48 states) provided that any such courier service provides written
evidence of delivery. Any such notice or communication shall be addressed:
(a) If to Landlord, at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: General Counsel, or to such other address as
Landlord shall designate by giving notice thereof to Tenant, with a copy for
informational purposes only to the Mall Manager of the Retail Development.
(b) If to Tenant, at the address set forth for Tenant on page 1 of this
Lease or at the Leased Premises, or such other address as Tenant shall
designate by giving notice thereof to Landlord, with a courtesy copy but not
required for effective notice to: Xxxx Xxxx Xxxx & Friedenrich, 000 Xxxxxxxx
Xxxxxx, Xxxx Xxxx, XX 00000; Attn: Xxxxxx X. Xxxxxxx.
The date of service of any notice or other communication given by mail shall be
three (3) days after the date on which such notice is deposited in the U.S.
mails. The date of service of any notice given by courier service (as described
above) shall be one (1) day after deposit with such courier service.
SECTION 20.3. GOVERNING LAW. It is the intent of the parties hereto
that all questions with respect to the construction of this Lease and the
rights and the liabilities of the parties hereto shall be determined in
accordance with laws of the jurisdiction in which the Leased Premises is located
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and that all disputes arising hereunder shall be heard and decided in the local
jurisdiction where the Leased Premises is located.
SECTION 20.4. SUCCESSORS. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors, and assigns of
the said parties; and if there shall be more than one Tenant, or more than one
person or entity acting collectively as Tenant, they shall all be bound jointly
and severally by the terms, covenants and agreements herein. Any restriction
on or requirement imposed upon Tenant hereunder shall be deemed to extend to
Tenant's Guarantor, Tenant's sublessees, Tenant's assignees and Tenant's
invitees, and it shall be Tenant's obligation to cause the foregoing persons to
comply with such restrictions or requirements. No rights, however, shall inure
to the benefit of any assignee or other transferee of Tenant, and no rights or
benefits shall be conferred upon any such assignee or transferee by reason of
this Section 20.4, unless such rights or benefits shall be expressly otherwise
set forth in this Lease.
SECTION 20.5. LIABILITY OF LANDLORD. Neither Landlord, Landlord's
beneficiaries, any persons or entities comprising Landlord, nor any successor
in interest to Landlord (or to such persons or entities) shall have any
personal liability for any failure by Landlord to perform any term, covenant or
condition of this Lease. If Landlord shall fail to perform any covenant, term
or condition of this Lease upon Landlord's part to be performed, and if as a
consequence of such default Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against the right,
title and interest of Landlord in the Shopping Center and out of rents or other
income from such property receivable by Landlord, or out of the consideration
received by Landlord from the sale or other disposition of all or any part of
Landlord's right, title and interest in the Shopping Center, subject,
nevertheless, to the rights of Landlord's mortgagee, and neither Landlord nor
any of the co-partners comprising the partnership which is Landlord herein
shall be liable for any deficiency. The foregoing limitation of liability shall
be noted in any judgment secured against Landlord and in the judgment index.
SECTION 20.6. BROKERS. Tenant warrants and represents that there was no
broker or agent instrumental in consummating this Lease. Tenant agrees to
indemnify and hold Landlord harmless against any claims for brokerage or other
commissions arising by reason of a breach by Tenant of this representation and
warranty.
SECTION 20.7. TRANSFER BY LANDLORD. Landlord hereunder shall have the
right to freely assign this Lease without notice to or the consent of Tenant.
SECTION 20.8. NO PARTNERSHIP. Notwithstanding the fact that a portion of
the Rent reserved hereunder may be a percentage of Tenant's Gross Sales, and
notwithstanding anything else to the contrary, Landlord shall not be deemed to
be a partner of Tenant or a joint venturer with Tenant.
SECTION 20.9. WAIVER OF COUNTERCLAIMS. Tenant shall not impose any
counterclaim or counterclaims (other than compulsory counterclaims) in a
summary proceeding or other action based on termination or holdover, it being
the intent of the parties hereto that Tenant be strictly limited in such
instance to bringing a separate action in the court of appropriate
jurisdiction. The foregoing waiver is a material inducement to Landlord making,
executing and delivering this Lease and Tenant's waiver of its right to
counterclaim in any summary proceeding or other action based on termination or
holdover is done so knowingly, intelligently and voluntarily.
SECTION 20.10. WAIVER OF JURY TRIAL. [INTENTIONALLY DELETED].
SECTION 20.11. SEVERABILITY. If any provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
SECTION 20.12. NO WAIVER. No failure by Landlord to insist upon the
strict performance of any term, covenant, agreement, provision, condition or
limitation of this Lease to be kept, observed
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or performed by Tenant, and no failure by Landlord to exercise any right or
remedy available upon a breach of any such term, covenant, agreement,
provision, condition or limitation of this Lease, shall constitute a waiver of
any such breach or of any such term, covenant, agreement, provision, condition
or limitation.
SECTION 20.13. CONSUMER PRICE INDEX. As used herein, "Consumer Price
Index" or "Index" shall mean the Consumer Price Index for All Urban Consumers
(1982-84-100), U.S. City Average, All Items, published by the United States
Department of Labor, Bureau of Labor Statistics (or such comparable index as
may be utilized in substitution for or as the successor to the stated Index).
If such Index is not published by the Bureau of Labor Statistics or by another
similar governmental agency at any time during the Term of this Lease, then the
most closely comparable statistics on the purchasing power of the consumer
dollar as published by a responsible financial authority and selected by
Landlord shall be utilized in lieu of such Index.
SECTION 20.14. INTEREST. Any amount due from Tenant to Landlord herein
which is not paid when due shall bear interest at a rate per annum equal to the
Federal Reserve Bank discount rate as published in [***] day of the month
preceding the date upon which the obligation is incurred (or the next business
day thereafter if the 25th is not a weekday) plus [***] unless otherwise
specifically provided herein, but the payment of such interest shall not excuse
or cure any default by Tenant under this Lease. In no event shall any interest
calculated hereunder be at a rate which is higher than the maximum rate which is
allowed under the usury laws of the State, which maximum rate of interest shall
be substituted for the rate in excess thereof, if any, computed pursuant to this
Section 20.14.
SECTION 20.15. EXCAVATION. If an excavation shall be made upon land
adjacent to the Leased Premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the Leased Premises for the purpose of doing such work
as said person shall deem necessary to preserve the wall or the building of
which the Leased Premises form a part from injury or damage and to support the
same by proper foundation, without any claim for damages or indemnity from
Landlord, or diminution or abatement of Rent.
Notwithstanding anything contained in this Lease to the contrary, if such
excavation work prevents Tenant from operating its business within the Leased
Premises for three (3) or more consecutive days, Landlord shall after three (3)
days' written notice from Tenant to Landlord, xxxxx Minimum Rent after such
three (3) days of disruption on a day-to-day basis until Tenant is able to
operate its business in the Leased Premises.
SECTION 20.16. RULES AND REGULATIONS. Tenant agrees to comply with and
observe all reasonable rules and regulations established by Landlord for the
Shopping Center from time to time. Tenant's failure to keep and observe such
rules and regulations shall constitute a default pursuant to the terms of this
Lease in the manner as if the same were contained herein as covenants, which
shall carry with it the same consequences under Article XIV hereof as Tenant's
failure to pay rent.
SECTION 20.17. FINANCIAL STATEMENTS. Upon Landlord's written request from
time to time, but not more than once per Lease Year, Tenant shall, within
thirty (30) days after Landlord's request therefor, furnish Landlord financial
statements outlining Tenant's then current financial condition and shall
furnish financial statements outlining the current financial condition of any
Guarantor of this Lease. Landlord shall maintain all financial information
provided in a confidential manner; provided, however, that Landlord may
disclose such financial statements to Landlord's mortgagees or prospective
mortgagees or purchasers.
SECTION 20.18. GENERAL RULES OF CONSTRUCTION. (a) This Lease may be
executed in several counterparts and the counterparts shall constitute one and
the same instrument. (b) Landlord may act under this Lease by its attorney or
agent. (c) Wherever a requirement is imposed on Tenant hereunder, Tenant shall
be required to perform such requirement at its sole cost and expense unless it
is specifically otherwise provided herein. (d)(i) Wherever appropriate herein,
the singular includes the plural and the plural includes the singular; (ii)
whenever the work "including" is used herein, it shall be deemed to mean
"including, but not limited to"; and (iii) the words "re-enter" and "re-entry"
as used herein shall not be restricted to their technical legal meaning. (e)
Anything in this Lease to the contrary notwithstanding: (i) any provision
hereof which permits or requires a party to
*** Confidential treatment requested.
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take any particular action shall be deemed to permit or require, as the case may
be, such party to cause such action to be taken; and (ii) any provision hereof
which requires any party not to take any particular action shall be deemed to
require such party to prevent such action to be taken by any person or by
operation of law. (f) Whenever costs or expenses are required to be assessed to
or paid by Tenant, such costs and expenses shall be reasonable.
SECTION 20.19. RECORDING. Neither this Lease nor any memorandum hereof may
be recorded without the express written consent of Landlord.
SECTION 20.20. EFFECTIVE DATE. For all purposes hereof, the "Effective
Date" of this Lease shall be the date upon which this Lease shall have been
executed by both parties and physically delivered by Landlord to Tenant or its
attorney. Prior to the Effective Date, neither this Lease nor anything hereunder
contained shall be legally binding on either Landlord or Tenant, and the
submission of this Lease by Landlord to Tenant prior to such Effective Date for
examination or consideration by Tenant or discussion between Landlord and Tenant
shall not constitute a reservation of or option for the Leased Premises or
create any legal obligation or liability whatsoever on Landlord.
SECTION 20.21. HEADINGS. The captions, section numbers, article numbers and
index appearing in this Lease are inserted only as a matter of convenience and
in no way define, limit, construe, or describe the scope of intent of such
sections or articles of this Lease nor in any way affect this Lease.
SECTION 20.22. MANAGING AGENT. Landlord has advised Tenant that it has
appointed MillsServices Corp., a Delaware corporation as managing agent of the
Retail Development (said managing agent and any successor or substitute managing
agent is hereinafter referred to as "Managing Agent"). Tenant shall, until
otherwise notified by Landlord, make all payments of Rent required to be made
pursuant to this Lease to the Managing Agent payable to Landlord and direct all
notices, inquiries or other communications to the Managing Agent, 0000 Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000.
[Signatures Appear on the Following Page]
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IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of the
day and year first above written.
WITNESS: LANDLORD:
XXXX XXXXX LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Xxxx Xxxxx, L.L.C., a Delaware limited
liability company
Its: General Partner
By: The Xxxxx Limited Partnership, a
Delaware limited partnership
Its: Manager
By: The Xxxxx Corporation, a Delaware
corporation
Its: General Partner
3/17/99
By: /s/ [ILLEGIBLE] By: /s/ XXXXXX XXXXXX
---------------------------- -------------------------------
Xxxxxx Xxxxxx
By: /s/ [ILLEGIBLE] Executive Vice President
----------------------------
WITNESS/ATTEST: TENANT:
SILICON ENTERTAINMENT, INC., a
California corporation
By: By: /s/ [ILLEGIBLE]
---------------------------- --------------------------------
By: Name: /s/ [ILLEGIBLE]
---------------------------- --------------------------------
Its: Vice President
--------------------------------
By: By: /s/ XXXXX X. XXXXX
---------------------------- --------------------------------
By: Name: Xxxxx X. Xxxxx
---------------------------- --------------------------------
Its: Chairman/CEO
--------------------------------
Tenant's Corporate Seal:
54
ACKNOWLEDGMENT OF LANDLORD
COMMONWEALTH OF VIRGINIA )
)ss.
COUNTY OF ARLINGTON )
On this 17th day of March, 1999, before me personally appeared Xxxxxx
Xxxxxx, to me known to be the person who executed the foregoing Lease and
acknowledged before me that she was duly authorized and did execute some on
behalf of XXXX XXXXX LIMITED PARTNERSHIP, a Delaware limited partnership.
Xxxxx Xxxxxx
-----------------------------------
Notary Public
My Commission expires: 10/31/02
-------------
[Notarial Seal]
ACKNOWLEDGMENT OF CORPORATE TENANT
STATE OF CALIFORNIA )
)ss.
CITY/COUNTY OF SANTA XXXXX )
On March 16, 1999, before me Xxxxxx Xxxxxxx, a Notary Public in and for
said state aforesaid, personally appeared Xxxxx Xxxxx and Xxxxx Xxxxx, as Vice
President and Chairman & CEO of SILICON ENTERTAINMENT, INC., a California
corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
Xxxxxx X. Xxxxxxx
-----------------------------------
Notary Public, Santa Xxxxx County,
My Commission expires: 9/19/2001
-------------
[Notarial Seal]
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ADDENDUM ATTACHED TO AND MADE A PART OF LEASE DATED MARCH 17, 1999, BY AND
BETWEEN XXXX XXXXX LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP, AS
"LANDLORD," AND SILICON ENTERTAINMENT, INC., A CALIFORNIA CORPORATION, AS
"TENANT."
The Lease is hereby modified and supplemented as set forth herein. Any
conflict between a term, condition or provision contained in this Addendum with
any term, condition or provision contained in the printed Lease shall be
resolved in favor of this Addendum.
Add as a New Section 7.3:
"SECTION 7.3. SALES TAX REBATE. Landlord has determined that financial
assistance from the City of Katy and/or the State of Texas in the form of a
sales tax rebate will better enable Landlord to develop the Shopping Center in
a manner beneficial to both Landlord and Tenant. Therefore, in order to
provide Landlord with the sales tax information from the State of Texas
Comptroller of Public Accounts ("Comptroller") pertaining to Tenant's sales at
the Leased Premises, Tenant agrees to provide Landlord with certified copies of
all sales tax returns filed with the Comptroller for Tenant's retail operations
at the Leased Premises during the Term of this Lease. In addition thereto,
Tenant shall provide Landlord with a power of attorney letter addressed to, and
in a form satisfactory to, the Comptroller authorizing the Comptroller to
release to Landlord all sales tax information for Tenant's retail operations at
the Leased Premises during the Term of this Lease. Such letter shall be in a
form attached hereto and made a part hereof as Exhibit G, or such other or
additional forms as required from time to time by the Comptroller in order to
release such information to Landlord. Landlord agrees to maintain the
confidentiality of any proprietary information received by Landlord pursuant to
this Section 7.3."
Section 12.1: At the end of Section 12.1, insert:
"In accordance with the provision of this Section 12.1, Tenant agrees to
execute the Agreement of Subordination, Non-Disturbance and Attornment and
Pre-Construction Tenant Estoppel Certificate attached hereto as Exhibit H and
Exhibit H-1 concurrently with its execution of this Lease."
56
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Addendum as
of the day and year first above written.
WITNESS: LANDLORD:
XXXX XXXXX LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Xxxx Xxxxx, L.L.C., a Delaware
limited liability company
Its: General Partner
By: The Xxxxx Limited Partnership, a
Delaware limited partnership
Its: Manager
By: The Xxxxx Corporation, a Delaware
corporation
Its: General Partner
9/17/99
By: /s/ [ILLEGIBLE] /s/ XXXXXX XXXXXX
------------------------- --------------------------------------
By: Xxxxxx Xxxxxx
By: /s/ [ILLEGIBLE] Its: Executive Vice President
-------------------------
WITNESS/ATTEST: TENANT:
SILICON ENTERTAINMENT, INC., a
California corporation
By: By: /s/ XXXXXXXXXXX X. XXXXX
------------------------- ----------------------------------
By: Name: Xxxxxxxxxxx X. Xxxxx
------------------------- --------------------------------
Its: Vice President
--------------------------------
By: By: /s/ XXXXX X. XXXXX
------------------------- ----------------------------------
By: Name: Xxxxx X. Xxxxx
------------------------- --------------------------------
Its: Chairman/CEO
---------------------------------
-2-
57
ACKNOWLEDGEMENT OF LANDLORD
COMMONWEALTH OF VIRGINIA )
) ss.
COUNTY OF ARLINGTON )
On this 17th day of March, 1999, before me personally appeared Xxxxxx
Xxxxxx, to me known to be the person who executed the foregoing Addendum and
acknowledged before me that she was duly authorized and did execute same on
behalf of XXXX XXXXX LIMITED PARTNERSHIP, a Delaware limited partnership.
/s/ XXXXX XXXXXX
---------------------------------------
Notary Public, Commonwealth of Virginia
My Commission expires: October 31, 2002
ACKNOWLEDGEMENT OF CORPORATE TENANT
STATE OF CALIFORNIA )
) ss.
CITY/COUNTY OF SANTA XXXXX )
On March 16, 1999, before me Xxxxxx Xxxxxxx, a Notary Public in and for
the state aforesaid, personally appeared Xxxxx Xxxxx and Xxxxx Xxxxx, as Vice
President and Chairman and CEO of SILICON ENTERTAINMENT, INC., a California
corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the
instrument.
/s/ XXXXXX X. XXXXXXX
-----------------------------------------
Notary Public, Santa Xxxxx County,
My Commission expires: September 19, 2001
[Notarial Seal]
XXXXXX X. XXXXXXX
Commission #1155999
Notary Public - California
Santa Xxxxx County
My Comm. Expires Sep 19, 2001
58
EXHIBIT A
LEASED PREMISES
[DRAWING]
59
EXHIBIT A-1
DISPLAY AREA
[DRAWING]
60
EXHIBIT A-2
RELOCATION ZONE
[DRAWING]
61
EXHIBIT B
CALCULATION OF GROSS LEASABLE AREA
[DRAWING]
62
SPECIALTY TENANT LEASE EXHIBIT
EXHIBIT C
LANDLORD'S WORK -- ROUGH SHELL
Preface
Work to be performed by Landlord in constructing the Leased Premises shall be
limited to those items expressly set forth below as Landlord's Work in this
Exhibit C ("Landlord's Work") and, except as otherwise provided in Exhibit C or
Exhibit D, such work shall be performed at Landlord's sole cost and expense.
All Landlord's Work shall be performed by Landlord in a first class and
workmanlike manner using only new and first class materials in accordance with
all applicable laws, rules, regulations, codes and ordinances. All other items
of work, including the purchase and installation of all materials and equipment
necessary for Tenant's use of the Leased Premises shall be provided by Tenant
at Tenant's sole expense and shall include but shall not be limited to, those
items set forth in Exhibit D, Tenant's Work.
The building in which the Leased premises are a part shall be designed by the
architect and engineer retained by the Landlord to design and oversee
construction of the Retail Development (herein sometimes referred to as "The
Project"). Construction shall meet the requirements for a fully sprinklered
building in accordance with the fire protection and building code program of
the local jurisdictional authority as well as the Development Agreement and
Master Declaration, if applicable.
Landlord shall provide Tenant with a Tenant Handbook (Tenant Design Criteria)
hereinafter referred to as "Tenant Handbook".
Except as otherwise provided below, Landlord shall initially construct the
following:
A. BUILDING SHELL WORK WITHIN AND AROUND THE LEASED PREMISES
1. Shell. Landlord shall construct the building shell (building
structure, insulated roof and exterior walls) in which the Leased
Premises are to be located. It is expressly agreed and understood that
the Leased Premises shall constitute a portion of a covered mall
building.
2. Exterior Appurtenances. Public entrance features, canopies and
screen walls at the exterior of the building structure shall be
provided by Landlord in locations and of a design and in materials
deemed appropriate by Landlord.
3. Outside Walls. If Leased Premises abuts an exterior wall, such wall
shall be unfinished on the interior.
4. Demising Partitions. Landlord shall install metal wall studs, 16" on
center, between all leased premises. Where rated walls are required
between Leased Premises and service/exit corridors Landlord shall
install 5/8" fire code gypsum board from the floor to the roof deck on
both Landlord and Tenant sides, along demising partitions separating
Tenant from service/exit corridors.
5. Demising Strip. Where Landlord desires, a vertical demising strip may
be located at the storefront line between stores. The center line
and/or back side of said strip may or may not precisely coincide with
the lease line defining the Leased Premises.
6. Exterior Service/Exit Door. Where Leased Premises abuts an outside
wall, Landlord shall install one (1) 3'0" X 7'0" x 1-3/4" (prime
coated only on inside face) hollow
Exhibit C, Rough Shell
Page 1 5/1/98
63
metal door and frame (with 1-1/2 pair butts and temporary lockset) as
required by code or Landlord's insurance carrier. The outside face of
door will be finished by Landlord to match adjacent construction and
may not be modified by Tenant. The location of such door (if any) will
be indicated on the Lease Outline Drawing. Tenant's store name and
space number will be applied adjacent to the door by Landlord per
Landlord's Architect's specifications in accordance with Exhibit D.
7. Interior Service/Exit Door. Where the Leased Premises abuts an
interior exit/service corridor, Landlord shall install one (1) 3'0" x
7'0" x 1-3/4" hollow metal door and frame (with 1-1/2 pair butts and
temporary lockset), as required by code or Landlord's insurance
carrier. The hollow metal door and frame will be finish painted on the
corridor side with a color selected by Landlord. Tenant's store name
and space number will be applied adjacent to the door by Landlord, per
Landlord's Architect's specifications in accordance with Exhibit D.
8. Floor Slab. Landlord shall furnish a 4" thick slab on-grade with
smooth trowelled concrete surface. The floor elevation may be 3/4"
below finished floor elevation in the mall areas adjacent to the
Leased Premises. The slab will be designed to support a load of not
less than 125 pounds per square foot.
9. Storefronts and Sign Bands. The configuration of the storefront lease
line, as established by Landlord, shall be the line beyond which no
element of the storefront may extend and may not necessarily follow
the line of construction. The storefront furnished by Tenant shall
include one entry complete with security closure.
The width of the security closure will be as follows:
Storefront width up to 25' - 8' wide
Storefront width up to 26' - 35' - 10' wide
Storefront width 36' and up - 12' wide
B. FINISH WORK OUTSIDE THE LEASED PREMISES
1. Exterior Areas. Landlord shall provide parking areas, access roads,
delivery areas, drainage systems, walks, ramps, lighting, landscaping
and planting, striping, signage, and other facilities and improvements
as determined by Landlord in the exterior common area.
2. Interior Areas. Landlord shall provide enclosed air conditioned and
lighted malls, courts and entry-ways, lighted delivery areas, service
and exit corridors, ramps, public restrooms, meter and valve rooms and
all other areas, facilities, and buildings used in the maintenance and
operation of The Project as determined by Landlord.
C. BUILDING UTILITY SYSTEMS SERVING THE LEASED PREMISES
1. HVAC System. Landlord will provide either 1) a central condenser water
distribution system to provide cooling water for air conditioning
unit(s) provided by Tenant in the Leased Premises in accordance with
the Tenant Handbook referenced in Exhibit D. Landlord's portion of the
condenser water system shall terminate at valved and capped outlets
within the Leased Premises as indicated on the Lease Outline Drawing
or 2) a roof-top package unit system, providing at least 35 tons of
air conditioning. In this case Landlord to install roof opening and
curb at Tenant's expense for roof-top air conditioning equipment to be
furnished and installed by Tenant in accordance with Tenant Handbook
from Landlord's HVAC inventory.
2. Electrical System. Landlord shall bring primary electrical service to
the Retail Development. An empty secondary electrical distribution
conduit only shall be extended by Landlord from the electric room to a
point within the Leased Premises
Exhibit C, Rough Shell 5/1/98
Page 2
64
as indicated on the Lease Outline Drawing. Electrical service
furnished by Landlord shall consist of 277/480 volt 3 phase four wire
service 400 amp service. Tenant to complete electrical system in
accordance with Exhibit D and the Tenant Handbook.
3. Plumbing System. If required by code, Landlord shall provide 3/4"
valved and capped domestic cold water line, a 1" condensate drain
line, if applicable, and a 4" sanitary sewer line at the rear of the
Leased Premises, as indicated on the Lease Outline Drawing. Tenant
shall connect to Landlord's plumbing system and extend service within
the Leased Premises according to Tenant's approved plans and in
accordance with requirements of Exhibit D and the Tenant Handbook.
4. Sprinkler System. Landlord shall install a wet sprinkler fire
protection system in the common areas and within the Leased Premises
including, but not limited to, risers, bulk mains, cross mains, branch
lines and upturned sprinkler heads at the bar joists. Within the
Leased Premises the sprinkler system provided by Landlord shall have
one (1) head per 100 square feet. The quantity of heads provided by
Landlord will be the minimum required by code or other governing
agencies. The mains and cross mains will be designed to accept
additional heads up to a maximum coverage of one (1) head per 80
square feet of Leased Premises. Additional or relocated heads shall be
installed or relocated by Landlord's designated sprinkler contractor
as required by Tenant's layout and as described in Exhibit D and the
Tenant Handbook. Tenant shall pay Landlord for the cost thereof in
accordance with Exhibit D.
5. Telephone System. Landlord shall extend empty raceway or J hooks from
a telephone junction board to a point within or adjacent to the Leased
Premises as indicated on the Lease Outline Drawing.
6. Mechanical Smoke Venting. Landlord's building has been designed to
provide smoke venting via mechanical fans, open ceilings and no
separation above 12'-0" between Tenant premises. Any Tenant required
by Code or the authority having jurisdiction to provide separate smoke
venting, or whose tenant space design interferes with normal
functioning of Landlord's smoke venting system, must install a
complete smoke venting system to meet code in accordance with Exhibit
D and the Tenant Handbook.
D. GENERAL PROVISIONS
1. Minor changes in any plans or specifications covering Landlord's Work
which may be necessary during design and construction of The Project
or affecting the Leased Premises shall not in any way invalidate the
terms of the Lease or this Exhibit C nor shall it require the Landlord
to provide any work not described herein. Notwithstanding the
foregoing, any changes which would materially impact Tenant's Store
Design and Working Drawings must be made at least sixty (60) days
prior to the Delivery of Possession date.
2. Landlord shall have the right to specify or change the location,
either before or after construction, of all utility lines, condenser
water lines, condensate drain lines, drains, sprinkler mains and
valves, and such other facilities within the Leased Premises as are
necessary by engineering design and/or Code requirements. These items
as described above shall be located so as not to materially interfere
with Tenant's use of the Leased Premises. Landlord shall have the
right to relocate and specify the location of mechanical and other
equipment on the roof over the Leased Premises. To the extent that
such utility lines, condenser water lines, condensate drain lines,
drains, sprinkler mains and valves and other facilities within the
Leased Premises are relocated, Landlord shall be responsible for
paying for any changes in either Tenant's plans or connecting Tenant
installed improvements to such relocated facilities.
Exhibit C, Rough Shell
Page 3 5/1/98
65
4. Landlord shall have the right to perform, at Tenant's expense, any of
Tenant's Work which is not being timely or properly performed by
Tenant which Landlord determines in its sole discretion be performed:
(a) immediately and/or on an emergency basis for the best interest of
The Project, (b) to the extent required for Landlord's compliance
with all applicable building codes, or (c) to the extent necessary to
obtain any Certificate of Occupancy required by the Landlord or any
other tenant in The Project. Except in the event of an emergency,
Landlord shall give Tenant forty-eight hours notice of its intention
to undertake such work and Landlord shall refrain from undertaking
such work if Tenant commences to cure during such 48-hour period.
Exhibit C, Rough Shell
Page 4 5/1/98
66
SPECIALTY TENANT LEASE EXHIBIT
EXHIBIT D
TENANT'S WORK -- ROUGH SHELL
PREFACE
This Exhibit "D" is intended to describe the obligation of the Tenant in the
design and construction of the Leased Premises. Landlord's Work will be limited
to the work described in Exhibit C. Any part of Tenant's Work which is
accomplished by Landlord for Tenant pursuant to the terms of this Exhibit D
will be accomplished by Landlord at Tenant's expense. The work of Tenant
described in Exhibit D is intended to complete the Leased premises in
accordance with Tenant's drawings as approved in writing by Landlord to a
finished condition ready for the conduct of business therein. All finished
installations will be deemed incomplete until approved by Landlord. Tenant's
Work shall conform to the procedures, schedules and reimbursement requirements
set forth in Sections 2 and 3 of this Exhibit. Exhibit D shall govern over any
inconsistencies with Exhibit C.
Landlord and Tenant have a common interest in opening the Leased Premises on
the Grand Opening Date. To this end, Landlord will coordinate its work with
Tenant's work insofar as the schedule for such Grand Opening Date and prudent
construction practice allows and will assign one or more tenant coordinators to
function as liaison between tenants and Landlords. Further to this end, Tenant
and Tenant's contractors agree to abide by Landlord's Construction Rules and
Regulations which may be issued from time to time. In order to ensure that the
Tenant's store interior and signage design are orderly and aesthetically
coordinated with Landlord's building, and to ensure that Landlord's storefront
and signage requirements are understood by Tenant, its designers, engineers,
contractors, and other representatives, Landlord has drafted and Tenant shall
follow the architectural and signage criteria established in the Tenant
Handbook (Tenant Design Criteria) hereinafter referred to as "Tenant Handbook".
In order to ensure that the Tenant's HVAC, plumbing and electrical systems are
compatible and coordinated with the Landlord's building, and to ensure that the
Landlord's HVAC, plumbing and electrical requirements are understood by Tenant,
its designers, engineers, contractors, and other representatives, Landlord has
drafted and Tenant shall follow the mechanical and electrical criteria
established in the Tenant Handbook.
All Tenant construction shall be in accordance with the requirements of all
applicable codes, ordinances, rules and regulations of all authorities having
jurisdiction over the work including all requirements of the Landlord's
insurance carrier.
Construction shall conform to the requirements for a fully sprinklered building
in accordance with the fire protection and building code program of the local
jurisdictional authority as well as the Development Agreement and the Master
Declaration if applicable. Tenant shall secure all necessary permits including,
but not limited to, occupancy and health department permits from the
jurisdictional authorities in sufficient time to allow Tenant to open the
Leased Premises on the Grand Opening Date. Tenant shall furnish to Landlord
upon receipt, copies of all building permit applications, statements,
amendments and the like, and all permits, inspection reports, certificates, and
other documents as required by authorities having jurisdiction of The Project.
Tenant, at its sole cost and expense, shall perform all work other than work to
be performed by Landlord as set forth in Exhibit C, required to complete the
Lease Premises to a finished condition ready for the conduct of business
therein.
All of Tenant's work within the Leased Premises performed pursuant to this
Section 1 shall, for the purpose of this Lease to which this Exhibit is
attached, be deemed to be improvements made to the Leased Premises by Tenant at
Tenant's expense.
Exhibit D, Rough Shell
Page 1 5/1/98
67
SECTION 1 - TENANT CONSTRUCTION WORK WITHIN THE PREMISES
A. GENERAL CRITERIA
The criteria and outline specifications set forth herein represent minimum
standards for the design, construction, and finish of the Leased Premises
by Tenant.
1. Jurisdictions and Codes. The Project is being developed in and under
the jurisdictions of the State, County and City in which The Project
is located. All design and construction work shall comply with all
applicable statutes, ordinances, regulations, laws and codes and the
requirements pertaining to service and utilities furnished by utility
companies, all applicable state, county, and local statutes and
ordinances, and OSHA regulations.
2. Permits and Approval. Prior to the commencement of construction, all
building and other permits shall be obtained and posted in a prominent
place within the Leased Premises. Landlord's written approval shall be
obtained by Tenant prior to the undertaking of any construction work
which deviates materially from Tenant's approved Store Working
Drawings and Specifications, or which modifies whatsoever Landlord's
building shell or utilities, or any work not explicitly shown on said
Store Working Drawings and Specifications. Landlord's approval of the
foregoing shall not constitute the assumption of any responsibility by
Landlord for the accuracy or sufficiency thereof, and Tenant shall be
solely responsible. To the extent and material changes, changes which
modify the building shell or utility or new work are required,
Landlord shall not unreasonably withhold its approval of the same.
3. Floor Loads. The slab on-grade has been designed to carry a total
load (dead and live) of 125 pounds per square foot. Any loading
imposed by any of Tenant's Work, either on a temporary or permanent
basis, shall not exceed 125 lbs./SF (""Allowable Load").
4. Standard Project Details. Standard Project Details, as issued by
Landlord's Architect from time to time and as they pertain to Tenant's
Work, shall govern with respect to Tenant's Work. Such details shall
be incorporated into the Tenant's Store Working Drawings and
Specifications for the Leased Premises.
5. Materials. Only new, first-class materials shall be used in the
construction of the Leased Premises. Used, first-class materials for
interior architectural facades and fixtures may be used provided such
materials are noted on the Tenant's plans and approved by Landlord
through field inspection.
6. Field Conditions. From time to time, the Tenant is obligated to
verify conditions pertaining to the Leased Premises prior to and after
commencement of construction of its Leased Premises. Tenant shall
coordinate its work with the work of Landlord, other tenants, and with
existing conditions above, below and adjacent to the Leased Premises.
Tenant shall make changes as required to accommodate such work or
conditions.
7. Tenant Handbook. Landlord shall provide Tenant with a Tenant Handbook
("Tenant Handbook"), and Tenant shall comply with all design criteria,
procedures for drawings, specifications, and construction, and other
rules, regulations and provisions therein. To the extent, if at all,
that the Tenant Handbook may conflict with the provisions of the
Exhibit D, the provisions of the Tenant Handbook shall govern.
Exhibit D, Rough Shell
Page 2 5/1/98
68
B. ARCHITECTURAL FINISHES
1. Floors. Tenant finish floor covering materials must be selected and
adapted in thickness to correspond in elevation exactly with the level
of the finished mall floor, which may be approximately 3/4" above the
concrete floor of the Leased Premises at the Lease Line. Quality floor
materials, such as carpeting, glazed or unglazed tile, wood parquet,
or marble shall be used in the sales area of the Leased Premises. All
flooring finish materials are subject to Landlord's approval.
2. Storefront. Tenant's storefront shall be designed and constructed by
Landlord as provided in Exhibit C and as described in the Tenant
Handbook.
3. Interior Partitions. All interior partitions by Tenant within the
Leased Premises shall be metal stud construction and shall have 5/8"
gypsum board finish on all sides with taped and spackled joints. Any
combustible materials applied to partitions shall meet all flamespread
and smoke generation requirements of jurisdictional authorities and
receive a U.L. labeled fire retardant coating if required by Code.
Walls dividing the Leased Premises from service and exit corridors, or
other rated enclosures, shall receive, on Tenant's side, sufficient
layers of drywall to complete the necessary rating. Landlord shall
install service and exit corridor drywall at Tenant's expense. Any
Tenant penetrations of rated partitions shall be specifically approved
in writing by Landlord and governing authorities as a portion of the
permitting process.
4. Demising Partitions. Demising partitions are not load bearing and
Tenant may not hang fixtures from them. Should Tenant require
structure and/or backing to accommodate the loading of Tenant's wall
hung fixtures, said request shall be in writing to landlord for
approval. Additional structure and backing shall be furnished and
installed by Tenant at Tenant's Expense. Tenant shall install drywall,
taped and spackled on demising partitions between tenants. No drywall
shall be placed on demising partitions above 12'-0" without Landlord's
specific approval. Above 12'-0" the Tenant may, subject to Landlord's
prior written approval, continue with wire mesh for security purposes
if so indicated on Tenant's construction drawings. The Tenant, upon
Landlord's approval, may also install drywall to a higher level if
openings of sufficient size are provided to assure that the smoke
venting system provided by the Landlord functions as designed - see
Tenant Handbook for specific requirements.
5. Exterior Walls. Tenant shall install all finishes on the inside face
of exterior walls within Leased Premises.
6. Service and Exit Corridor Partitions. Any Tenant penetrations of
rated partitions, and relocations and/or additions to Landlord
furnished exit doors, shall be specifically approved in writing by
Landlord and governing authorities as a portion of the permitting
process. Any framing, cutting, patching of the corridor wall surfaces
including the building of vestibules to provide for the nonimpingement
of the door into the corridor traffic way, and other work related
construction shall be coordinated and consistent with Landlord's work,
including but not limited to the provision of 4'-0" high 1/4" masonite
board and metal cornerguards. Walls dividing the Leased Premises from
service and exit corridors, or other rated enclosures, shall receive,
on Tenant's side, sufficient layers of drywall to complete the
necessary rating. All materials used in corridor construction shall be
fire rated. Any Tenant penetrations of rated partitions shall be
specifically approved in writing by Landlord and governing authorities
as a portion of the permitting process.
7. Interior Service/Exit Corridor Doors. If Tenant desires additional
service access to Leased Premises other than what is provided by
Landlord in Exhibit C then Tenant
Exhibit D, Rough Shell
Page 3 5/1/98
69
shall provide and install a 3'-0" X 7'-0" X 1-3/4" 18 gauge interior hollow
metal door, labeled as required, with a hollow metal 16 gauge frame, and
all hardware, in accordance with governing Codes. Any framing, cutting, and
patching of the corridor wall surfaces including the building of vestibules
to provide for the non-impingement of the door into the corridor traffic
way, and other work related thereto shall be the responsibility of the
Tenant. Hollow metal door and frame are to be finish painted on the
corridor side with a color selected by Landlord. Tenant's store name will
be applied adjacent to the door by Landlord, at Tenant's expense, per
Landlord's Architect's specifications.
8. Door Relocation. The relocation of any exterior Tenant door shall be
performed by Landlord at Tenant's sole expense and must be coordinated with
the structure of Landlord's building.
9. Door Hardware. Tenant shall furnish and install all door locks and exit
devices on all interior service doors, exterior doors, exit corridor doors,
and storefront, using hardware recommended by Landlord in the Tenant
Handbook.
10. Ceiling. Exposed and open grid systems are encouraged. All work related to
ceiling and ceiling treatments, if any, shall be the responsibility of
Tenant. All ceilings and ceiling treatments shall be of non-combustible
material approved by Landlord and shall maintain the degree of openness
required to preserve the operation of the smoke venting system and
sprinkler system in The Project as established by jurisdictional authority
and/or as described in the Tenant Handbook. Tenant's ceiling and ceiling
treatment shall be limited to a ceiling height not less than the code
required minimum nor higher than the maximum heights indicated in the
Tenant Handbook. The structure of Landlord's Building has been designed to
accept a super-imposed loading of three (3) pounds per square foot for the
installation of Tenant's suspended ceiling and equipment. Access (such as
access panels) and other openings shall be provided by Tenant where
Landlord deems necessary.
Tenants providing ceilings with less than the required degree of openness
shall provide smoke venting at Tenant's sole expense, both as required by
jurisdictional authorities and as described in the Tenant Handbook. If
Tenant's interior partitions and ceiling configuration cause the
requirement of additional sprinkler heads, such additional heads shall be
installed by Landlord's designed contractor at Tenant's expense both as
required by jurisdictional authority and Landlord's insurance carrier.
11. Interior Finishes. All finished interior surfaces must be materials
approved by Landlord for appearance. All Tenant fixtures, furniture,
carpeting (including underlayment), upholstery materials, drapery and other
furnishing must comply with flammability of materials and smoke generation
requirements for furniture and furnishings of local jurisdictional
authorities. All wood shall be fire retardant in accordance with code
requirements. All wood in contact with the floor shall be termite
retardant.
12. Finish Hardware. Commercial grade finish hardware, labeled where required,
shall be used throughout. All doors shall have at least one and one-half
(1-1/2) pair butts, wall or floor stops, kick plates, lock sets and
push-pull plates as required. All exit doors shall have hardware as
required by Code.
13. Toilet Room. Tenant shall construct restroom facilities, fixtures, toilet
partitions, and building specialty items such as toilet room mirrors,
dispensers, paper holders and amenities to fully meet the ADA Guidelines
and local codes.
Exhibit D, Rough Shell 5/1/98
Page 4
70
14. Mezzanines. Mezzanines will not be permitted (other than the
approximately 10' x 4' elevated stand which is part of Tenant's
prototype store design which must be supported from the floor).
15. Layout and Painting of Exposed Mechanical and Electrical Systems. All
Tenant installed ductwork, conduits, pipes and any other mechanical or
electrical equipment exposed to public view from outside the Leased
Premises, shall be laid out and installed in a neat and orderly
configuration. Tenant shall paint the above Tenant improvements with
either a black or a mutually agreed to color and finish if Tenant's
improvements can be seen from Mainstreet (i.e. those portions of the
common area made up of the pedestrian walkways outside of the Leased
Premises) above Tenant's storefront elevation or below the top of the
storefront but visible from Mainstreet.
C. STRUCTURAL
1. Modifications. Any alterations, additions, and/or reinforcements to
the structure of Landlord's building required to accommodate Tenant's
Work, must be designed by a registered structural engineer at Tenant's
expense. Tenant shall leave the structure of Landlord's building as
strong or stronger than original design and with finishes unimpaired.
Tenant's architect shall calculate or have calculated the structural
loads caused by Tenant's improvements and submit those calculations
for written approval by Landlord and Landlord's Architect prior to
Tenant's construction.
2. Loading. All loads individually hung from the structure in excess of
100 pounds shall be specifically approved by Landlord's structural
Engineer for location and method of support. All loads less than 100
pounds that are individually hung from the structure shall be hung in
accordance with the guidelines in the Tenant Handbook.
D. HEATING, VENTILATING AND AIR CONDITIONING
1. Connection to Condenser Water System (if applicable). Not applicable.
2. HVAC System. A complete air conditioning system to suit Tenant's
requirements shall be designed, furnished, installed and maintained by
Tenant in accordance with the requirements of the Tenant Handbook.
Tenant's portion of the HVAC system shall include an air conditioning
unit(s), ducts, insulation, fire dampers, outlets, grilles and
controls to maintain temperatures per Tenant Handbook. If roof-top
units are required, Landlord shall install roof-top curb at Tenant's
expense. All Tenant ductwork shall be internally insulated and Tenant
shall make all connections to Landlord installed systems in a manner
fully satisfactory to Landlord.
3. Toilet Exhaust System. Tenant installed toilet facilities within the
Leased Premises shall include a complete toilet exhaust system
according to Code and the requirements of the Tenant Handbook.
4. Outside Air Connection. Landlord, at Tenant's expense, will provide a
roof xxxx for Tenant's connection to provide outside air to Tenant's
HVAC system. Tenant shall provide outside air ventilation as required
by Code and the Tenant Handbook. No openings for fans, vents, louvers,
grilles, or other devices shall be installed in any demising
partition, exterior wall, or roof without Landlord's prior written
approval. All roof and/or wall penetrations required for Tenant's
plumbing, mechanical,
Exhibit D, Rough Shell 5/1/98
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electrical work and any other Landlord approved Tenant work shall be
made by Landlord's designated contractor at Tenant's expense.
5. Smoke Venting. If the authority having jurisdiction requires
individual smoke venting from the Leased Premises, Tenant, at Tenant's
expense, shall provide the complete required smoke system, discharging
vertically through a roof vent at sufficient velocity to carry the
discharge away from any intakes on the roof. Roof vents will be
installed by Landlord's designated contractor at Tenant's expense and
in accordance With the Tenant Handbook.
6. Refrigeration. Tenants may not connect refrigeration equipment to
Landlord's condenser water system. Landlord's condenser water system
will not operate during unoccupied hours. Refer to the Tenant Handbook
for requirements regarding Tenant's refrigeration equipment.
7. Exhaust/Negative Pressure. All exhaust and make up air systems shall
be by Tenant in accordance with Exhibit D and the Tenant Handbook. As
determined by Landlord, all tenants producing odors within their
premises shall be required to install full height partitions and
provide supplemental exhaust to the exterior of the building to keep
the premises at a negative pressure relative to Mainstreet and all
adjacent areas.
E. ELECTRICAL
1. System. Tenant shall design, furnish, install and maintain a complete
electrical distribution system, including but not limited to
conductors to electrical room connected to load side of meter socket,
transformer, distribution panels, circuits, conductors, fixtures and
devices, within the Leased Premises in accordance with the
requirements of the Tenant Handbook. No appurtenances, including but
not limited to light fixtures, antennas, signs, etc., will be affixed
to the exterior walls or roof of Landlord's Building without
Landlord's express written permission.
2. Electrical Construction.
a. Material - All electrical materials shall meet National
Electrical Code Standard, unless a better grade is required by
local Code. All materials shall be new and shall bear evidence of
approval by Underwriter's Laboratory (UL). All conductors shall
be copper. Aluminum conductors will not be allowed.
b. Lighting Fixtures - Recessed fixtures installed in furred spaces
shall be connected by means of flexible conduit and approved
fixture wire, connected to a branch circuit outlet box which is
independent of the fixture.
c. Fluorescent Fixtures - All fixtures shall be provided and
installed by Tenant with switch legs and local switches rated 20
amps at 277 volts. All fluorescent fixtures shall have internal
protection devices. Fluorescent ballasts shall be high power
factor type with individual non-resetting overload protection.
Ballast harmonics may not exceed that Total Harmonic Current
Distortion allowable by the electric utility. All lamps subject
to public view shall have warm white deluxe or better color
rendition. Cool white may be used only in storage areas not
exposed to public view.
d. Electric Meter - Where Landlord does not provide electricity from
a master meter and redistribute to Tenants, Tenant shall make
direct arrangements with the local electric utility company to
furnish and install electric meter to measure Tenant's use of
electricity.
Exhibit D, Rough Shell
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72
e. Panel Boards - Panel boards shall be furnished and installed
by Tenant. 120/208 volt panels and 277/480 volt panels shall
both be equipped with single or multiple pole bolted thermal
magnetic breakers.
f. Short Circuit Ratings - Tenant's electrical distribution
system shall be designed to withstand and safely interrupt
an available short circuit current indicated in the Tenant
Handbook.
g. Transformer - All necessary transformers shall be furnished
and installed by Tenant. All ceiling hung transformers over
100 pounds shall be approved by Landlord's Structural
Engineer for location and method of support. All ceiling
hung transformers less than 100 pounds shall be hung in
accordance with the requirements in the Tenant Handbook.
h. Nameplates - The following equipment shall be identified
with engraved Bakelite nameplates: distribution panels,
motor starters, lighting panels and push-button stations.
F. PLUMBING
1. System. Tenant shall connect to Landlord's plumbing system as
described in Exhibit C and the Tenant Handbook. Tenant shall provide a
complete plumbing system within the Leased Premises, including but not
limited to, fixtures and toilet accessories as required by Code.
Tenant shall provide accessible clean outs in toilet areas. Plumbing
work must be installed according to all appropriate Codes and
requirements of the Tenant Handbook. Landlord's approval of Tenant's
plans is not a statement that the plans are in compliance with Code or
other local requirements. Tenant shall be required to provide vent
connections and a toilet room exhaust connection, if necessary,
through the roof as required by Code and the Tenant Handbook. All such
penetrations shall be by Landlord's designated contractor at Tenant's
sole expense.
2. Water Heaters. Electric water heaters shall be automatic and a maximum
capacity of 2 k.w. All units shall be UL approved and conform to the
requirements of the local Energy Code. Water heaters must have
temperature/pressure relief valves with discharge piping according to
Code.
3. Water Meters. All restaurants, food court tenants, salons, pet stores
and any other high volume users of water (as determined by Landlord)
shall furnish and install water meters at Tenant's expense in
accordance with the Tenant Handbook.
4. Condensate Drains. Tenant shall extend and connect condensate drain
line(s) from Tenant's air conditioning unit(s) in accordance with the
Tenant Handbook.
5. Connection. If Tenant's restroom location, on Tenant's Store Working
Drawings does not coincide with Landlord's utility location, Tenant,
at Tenant's expense, shall move utility to coincide with Tenant's
Store Working Drawings with Landlord's prior approval. All cutting and
placing of concrete is by Tenant.
G. FIRE PROTECTION SYSTEM
All revisions to the fire protection system required by Tenant's layout
shall be performed by Landlord's designated sprinkler contractor at
Tenant's sole expense. Landlord's sprinkler contractor shall design system
revisions in accordance with Tenant's Store Working Drawings. Such designs
may involve additional heads, relocated heads, heads in refrigeration
boxes, toilet rooms, kitchen exhaust ducts, and/or at Tenant's request,
heads
Exhibit D, Rough Shell 5/1/98
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73
located to conform with Tenant's ceiling pattern and layout. All design and
construction shall be governed by Code and the requirements of Landlord's
insurance carrier.
Tenants are required by local code to provide fire extinguishers, at least
one to be installed within 25 feet of the Tenant's entry off Mainstreet.
H. TELEPHONE
Tenant shall arrange directly with the local Telephone Company for
telephone service. Tenant shall furnish, install and maintain telephone
wiring and equipment within the Leased Premises to suit Tenant's
requirements at Tenant's expense.
I. SIGNAGE
Guidelines. All signs shall be designed, constructed and located in
accordance with Landlord's sign Criteria, Exhibit E, the Tenant Handbook,
and as approved by Landlord.
J. FIXTURES AND FURNISHINGS
Tenant shall furnish and install in the Leased Premises all fixtures,
furnishings. equipment, shelving, trade fixtures, leasehold improvements,
interior decorations, graphics, signs, mirrors, cornices, covers and
decorative light fixtures, portable fire extinguishers as required by Code
and the Tenant Handbook, and other special effects, all as approved by
Landlord.
All Tenant improvements, other than mechanical equipment, ceilings, and
lighting fixtures, shall be floor-mounted unless written approval is
obtained from Landlord.
K. MISCELLANEOUS REQUIREMENTS
1. Tenant's Contractor. Work undertaken by Tenant at Tenant's expense (a)
shall not be awarded to Landlord's contractor without Landlord's
written consent, except that an approved list of contractors is
attached hereto as Exhibit D-1 and (b) may only be awarded to a
reputable and bondable contractor or contractors licensed to do
business in the State, County and City in which The Project is
located.
Tenant's contractor shall adhere to Landlord's policy of a drug and
alcohol free workplace.
2. Equipment Screening. Tenants requiring mechanical or electrical
equipment, antennas, and the like shall not have the same placed on
the roof or the exterior of the building without the prior express
written approval of Landlord. All such equipment, if allowed, shall be
screened from the view of the public from any point within the project
site. All screening materials, construction details, and construction
techniques shall be approved by Landlord in writing, prior to any such
work by Tenant.
3. Clean-Up. Tenant shall cause its contractors to maintain the Leased
Premises in a clean and orderly condition during construction. All
unusable shipping containers, packaging, and other debris shall be
broken down and contained within the Leased Premises until removed by
Tenant's contractor to containers provided by Landlord outside
Landlord's Building. Flammable waste must be confined to covered metal
Exhibit D, Rough Shell 5/1/98
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74
containers until removed by Tenant. All usable construction material,
equipment, fixtures, merchandise, etc. must always be contained within
the Leased Premises. Malls, courts, arcades, public corridors,
service/exit corridors and the exterior of Landlord's Building shall
be kept clean at all times. If Tenant fails to clean up, Tenant hereby
authorizes Landlord to clean up for Tenant at Tenant's expense.
4. Full Payment. Tenant shall satisfy Landlord that adequate arrangements
have been made to ensure that all Tenant's contractors shall be paid
in full for work ordered by Tenant. Tenant is advised to familiarize
itself with the mechanic's lien laws in the State in which The Project
is located and shall hold the Landlord harmless for any liens filed
against the property of the Landlord for the work of the Tenant.
5. Character of Employees. Tenant will not employ any unfit person or
anyone not skilled in the work he is performing, or any xxxxxxx that
is incompatible with the balance of the work force or who will cause,
or whose presence will cause, labor disputes or work stoppages. In the
event any employee(s) of Tenant or Tenant's contractor(s) causes a
labor dispute or work stoppage, Tenant expressly agrees to have such
employee(s) immediately removed from the Project upon Landlord's
request, and that Tenant's failure to do so shall constitute an event
of Default under the Tenant's Lease of which this Exhibit is a part.
SECTION 2: PROCEDURE AND SCHEDULES FOR THE COMPLETION OF TENANT'S PLANS AND
SPECIFICATIONS
Unless otherwise notified by Landlord, all prints, specifications, and other
material to be furnished by Tenant as herein required shall be sent to: Tenant
Coordinator (Address to be furnished when available).
Tenant shall engage an architect ("Tenant's Architect") registered in the State
and licensed to do business in the County and the City in which The Project is
located to prepare the Working Drawings and Specifications to be submitted for
Landlord's approval. The fees for Tenant's Architect shall be paid by the
Tenant.
A. LEASE OUTLINE DRAWINGS
Following execution of the Lease of which this Exhibit is a part, Landlord
shall furnish Tenant with two (2) prints of the Lease Outline Drawings
(LOD) giving technical and design information relative to the Leased
Premises along with other drawings that may be helpful to Tenant in the
design of its store.
B. STORE DESIGN DRAWINGS
1. Within forty-five (45) days of whichever of the following shall be the
later to occur: (a) receipt of Lease Outline Drawings from Landlord or
(b) the execution
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75
of the Lease; the Tenant shall submit to Landlord one (1) set of sepia
reproducible prints and three (3) sets of blueline prints of Store
Design Drawings, showing the intended design, character, and finishes
of the Leased Premises. The Store Design Drawings shall comply with
the design criteria of The Project as described in this Exhibit D and
in the Tenant Handbook and shall set forth the requirements of Tenant
within the Leased Premises. Said Drawings shall include, but not be
limited to the following:
a. Architectural design of the space, including an elevation of
Landlord's storefront showing Tenant's signage, floor plans,
elevations, sections, and renderings indicating material and
color selections and finishes, and layout including location of
fixtures both permanent and movable. Provide the weights of all
items to be suspended above from the structure in excess of 100
pounds each.
b. Mechanical System: Basic equipment to be used and its location,
duct distribution system, diffuser locations, and any louvers or
vents to be provided for Tenant by Landlord at Tenant's expense.
Provide projected mechanical loads on forms provided by Landlord
in the Tenant Handbook.
c. Electrical System: Reflected ceiling plans indicating type of
lighting fixtures, and floor plans showing outlets and other
electrical equipment contemplated with location of panel and
switchboard. Provide projected electrical loads on forms provided
by Landlord in the Tenant Handbook.
d. Plumbing System: Floor plans showing the location, layout, and
type of fixtures to be furnished, including riser diagrams.
e. Fire Protection System: Location of any specialty heads Tenant's
architect may require.
f. Tenant shall identify in writing all intended exceptions to the
design criteria contained in the Tenant Handbook and/or this
Exhibit D.
2. After receipt of Store Design drawings, Landlord shall, within seven
(7) business days, return to Tenant One (1) set of Store Design
Drawings with modifications and/or approval. If, upon receipt of
approved Store Design Drawings bearing Landlord's comments, Tenant
wishes to take exception thereto, Tenant may do so in writing within
seven (7) days from date of receipt of said drawings, by certified or
registered mail addressed to Landlord, at the above address, and the
notice address in the Lease. Unless such action is taken, it will be
deemed that all comments made by Landlord on Store Design Drawings are
acceptable to and adopted by Tenant.
3. If Store Design Drawings are returned to Tenant with comments, but not
bearing approval of Landlord, said Store Design Drawings shall
immediately be revised by Tenant and resubmitted to Landlord for
approval within seven (7) days of their receipt by Tenant.
C. STORE WORKING DRAWINGS AND SPECIFICATIONS
1. Store Working Drawings and Specifications shall be prepared in strict
compliance with the design criteria and requirements as set forth in
this Exhibit D and the Tenant Handbook and shall adhere to the Store
Design Drawings as approved by Landlord. Store Working Drawings to
minimum scales as called for below, and Specifications shall include,
but not be limited to, the following:
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Page 10
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a. Key plan showing location of the Leased Premises relative to the
entire mall.
b. Floor plan at a minimum scale of 1/4" = 1'0".
c. Overall sections at 1/4" = 1'0".
d. Reflected ceiling plan at a minimum scale of 114" = l'0".
e. Plans, elevations, and section of storefront (if to be
constructed by Tenant) at 1/2" = 1'0", with finish materials
board including manufacturers, model numbers, color numbers, and
all other identifying information. Details of storefront at
1-1/2" = 1'0".
f. Interior elevations at 1/4" = 1'0".
g. Full sections of types of partitions used at 1/2" = 1'0".
h. Details of special conditions encountered at 1-1/2" = 1'0".
i. Door schedule with jamb details at 1-1/2" = 1'0"
j. Finish and color schedules with samples.
k. Plumbing, heating, ventilating, and cooling plans, at 1/4" =
1'0".
l. Mechanical details at 1-1/2" = 1'0".
m. Electrical plans at 1/4" = 1'0"
n. Electrical details, fixture schedules, and one-line electrical
riser diagram.
o. Mechanical and electrical load tabulations on forms provided by
Landlord in the Tenant Handbook.
p. Structural load tabulations.
q. Specifications covering all of Tenant's Work, including, but not
limited to, architectural, electrical, plumbing, heating,
ventilating, and air conditioning.
r. Layout of fixture location, both permanent and movable.
s. Any and all other plans and specifications as may be required by
the local fire and building authorities or other governing
bodies.
2. All Store Working Drawings and Specifications prepared by Tenant's
Architect shall be submitted by Tenant, in the form of one (1) set of
reproducible sepia prints, specifications and three (3) sets of
blueline prints to Landlord for approval within 21 days from receipt
by Tenant of Landlord's written approval of Store Design Drawings.
3. As soon as practicable after receipt of Store Working Drawings and
Specifications, Landlord shall return to Tenant one (1) set of prints
of Store Working Drawings and Specifications with its suggested
modifications and/or approval. If. upon receipt of approved Store
Working Drawings and Specifications bearing Landlord's comments,
Tenant wishes to take exception thereto, Tenant may do so in writing,
by certified or registered mail addressed to Landlord at the above
address and at the notice address in the Lease, within seven (7) days
from the date of receipt of Store Working Drawings and Specifications.
Unless such action is taken, it will be deemed that all comments made
by Landlord on Store Working Drawings and Specifications are
acceptable to and adopted by Tenant.
4. If Store Working Drawings and Specifications are returned to Tenant
with comments, but not bearing approval of Landlord, said Store
Working Drawings and Specifications shall immediately be revised by
Tenant and resubmitted to Landlord for approval within seven (7) days
of their receipt by Tenant.
5. "For Construction" Store Working Drawings and Specifications prepared
by Tenant's Architect shall be submitted by Tenant in the form of one
(1) set of mylar reproducible prints and specifications and three (3)
sets of blueline prints. "For Construction" shall be marked clearly on
each copy in red. Such drawings and specifications shall reflect
correction of all Landlord's comments to the Store Working Drawings
and Specifications returned by Landlord.
Exhibit D, Rough Shell 5/1/98
Page 11
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6. Store Working Drawings shall be submitted to the local Authorities
having jurisdiction for building permit after such drawings have been
approved by Landlord in the submittal process as outlined above.
7. Landlord and Landlord's architect shall, from time to time, be
entitled to monitor Tenant's Work and shall have the right to require
all work which does not comply with Tenant's approved Store Working
Drawings and Specifications to be corrected within thirty (30) days of
notification to Tenant.
SECTION 3: PROCEDURE AND SCHEDULES FOR THE CONSTRUCTION OF THE LEASED PREMISES
BY TENANT
A. COMMENCEMENT OF CONSTRUCTION
Tenant shall start construction of its Leased Premises not later than ten
(10) days from either of the following dates, whichever shall be the later
to occur: (1) The date of receipt by Tenant of written notice from Landlord
that Landlord has substantially completed the work to be performed by
Landlord under Exhibit C, and payment therefore as required by Exhibit C is
due (other than such work which cannot be performed by Landlord until
Tenant makes the Leased Premises ready for the performance thereof) and
that the Leased Premises are ready for Tenant's work; or (2) the date on
which Landlord approves the Tenant's Store Working Drawings and
Specifications for the Leased Premises. Tenant shall carry such
construction to completion with all due diligence.
B. GENERAL REQUIREMENTS
1. Tenant shall submit to Landlord, via certified or registered mail, at
least five (5) days prior to the commencement of construction the
following information:
a. Copy of building and all other permits needed to perform Tenant's
Work within the Leased Premises.
b. The names and addresses of the general, mechanical, plumbing and
electrical contractors Tenant intends to engage in the
construction of the Leased Premises.
c. The actual commencement of construction date and the estimated
date of completion of construction work, fixturing work, and date
of projected opening.
d.
e. Itemized statement of estimated construction costs including
architectural, engineering, and contracting fees.
f. Evidence of insurance with a company or companies authorized to
transact business in which The Project is located as required
below.
g.
2. Tenant shall secure, pay for, maintain, and cause its contractors and
subcontractors to secure, pay for, and maintain, during the
continuance of construction and fixturing work within the Lease
Premises, all of the insurance policies required in the amounts as set
forth herein, together with such insurance as may from time to time be
required
Exhibit D, Rough Shell 5/1/98
Page 12
78
by City, County, State or Federal laws, Codes, regulations or
authorities. Tenant's Work may not commence, nor may Tenant permit its
contractors and subcontractors to commence any work, until all
required insurance has been obtained and certificates of such
insurance have been delivered to Landlord. Insurance policies shall
name the Landlord and assignees, Landlord's Architect and General
Contractor for the project as additional insureds. Certificates of
insurance coverage shall provide that no change or cancellation of
such insurance coverage shall be undertaken without thirty (30) days
written notice to Landlord. Landlord shall have the right to require
Tenant, and Tenant shall have the duty, to stop work in the Leased
Premises immediately if any of the coverage required herein lapses
during the course of the work, in which event Tenant's Work may not be
resumed until the required insurance is obtained and satisfactory
evidence of same is provided to the Landlord.
a. Tenant's General Contractor's Required Minimum Coverages and
Limits of Liability.
(1) Worker's Compensation Insurance, as required by State law,
and Employees Liability Insurance with a limit of not less
than [***] (or more if required by the law of the
State) and any insurance required by any Employee Benefit
Act or similar statute applicable where the work is to be
performed as will protect the contractor and subcontractors
from any and all liability under the aforementioned act(s)
or similar statute.
(2) Comprehensive General Liability Insurance (including
Contractor's Protective Liability) in an amount not less
than [***] per occurrence whether involving personal
injury liability (or death resulting therefrom) or property
damage liability or a combination thereof (combined single
limit coverage) with a minimum aggregate limit of
[***]. Such insurance shall include explosion, collapse
and underground (X,C and U) coverage and contractual
liability coverage for personal injury, death and damage to
the property of other arising from construction at the
Leased Premises, whether performed by Tenant's contractors,
subcontractors, or subsubcontractors, or by anyone directly
or indirectly employed by any of them.
(3) Comprehensive Automotive Liability Insurance, for the
ownership, maintenance, or operation of any automotive
equipment, whether owned, leased or otherwise held,
including employer's nonownership and hired car liability
endorsements, in an amount not less than [***] per
occurrence and [***] aggregate, combined single limit
bodily injury and property damage liability.
Such insurance policies shall insure the Tenant's general
contractor and all subcontractors against any and all claims
for bodily injury, including death resulting therefrom and
damage to the property of others arising from its operations
at the Leased Premises or in connection with construction of
the Leased Premises, whether performed by the Tenant's
general contractor, subcontractors, or subsubcontractors, or
by anyone directly or indirectly employed by any of them.
b. Tenant's Insurance Requirements
(1) Tenant shall obtain Owner's Protective Liability Insurance
as will insure Tenant against any and all liability for
damage from bodily
Exhibit D, Rough Shell 5/1/98
Page 13
*** Confidential treatment requested.
79
injury, including death resulting therefrom, or property
damage or a combination thereof which may arise from work in
connection with the Leased Premises, and any other liability
for damages which Tenant's general contractor and/or
subcontractors are required to insure against under any
provisions herein. Landlord and Landlord's Architect and
General Contractor shall be named as additional insureds.
Said insurance shall be provided in minimum amounts of
$5,000,000 aggregate, combined single limit bodily injury
and property damage liability.
(2) Tenant's Work Insurance: Tenant shall insure 100% of the
value of the work in the Leased Premises as it relates to
the building within which the Leased Premises is located,
with an "all risk" perils property insurance policy or a
completed value "all risk" perils Builder's Risk policy,
naming the interest of the Landlord and the Tenant's general
contractor and all subcontractors, as their respective
interests may appear.
3. All contractors engaged by Tenant shall be licensed contractors in the
State in which The Project is located possessing good labor relations,
capable of performing quality workmanship and working in harmony with
Landlord's General Contractor and other contractors on the job. All
work shall be coordinated with the general project work.
4. Tenant's contractors and construction shall comply in all respects
with applicable federal, state and local statutes, ordinances,
regulations, laws and codes. All required building and other permits
in connection with the construction and completion of the Leased
Premises shall be obtained and paid for the Tenant.
5. Tenant shall complete all work within the Leased Premises as
expeditiously as possible, but in no event later than in time to open
for business on the Grand Opening Date. Should Tenant fail to complete
its work within this schedule, Landlord may, at Landlord's option,
install temporary storefront or barricade at the Leased Premises at
Tenant's expense. Temporary storefront and other work performed by
Landlord which was made necessary due to the Tenant's failure to
complete its work in time for the Grand Opening Date, shall be payable
to the Landlord.
6. Landlord shall have the right to perform, on behalf of and for the
account of Tenant any of Tenant's work which Landlord deems necessary
to be done on an emergency basis or which pertains to structural
components, the general utility systems for The Project, roof and
exterior wall penetrations, or the erection of temporary barricades
and temporary signs, during construction for the period following the
Opening of The Project for business. Landlord will provide such work
at Tenant's expense.
7. Tenant's Work shall be subject to the inspection and approval of
Landlord and Landlord's Architect as to compliance with Tenant's
approved plans and standards of merchantability, provided that
Landlord and Landlord's Architect shall use its commercially
reasonable efforts to insure that its work does not interfere with
Tenant's Work.
8. Tenant shall pay or reimburse Landlord for all costs incurred by
Landlord (including deposits) for all utility meters for the Leased
Premises.
9. Upon the completion of the Tenant's Work, all facilities shall be in
full use without defects.
Exhibit D, Rough Shell 5/1/98
Page 14
80
10. All work performed by Tenant shall be performed so as to cause no
interference with other Tenants and the construction and operation of
The Project. Tenant will take all precautionary steps to protect its
facilities and the facilities of others affected by Tenant's Work and
properly police same. Construction equipment and materials are to be
located within the Leased Premises and truck traffic is to be routed
in and from the site, all as directed by Landlord and so as not burden
the construction and operation of The Project.
11. Upon and from the completion of Tenant's Work in the Leased Premises
and acceptance by Landlord's Architect, a minimum one-year warranty of
all work, materials, and equipment shall be provided to Landlord by
Tenant, to the extent the same are received by Tenant from its
contractors an or suppliers.
12. Landlord shall have the right to stop Tenant's Work whenever necessary
to obtain compliance with applicable building and safety codes or the
approved Store Working Drawings and Specifications.
13. Tenant and its contractors shall comply with the guidelines for Tenant
work procedures and temporary construction facilities set forth in the
Tenant Handbook, and Landlord's Construction Rules and Regulations
which may be issued from time to time.
14. Landlord shall have the right to order any Tenant or Tenant's
contractor who willfully violates any of the above requirements to
cease work, and to remove himself and his equipment and employees from
The Project.
C. TEMPORARY SERVICES AND FACILITIES DURING CONSTRUCTION
1. Utility costs or charges for any service to the Leased Premises shall
be the responsibility of Tenant from the date Tenant commences work or
is obligated to commence work, whichever is earlier.
2. If necessary, Tenant will provide temporary heat for the Leased
Premises during construction. No open burners are permitted and only
electricity may be used for temporary heat.
3. Temporary Electrical Services. If electrical service is not available
in the Leased Premises during construction, Landlord shall provide
electrical service in an area designated by the Landlord. Tenant shall
request, in writing, permission to connect temporary lines to the
power source for service to the Leased Premises. Tenant shall
reimburse Landlord for the Temporary Electric Services.
4. Temporary Trash Removal. During initial construction, fixturing and
stocking, Landlord shall provide trash removal service from the
service areas. It shall be Tenant's responsibility to break boxes down
and place trash daily in the containers provided. Trash accumulation
will not be permitted overnight in the Leased Premises, mall or
service/exit corridors. Tenant shall not allow trash to accumulate
within the Leased Premises nor shall Tenant place any trash in the
service/exit corridor or mall areas adjacent to the Leased Premises.
Tenant shall reimburse Landlord for the Temporary Trash Removal.
The period shall start with the date the Tenant starts construction in
its premises and ends with the date the Tenant opens for business.
In addition, Tenant shall pay any costs incurred by Landlord in
removing trash from areas in and around the Leased Premises.
Landlord's decision as to which Tenant is
Exhibit D, Rough Shell 5/1/98
Page 15
81
responsible for trash left outside the Leased Premises will be
reasonable and equitable, and Landlord's decision will be final.
5. Plans Review/Tenant Coordination. Landlord or its architect and/or
engineer shall review Tenant's plans and specifications for compliance
with the provisions of this Exhibit D and the Tenant Handbook. In
addition, Landlord shall assign a Tenant Coordinator(s) to work with
Tenant and Tenant's Architect, Engineer and contractor for the design
and construction of the Leased Premises. Tenant shall reimburse
Landlord for such plan review and tenant coordination as part of the
Temporary Charges provided for in C.9.
6. Temporary-Storefront. If Tenant is not open for business in the Leased
Premises and Landlord's Retail Development is open, or if, in
Landlord's sole judgment, Landlord determines that a temporary
storefront is necessary so as not to disrupt the construction, opening
or operation of any portion of The Project, then Landlord shall
install, at Tenant's expense, for Tenant's use during construction a
full height temporary barricade on the storefront lease line. Tenant
shall reimburse Landlord for the temporary storefront. Upon completion
of Tenant's construction and fixturing in the Leased Premises, Tenant
shall remove, disassemble and dispose of such temporary storefront.
7. Coming Soon Sign. If during Tenant's initial construction, fixturing
and merchandise stocking, The Project is open (or shall open) for
business, Landlord will provide and install, following the earlier to
occur of (a) erection of the initial construction barricade, or (b)
completion of the storefront for the Leased Premises, a "coming soon"
sign on the front (barricade or storefront, as the case may be) of the
Leased Premises. Tenant shall reimburse Landlord for providing such
sign.
8. Suite Number and Tenant Trade Name. Landlord shall furnish and install
suite number and Tenant trade name sign adjacent to Tenant's exterior
and/or interior rear exit door(s) in accordance with Landlord's
standard. Landlord shall also install suite number on Mall storefront.
Tenant shall reimburse Landlord for this service.
9. The charges for Temporary Services and Facilities as described in this
subsection C shall be:
Landlord's Charge
[***] psf
10. The charges identified in C.9 above shall be due and payable within
thirty (30) days after billing by Landlord. Landlord may decline at
Landlord's sole judgment to proceed with work at Tenant's expense
until Landlord's receipt of payment thereof.
D. COST PLUS ADMINISTRATION FEE WORK BY LANDLORD IN PREMISES AT TENANT EXPENSE
The following work in Tenant's premises shall only be accomplished by
Landlord in Landlord's building. The Tenant shall contract with the
Landlord to furnish the following work items if required by Tenant's store
design at Landlord's actual cost plus [***] for administration, and the
cost of any such item of work shall be payable to Landlord in full within
thirty (30) days after receipt of invoice therefore.
1. Openings in rated demising partitions and exterior wall, provided such
opening/penetrations have been approved in advance by Landlord in
writing.
Exhibit D, Rough Shell 5/1/98
Page 16
*** Confidential treatment requested.
82
2. Roof Openings. With Landlord's prior written permission, roof openings
for any purpose shall include supporting structures, curbs, roof
patching and flashing. Tenant shall be responsible for installation of
ducts, pipes, equipment and counter flashing. Landlord reserves the
right to refuse to permit the furnishing of any openings which exceed
the capability of the structural system or which in Landlord's opinion
would have an appearance detrimental to Landlord's Building.
3. Plumbing Service. With Landlord's written permission, additional
sanitary sewer or relocation of sanitary sewer.
4. Electric Service. With Landlord's written permission, additional
electric service or relocation of electrical service.
5. Storefront. With Landlord's prior written permission, changes to
Landlord furnished interior and exterior storefront including but not
limited to additional doors and relocation of doors.
6. Landlord's Labor (including overtime, demurrage and waiting time) and
equipment used in any work Landlord performs for Tenant.
7. Architectural and/or Engineering fees incurred Landlord as a result of
Tenant requesting any services in excess of the standard review
services described in Section
8. Building Department Expeditor Fees incurred by Landlord in expediting
Tenant Building Permit, Controlled Inspection and other requirements
for temporary and permanent Certificates of Occupancy on the building
and the Tenant Premises.
9. Building Permits, Microfilming and Documentation Fees paid by Landlord
on behalf of the Tenant in expediting the approval of Building Permits
and other approvals of Agencies having jurisdiction.
E. CERTIFICATE OF ACCEPTANCE
Upon the completion of Tenant's construction and fixturing work within its
Leased Premises Tenant shall so notify Landlord in writing. Landlord, upon
receipt of such notice from Tenant, shall issue a Certificate of Acceptance
of said premises provided, however, that the issuing of such a Certificate
shall be contingent upon all of the following:
1. The satisfactory completion by Tenant of the work to be performed by
Tenant under this Exhibit D, in accordance with good workmanship and the
approved Construction Documents and Specifications therefor and receipt of a
certificate of occupancy from the local jurisdiction.
2. Receipt by Landlord from Landlord's Architect of a premises
acceptance letter. This letter can be issued only upon Tenant's correction of
the deficiencies noted by Landlord or Landlord's Architect upon any inspection
of Leased Premises.
3. Tenant shall have furnished Landlord with waivers of liens and sworn
statements, or satisfactory substitutes for same, in such form as may be
required by Landlord, and releases of notices of commencement (if any) from all
contractors, subcontractors and other persons performing labor and/or supplying
materials in connection with such work showing that all of said persons have
been compensated in full.
4. Submission by Tenant to Landlord of a detailed breakdown of Tenant's
final and total construction costs together with receipted invoices showing
payment thereof.
Exhibit D, Rough Shell
Page 17 5/1/98
83
5.
Exhibit D, Rough Shell 5/1/98
Page 18
84
--------------------------------------------------------------------------------
SPECIALTY TENANT LEASE EXHIBIT
--------------------------------------------------------------------------------
EXHIBIT E
SIGN CRITERIA
1. Tenant is required to identify the Leased Premises by a sign on the
storefront. The general criteria for the design of Tenant signage ("sign
criteria") is set forth below. More specific sign criteria for The Project
as a whole and certain tenants in certain designated locations such as in
food courts and mall courts is set forth in the Tenant Handbook, (Tenant
Design Criteria) hereinafter referred to as "Tenant Handbook".
2. Costs incurred in design, construction and installation, as well as
maintenance shall be the responsibility of Tenant. The Tenant must obtain
permits to erect and connect the sign from local community officials before
the sign is installed.
3. It is intended that the signage be developed in an imaginative and varied
manner so as to enhance the architectural treatment of the facade in
general and be harmonious with the overall architecture and thematic
consideration of the mall in particular. Although current signage practices
of the Tenant shall be considered, they will not govern the signs to be
installed.
4. Approval of signs shall be solely the right of the Landlord, and Tenant
must submit all candidates for signage to the Landlord for approval in the
form of working drawings before manufacturing or further assembly begins.
Submission shall be to Landlord, in the form of shop drawings with all
pertinent details necessary for construction and installation included.
Submission shall be a minimum of ninety (90) days before proposed
installation date, and Tenant is expected to have sign manufactured and
ready for installation within forty-five (45) days of approval by Landlord
or Landlord's agent before installation, at project site. Landlord reserves
the right to reject signs not conforming to approved drawings regardless of
stage of completion or installation.
5. The Tenant's storefront sign shall occupy an area of the storefront facade
designated in the Tenant Handbook and/or the Lease Outline Drawing, and/or
by the Project Architect. The area shall total no more than eight (8)
square feet for up to a thirty foot (30') storefront; and twelve (12)
square feet for up to a forty foot (40') storefront; sixteen (16) square
feet for up to a fifty foot (50') storefront. The design of the storefront
is to be considered by Tenant in the development of signage. In general,
signs will be installed in the designated sign area above the entry door.
Variation of this criteria shall be subject to Landlord's prior written
approval, which shall be solely at the discretion of Landlord. No sign
shall be installed closer than three feet (3'-0") from the end of the
Tenant storefront on both sides.
6. Signage shall be limited to the name of the store. Additional elements will
be considered as long as they enlarge, expand, or otherwise clarify the
name of the store.
7. Signs which are comprised of unaltered sans serif typefaces are, in
general, unacceptable, as will be signs or type faces which are difficult
to read.
8. The use of corporate identifications or logos will be considered, but prior
use or identification with a particular sign or logo will not govern
Landlord's approval for Tenant use. Tenant agrees that Landlord's rejection
of particular logo or sign shall not constitute a violation of Lease by
Landlord. In the case of conflict between sign criteria and other
provisions of the Lease, Tenant agrees that the sign criteria and
Landlord's discretion shall prevail. Tenant shall not hold Landlord liable
for damage or injury as a result of the sign criteria or the implementation
of the sign criteria by agreement of both parties.
Exhibit E, Sign Criteria 5/1/98
Page 1
85
9. A variety of fabrication materials shall be considered, however,
construction shall be guaranteed for a period of at least five (5)
years against peeling, cracking, crazing, blistering, or any other
degradation of surface or materials. Tenant shall obtain, from
manufacturer of the sign, a five (5) year warranty covering the
condition of finished surfaces, construction and operation of sign.
10. All electrical signs shall carry approval of Underwriters
Laboratories (U.L.) on all component parts and on the complete
display. Maximum brightness of lit signs shall be fifty foot (50')
Lamberts measured one foot (1') from the source of light. No
blinking, moving or flashing lights shall be allowed. Surface
lighting may be reduced in order to accentuate lit signage. There
will be no special advantage in terms of visibility of internally lit
over externally lit signs.
11. No exposed raceways, ballast boxes or electrical transformers will be
permitted except as required to be exposed by local building codes.
12. Landlord shall not be responsible for signs improperly installed or
manufactured, and those signs not meeting the code requirements
shall, at Tenant's expense, be removed and built to code
specifications before installation. Signs meeting the Landlord's sign
criteria, but not meeting local code requirements, shall be the
responsibility of Tenant and Tenant agrees not to hold Landlord
liable for costs due to conflict between these sign criteria and code,
should such conflict exist under present code or due to future
changes in code. Tenant must make required structural modifications
at Tenant's expense to Landlord's structure. Also, Landlord's
engineer to approve structural modifications.
13. Notwithstanding anything herein contained to the contrary, Tenant
shall have the right to replace any existing sign(s) of said Tenant
as long as such replacement meets the sign criteria listed within
this document, the Tenant Handbook, and is accompanied by Landlord's
prior written approval prior to installation.
14. No other signs of any type or purpose, permanent or temporary, shall
be permitted to be displayed upon the facade, windows or within the
dimension prescribed in Section 4.03 of the Lease, behind an
unobstructed window unless and until such sign has been submitted to
Landlord and has received Landlord's prior written approval. Landlord
shall be the sole judge of what constitutes an unobstructed window.
Removal of signage of any type installed without Landlord approval
shall be mandatory before said sign shall be considered by Landlord
for installation.
15. Landlord shall not be required to approve signage for any reason
other than conformance with the sign criteria in this Exhibit E and
Tenant Handbook. Scheduled opening dates and other time constraints
shall not be reason to approve signage which Landlord otherwise would
consider unsuitable for manufacture or installation. Tenant agrees not
to hold Landlord liable for any damage caused to Tenant due to
signage or lack of signage as a result of Landlord's insistence upon
conformance with the sign criteria or the Landlord's withholding of
approval of submitted signage.
16. In the event that Tenant is unable to supply satisfactory signage
design by the fixturing period of Tenant's store, Landlord shall have
the option of providing such design. In such a case, Tenant agrees to
pay prior to store opening all expenses involved in the design,
manufacture, and installation of said signage plus 15% cost of
administration, and Tenant agrees to waive rights to reject said
signage and agrees not to oppose installation of said signage.
17. Signage indicated on drawings and mechanicals submitted for reasons
other than signage evaluation (as described in this Exhibit E and the
Tenant Handbook) shall not constitute a signage submittal. No approval
of such drawings and mechanicals shall constitute approval of signage.
Exhibit E, Sign Criteria 5/1/98
Page 2
86
18. Food Court Tenants shall be permitted to install one menu board within the
Leased Premises subject to Landlord's prior design review and written
approval. Refer to the Tenant Handbook for type, size and location allowed.
19. Procedure for Submittal and Approval of Sign Drawings:
a. Approval of store design drawings or working drawings and
specifications for Tenant's Leased Premises does not constitute
approval of any sign work. Approval of signs shall be solely the right
of Landlord, and Tenant must submit all candidates for signage to the
Landlord for approval in the form of sign designer's working drawings
and/or manufacturer's shop drawings before manufacturing or assembly
begins. Drawings by Tenant, its architect or anyone not qualified to
produce signage drawings are not acceptable. At the same time as
Tenant's initial submission of store working drawings and
specifications to Landlord, Tenant shall submit one (1) set of
reproducible prints and specifications and three (3) sets of blue
prints, along with samples of all material and colors for all its
proposed sign work. The drawings shall clearly show location of sign
on storefront elevation drawing, size and stroke dimensions, graphics,
color, construction, and attachment details. Full information
regarding electrical load requirements and brightness in footcandles
shall also be included. Landlord reserves the right to reject signs
not conforming to approved drawings regardless of state of completion
or installation.
b. As soon as practical after receipt of the sign drawings, Landlord
shall return to Tenant one (1) set of such sign drawings with the
suggested modifications and/or approval. If, upon receipt of approved
sign drawings bearing Landlord's comments, Tenant wishes to take
exception thereto, Tenant may do so in writing, by certified or
registered mail addressed to Landlord within seven (7) days from the
date of Tenant's receipt of such sign drawings. Unless such action is
taken, it will be deemed that all comments made by Landlord on the
sign drawings are acceptable to and approved by Tenant.
c. If sign drawings and specifications are returned to Tenant with
comments, but not bearing approval of Landlord; said drawings and
specifications shall be revised immediately by Tenant and resubmitted
to Landlord for approval within seven (7) days of their receipt by
Tenant.
Exhibit E, Sign Criteria 5/1/98
Page 3
87
EXHIBIT A
(ADD LEASE INFORMATION)
88
EXHIBIT F
COMMENCEMENT AND EXPIRATION DATE DECLARATION
LANDLORD:
---------------------------------------------
TENANT:
---------------------------------------------
LEASE DATE:
---------------------------------------------
STORE NUMBER:
---------------------------------------------
Landlord and Tenant acknowledge and agree that the Commencement Date of the
above referenced Lease is and the Expiration Date of the Lease is
-------- -----.
LANDLORD: TENANT:
By: By:
----------------------------- -----------------------------
Its: Its:
----------------------------- -----------------------------
Date: Date:
----------------------------- -----------------------------
89
EXHIBIT G
WAIVER OF SALES TAX CONFIDENTIALITY
Date:
-------------------
I authorize the Comptroller of Public Accounts to release sales tax information
pertaining to the taxpayer indicated below to Xxxx Xxxxx Limited Partnership,
c/o The Xxxxx Corporation, 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000. I understand that this waiver applies only at our retail store located in
Xxxx Xxxxx in Katy, Texas.
Please print or type the following information as shown below on your Texas
Sales and Use Tax Permit:
--------------------------------------------------------------------------------
Name of Taxpayer Listed on Texas Sales Tax Permit
--------------------------------------------------------------------------------
Name Under Which Taxpayer is Doing Business (d/b/a or Outlet Name)
--------------------------------------------------------------------------------
Taxpayer Mailing Address
--------------------------------------------------------------------------------
Physical Location of Business Permitted for Sales Tax in Katy, Texas
--------------------------------------------------------------------------------
Texas Taxpayer ID Number Tax Outlet Number
(As Shown on Texas Sales Tax Permit)
------------------------------------
Authorized Signature
------------------------------------
Print Name of Authorized Signature
------------------------------------
Position of Authorized Signature
------------------------------------
Phone Number of Authorized Signature
90
EXHIBIT H
AGREEMENT OF SUBORDINATION.
NON-DISTURBANCE AND ATTORNMENT
THIS AGREEMENT is made this 5th day of April, 1999, by and among XXXX XXXXX
LIMITED PARTNERSHIP, a Delaware limited partnership having an office c/o The
Xxxxx Corporation, 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000
("Lessor"), SILICON ENTERTAINMENT, INC., a California corporation, having an
office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("Lessee"), and
BAYERISCHE HYPO-UND VEREINSBANK AG, acting by and through its New York branch,
having offices at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, its successors
and assigns or an affiliate ("Lender"), for itself and as agent for, and as
co-lender with one or more co-lenders.
W I T N E S S E T H:
WHEREAS, Lender is providing financing for the Xxxx Xxxxx shopping center
in Katy, Texas as more fully described on Exhibit A attached hereto and made a
part hereof (the "Property");
WHEREAS, under a certain lease (the "Lease") Lessor did lease, let and
demise a portion of the Property (such portion of the Property is hereinafter
called the "Premises") to Lessee;
WHEREAS, Lender has or will become the owner of an indebtedness secured by,
among other things, a Deed of Trust dated as of March 31, 1999, made by Lessor,
as trustor for the benefit of Lender, as beneficiary (the "Deed of Trust"),
which Deed of Trust was recorded in the public records of the County of Ft.
Bend/Xxxxxx in the State of Texas on April 5, 1999/April 1, 1999 as Instrument
Number 1999626754/7635283, respectively, and an assignment of Lessor's interest
in the Lease for the benefit of Lender ("Assignment of Leases");
NOW, THEREFORE, in consideration of the covenants, terms, conditions and
agreements herein contained, and in consideration of other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Lease and all rights and liens created thereby shall be subject and
subordinate in all respects to the Deed of Trust and the lien created
thereby, to any advancements made thereunder, and to any increases,
extensions, modifications or renewals thereof.
2. So long as Lessee is not in default under the Lease beyond any applicable
grace or cure period, Lender hereby covenants to Lessee that in the event
it obtains title to the Premises, either by foreclosure or by deed in lieu
of foreclosure, and thereafter obtains the right of possession of the
Premises, that the Lease will continue in full force and effect, and Lender
shall recognize the Lease and Lessee's rights thereunder.
3. Lessee agrees that from and after the date hereof in the event of any act
or omission by Lessor under the Lease which would give Lessee the right,
either immediately or after the lapse of a period of time, to terminate the
Lease, or to claim a partial or total eviction, Lessee will not exercise
any such right (a) until it has given written notice of such act or
omission to Lender by certified mail, return receipt requested, and (b)
until and unless Lender fails to remedy such act or omission within thirty
(30) days for any act or omission which can be cured by the payment of
money, or in the case of any other act or omission, as long as necessary to
remedy such act or omission, provided (i) Lender commences such remedy
within thirty (30) days, and (ii) Lender pursues completion of such remedy
with due diligence following such giving of notice and following the time
when Lender shall have become entitled under the Deed of Trust to remedy
the same. It is specifically agreed that Lessee shall not, as to Lender, be
entitled to require cure of any such default which is personal to Lessor,
and therefore not susceptible of cure by Lender, and that no such uncured
default shall entitle Lessee to exercise any rights under the Lease with
respect to Lender.
4. That in the event the interests of Lessor under the Lease shall be
transferred to Lender or any nominee, designee, assignee of Lender or any
purchaser at foreclosure sale (Lender or such other party referred to as a
"Lender Party") by reason of foreclosure, deed in lieu of foreclosure, or
similar transaction, Lessee hereby covenants and agrees to make, for the
benefit and reliance of Lender, full and complete attornment to the Lender
Party as substitute lessor upon the same terms, covenants and conditions as
provided in the Lease, except to the extent otherwise set forth herein.
5. The provisions of this Agreement shall be real covenants running with the
Property, and shall be binding upon and inure to the benefit of the
respective parties hereto and their respective heirs.
91
executors, administrators, beneficiaries, successors and assigns, including
without limitation any Lender Party.
6. Notwithstanding anything contained herein to the contrary, or anything to
the contrary in the Lease, Lender and any Lender Party shall not be:
(a) Liable for any act of omission of Lessor, including without
limitation, any delay in opening the Project or the Premises for occupancy
and any failure to complete the construction of the Premises or the Project
or any improvements therein;
(b) Subject to any offsets, claims or defenses which Lessee might
have as to Lessor;
(c) Required or obligated to credit Lessee with any rent for any
period beyond the then current rental period which Lessee might have paid
Lessor;
(d) Bound by any amendments or modifications or voluntary termination
of the Lease made without Lender's prior written consent, other than
exercise of rights, options or elections contained in the Lease; or
(e) Bound to or liable for refund of any security deposit except to
the extent actually received by Lender or a Lender Party.
7. Lessee shall not, without the express written consent of Agent:
(a) Cancel, terminate or surrender the Lease, except as provided
therein or in any modification or amendment specified herein or hereafter
consented to by Lender;
(b) After the date hereof, enter into any agreement with Lessor or
its successors or assigns, which grants any concession with respect to the
Lease or which materially compromises, discounts or otherwise reduces the
rent called for thereunder; or
(c) After the date hereof, prepay more than one (1) month in advance.
8. Lessor and Lessee hereby jointly and severally agree for the benefit and
reliance of Lender, that neither this Agreement, nor any assignment of the
Lease for collateral purposes, nor anything to the contrary in the
aforesaid Lease or in any modifications or amendments thereto shall, prior
to Lender's acquisition of Lessor's interest in and possession of the
Property (and thereafter, only to the extent of the Property and not
personally), operate to give rise to or create any responsibility or
liability upon Lender for the control, care, management or repair of the
Property or for any waste committed on the Property by any party whatsoever
or for any dangerous or defective condition of the Property; or impose
responsibility for the carrying out by Lender of any of the covenants,
terms and conditions of the Lease or of any modification or amendment
whether or not hereafter consented to by Lender, or for any negligence in
the management, upkeep, repair or control of said Property resulting in
loss, injury or death to any lessee, licensee, invitee, guest, employee,
agent or stranger. Notwithstanding anything to the contrary in the Lease,
Lender, its successors and assigns (and any Lender Party, as appropriate),
shall be responsible for performance of only those covenants and
obligations of the Lease accruing after Lender's, its successors' and
assigns' (or Lender Party's, as appropriate), acquisition of Lessor's
interest in and possession of the Property.
9. Lessee covenants and agrees to make rental payments according to the terms
of such Assignment of Leases upon written demand by Lender in the event of
any default (as described therein). Lessor consents to payments being so
made.
10. Lessee agrees that this Agreement satisfies any condition or requirement in
the Lease relating to the granting of a non-disturbance agreement.
11. Any notices hereunder shall be effective upon mailing by certified mail,
return receipt requested, or delivery by overnight courier addressed to the
recipient at its address set forth in the preambles hereof or as to each
party, to such other address as the party may designate by a notice given
in accordance with the requirements contained herein.
12. This Agreement contains the entire agreement between the parties hereto.
This instrument may be executed in multiple counterparts, all of which
shall be deemed originals and with the same effect as if all parties hereto
had signed the same document. Signature and acknowledgement pages may be
detached from the counterparts and attached to a single copy of this
document to physically form one document.
92
13. If any bankruptcy proceedings shall hereafter commence with respect to
Lessor, and if the Lease is rejected by the trustee in bankruptcy pursuant
to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Lessee agrees with
Lender (i) not to treat such lease as terminated or if the Lease is
terminated by the Trustee, to execute a new lease with Lender or its
designee on the same terms as the Lease, and (ii) to remain in possession
of the Premises.
14. Lessee agrees to execute and deliver from time to time, upon the request
of Lender a certificate regarding the status of the Lease in the form set
forth in Schedule A hereto and made a part hereof.
EXECUTED as of the date first above written.
LESSOR: XXXX XXXXX LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Xxxx Xxxxx, L.L.C., a Delaware limited
liability company
Its: General Partner
By: The Xxxxx Limited Partnership, a Delaware
limited partnership
Its: Manager
By: The Xxxxx Corporation, a Delaware
corporation
Its: General Partner
/s/ XXXXXX XXXXXX
-------------------------------------------------
By: Xxxxxx Xxxxxx
Its: Executive Vice President
LENDER: BAYERISCHE HYPO-UND VEREINSBANK AG, for
itself and as Agent
By: /s/ XXXX X. XXXXXX
---------------------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------------------
Title: Associate Director
-------------------------------------------
By: /s/ XXXXXX X XXXXXXX
----------------------------------------------
Name: Xxxxxx X Xxxxxxx
--------------------------------------------
Title: Director
-------------------------------------------
LESSEE: SILICON ENTERTAINMENT, INC., a California
corporation
By: /s/ XXXXX XXXXX
----------------------------------------------
Name: Xxxxx Xxxxx
--------------------------------------------
Its: Vice President
---------------------------------------------
93
ACKNOWLEDGEMENT OF LANDLORD
COMMONWEALTH OF VIRGINIA )
)ss.
COUNTY OF ARLINGTON )
On this 7th day of March ___, 1999, before me personally appeared XXXXXX
XXXXXX, to me known to be the person who executed the foregoing Agreement of
Subordination, Non-Disturbance and Attornment and acknowledged before me that
she was duly authorized and did execute same on behalf of XXXX XXXXX LIMITED
PARTNERSHIP, a Delaware limited partnership.
/s/ [Signature Illegible]
-------------------------------------
Notary Public
My Commission expires: 2/illegible/02
ACKNOWLEDGEMENT OF CORPORATE TENANT
STATE OF CALIFORNIA )
)ss.
CITY/COUNTY OF SANTA XXXXX )
On March 16, 1999, before me Xxxxxx Xxxxxxx, a Notary Public in and for
said state aforesaid, personally appeared Xxxxx Xxxxx, as Vice President of
SILICON ENTERTAINMENT, INC., a California corporation, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
/s/ XXXXXX XXXXXXX
--------------------------------------
Notary Public, Santa Xxxxx County,
My Commission expires: 9/19/2001
[NOTARY SEAL} [Notarial Seal]
ACKNOWLEDGEMENT OF LENDER
STATE OF NY )
)ss.
COUNTY OF NY )
On this 5th day of April, 1999, before me, Xxxxxxx Xxxxxx, notary public,
personally appeared Xxxx X. Xxxxxx and Larnery X. Xxxxxxx approved to me on the
basis of satisfactory evidence to be the persons whose names are subscribed to
the within instrument and acknowledged to me that they executed the same in
their authorized capacities and that by their signatures on the instrument the
entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXXX XXXXXX
------------------------------------------------
Notary Public
My Commission expires:
-----------------------
[NOTARY STAMP]
94
EXHIBIT H-1
PRE-CONSTRUCTION TENANT ESTOPPEL CERTIFICATE
TO: BAYERISCHE HYPO- UND VEREINSBANK AG, acting by and through its New York
branch, its successors and assigns or an affiliate (referred to herein as
"Lender"), for itself and as agent for one or more co-lenders:
1. The undersigned is the Lessee under that certain Lease together with all
amendments, modifications and supplements thereto, as more fully described
on Schedule A attached hereto, and made a part hereof (collectively, the
"Lease") by and between XXXX XXXXX LIMITED PARTNERSHIP, a Delaware limited
partnership, as Lessor and SILICON ENTERTAINMENT, INC., a California
corporation, as Lessee, covering those certain premises described therein
and located at Xxxx Xxxxx, Katy, Texas ("Premises").
2. Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Lease.
3. Except for any amendments, modifications and supplements described in
Schedule A the Lease has not been modified, changed, altered or amended in
any respect and is the only Lease or agreement between the Lessee and
Lessor or its agents affecting the Premises.
4. Except as provided in the Lease, Lessee has made no agreements with Lessor
or its agents or employees concerning free rent, partial rent, rebate of
rental payments or any other type of rental concession (except as set forth
in the Lease).
5. No rent has been prepaid for more than one (1) month.
6. The Lease is in full force and effect and Lessee has no right to terminate
the Lease (other than by reason of default by Lessor or as otherwise
provided for in the Lease). As of the date hereof, Lessee is entitled to no
credit, no free rent and no offset or deduction in rent, except as set
forth in the Lease.
7. The Lessee and, to Lessee's knowledge, Lessor are not in default under the
Lease and, to the best of Lessee's knowledge, there is no event which with
notice or passage of time would constitute a default by Lessee or Lessor
under the Lease.
8. Lessor has and is under no obligation to Lessee with respect to payment of
the cost of tenant improvement work to the Premises, except as specifically
set forth in the Lease.
9. The Lease does not contain and the Lessee does not have any outstanding
options or rights of first refusal to purchase the Premises or any part
thereof or the real property of which the Premises are a part.
10. No actions, whether voluntary of otherwise, are pending against the Lessee
under the bankruptcy laws of the United States or any state thereof.
11. Any notices sent to Lender or its affiliates shall be sent certified mail,
return receipt requested and addressed to Bayerische Hypo-und Vereinsbank
AG, at its offices at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
This certification is made knowing that Lender relies upon the truth of this
certification in making certain fundings.
Dated as of this 16 day of March, 1999
SILICON ENTERTAINMENT, INC., a California corporation
By: /s/ XXXXX XXXXX
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Its: Vice President
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By: /s/ XXXXX X. XXXXX
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Its: Chairman/CEO
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95
EXHIBIT A
(ADD LEASE INFORMATION)
