LEASE
(JEFFERSON POINTE)
NMA Fort Xxxxx, LLC,
an Illinois limited liability company, as Landlord,
and
a BIAGGI'S RISTORANTE ITALIANO, LLC
an Illinois limited liability company
as Tenant
SUMMARY OF BASIC LEASE INFORMATION
TERMS DESCRIPTION
(References are to the Lease)
1. Date: Effective February 27, 2001
2. Landlord: NMA Fort Xxxxx, LLC, an Illinois
limited liability company
3. Tenant: XXXXXX'S RISTORANTE ITALIANO, LLC, an
Illinois limited liability company
4. Shopping Center That certain shopping center located in Fort
(Article 1). Xxxxx, Indiana tentatively known as
"Jefferson Pointe," as generally depicted
on Exhibit A-1.
5. Premises (Article 1): The Premises consists of the land depicted on
Exhibit A-2 to the Lease, referred to as
Parcel 0 xx Xxxxxxxxx Xxxxx Shopping Center,
together with that certain
building to be constructed thereon by Tenant,
which building shall contain not more than 9500
square feet of space.
6. Lease Term (Article 2).
6.1 Lease Term: Fifteen (15) years, plus any partial month in
which the Lease Commencement Date occurs.
6.2 Lease Commencement The Lease shall be effective when executed by
Date: both of the parties. The term shall commence
six months after the date on which Landlord
tenders possession of the Premises to Tenant,
or the opening of Tenant's restaurant,
whichever is earlier.
6.3 Lease Expiration Date: The last day of the month in which the 15th
anniversary of the Lease Commencement Date
occurs, subject to extension.
6.4 Options to Extend: Four (4) successive options to extend the
Lease Term for five (5) years each.
7. Rent (Article 3).
7.1 Base Rent:
Monthly Installment
Lease Years Annual Base Rent of Base Rent
1-6 $244,000.00 $20,334.00
7-10 $261,080.00 $21,756.67
11-15 $292,812.00 $24,401.00
16-20 (First $322,094.00 $26,842.00
Option
Term)
20- $354,304.00 $29,526.00
25(Second
Option
Term)
26-30(Third $389,735.00 $32,479.00
Option
Term)
31-35(Fourth $428,709.00 $35,726.00
Option
Term)
7.2 Percentage Rent Five percent (5%) of all Gross Sales, as
defined herein, which exceeds the Annual Base
Rent detailed above during each lease year or
partial year (hereinafter referred to as the
"Breakpoint").
8. Tenant's Share of See Article 4 of the Lease.
Joint Maintenance
Common Areas Expenses
and Taxes.
11
9. Use (Article 5):
9.1 Permitted Use Tenant shall construct and operate a full
service restaurant of Tenant's choosing, so
long asTenant's use does not violate the
Outlot ECR, as amended, or otherwise expose
Landlord to any claim arising out of Tenant's use.
9.2 Trade Name Any name which does not result in a
violation of the Outlot ECR.
10. Security Deposit None.
(Article 21):
11. Addresses of Landlord and Tenant (Article 22).
11.1 Address of Tenant: Xxxxxx's Ristorante ltaliano, LLC
000 Xxxxxxxx, Xxxxx X0
Xxxxxx, XX 00000
11.2 Address of Landlord: NMA Fort Xxxxx, LLC
ATTN: Xxxx Xxxxxx
Next Realty, LLC
Xxx Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
12. Broker(s) N/A
13. Landlord Pro-rata $1 ,200,000.00
Contribution
14. Tenant's Contractor Xxxx Companies
iii
TABLE OF CONTENTS
ARTICLE 1
1.1 Premises, Shopping Center and Common Areas 1
(I) The Premises
(ii) The Shopping Center
(iii) Common Areas
(iv) Jefferson's Use and Operation of the Shopping
Center and Common Areas
1.2 Improvement of Premises 2
ARTICLE 2 2
2. Lease Term 2
2.1 Initial Term 2
2.2 Options to Extend 3
ARTICLE 3 3
3. Base Rent/Rent Escalations and Percentage Rent 3
3.1 "Base Rent." 4
3.2 Rent Escalation 4
3.3 "Percentage Rent." 4
3.4 Gross Sales 4
ARTICLE 4 6
ADDITIONAL RENT 6
4. General Terms 6
4.1 General Terms; "Net" Lease 6
4.2 Definitions of Key Terms Relating to Additional
Rent 7
4.3 Calculation and Payment of Additional Rent 7
4.4 Calculation and Payment of Taxes 8
4.5 Personal Property Taxes 8
4.6 Right to Contest 8
4.7 Marketing Fund; Merchants Association 8
ARTICLE 5 9
5. Use of Premises; Opening for Business
Covenant and Landlord's Recapture Right
5.1 Permitted Use 9
5.2 Duties and Quality Standards; Prohibited Conduct 9
5.3 Opening for Business and Operation Covenants and
Landlord's Recapture Right 11
5.4 Radius Restriction 11
iv
ARTICLE 6
6. Services and Utilities 11
6.1 Cleaning and Maintenance 11
6.2 Utilities 12
6.3 Interruption of Utilities 12
ARTICLE 7 12
7. Repairs 12
7.1 Tenant Repairs 12
ARTICLE 8
8.1 Alterations 12
8.2 Manner of Construction 13
8.3 Construction Insurance 13
8.4 Landlord's Property 13
ARTICLE 9 13
9. Covenant Against Liens 13
ARTICLE 10 14
10. Insurance 14
10.1 Indemnification 14
10.2 Tenant's Insurance 15
10.3 Form of Policies 16
10.4 Subrogation 16
10.5 Additional Insurance Obligations 17
ARTICLE 11 17
11. Damage and Destruction 17
11.1 Repairs and Restoration 17
11.2 Destruction During Last Two Years of Lease Term 18
ARTICLE 12 18
12. Non-waiver 18
ARTICLE 13 19
13. Condemnation 19
13.1 Permanent Taking 19
ARTICLE 14 19
14. Assignment and Subletting 19
V
14.1 Transfers 19
14.2 Landlord's Consent 20
14.3 Effect of Transfer 21
14.4 Additional Transfers 21
14.5 Permitted Transfers 21
ARTICLE 15 22
15. Surrender of Premises; Ownership and Removal of
Trade Fixtures 22
15.1 Surrender of Premises 22
15.2 Removal of Tenant Property by Tenant 22
15.3 Landlord's Lien Waiver 22
ARTICLE 16 23
16. HOLDING OVER 23
ARTICLE 17 23
17. ESTOPPEL CERTIFICATES 23
ARTICLE 18 24
18. SUBORDINATION 24
ARTICLE 19 24
19. Defaults; Remedies 24
19.1 Events of Default by Tenant 24
19.2 Landlord's Remedies Upon Default by Tenant 25
19.3 Efforts to Relet 26
19.4 Landlord Default 26
19.5 Consequential Damages 27
ARTICLE 20 27
20. Leasehold Mortgages 27
20.1 Right to Encumber 27
20.2 Landlord's Forbearance 27
20.3 New Lease 28
20.4 Assignment 28
ARTICLE 21 29
INSPECTION AND DELIVERY OF PREMISES 29
21.1 29
21.2 Conditions to Tenant's Obligations 29
21.3 Delivery 29
ARTICLE 22 29
22. Notices 29
ARTICLE 23 30
23. Development of the Shopping Center 30
vi
ARTICLE 24 31
24. Brokers 31
ARTICLE 25 31
25. Late Charges 31
ARTICLE 26 32
26. Xxxxxxxx's Right to Cure Default; Payments by Tenant 32
26.1 Landlord's Right to Self Help 32
26.2 Tenant's Reimbursement 32
ARTICLE 27 32
27. Entry by Landlord 32
ARTICLE 28 33
28. Parking 33
ARTICLE 29 33
29. Miscellaneous Provisions 33
29.1 Terms 33
29.2 Binding Effect 33
29.3 Transfer of Landlord's Interest 33
29.4 Memorandum of Lease 34
29.5 Captions 34
29.6 Relationship of Parties 34
29.7 Shopping Center Name and Signage 34
29.8 Time of Essence 34
29.9 Partial Invalidity 34
29.10 Financial Statements 34
29.11 Entire Agreement 35
29.12 Force Majeure 35
29.13 Joint and Several 36
29.14 Authority 36
29.15 Governing Law 36
29.16 Submission of Lease 36
29.17 Landlord and Tenant Liability 36
29.18 Covenant of Quiet Enjoyment 36
29.19 Gross Sales Records 36
29.20 Inspections 37
29.21 Gift Certificate Program 37
29.22 Construction Agreement 37
29.23 Independent Covenants 37
29.24 First Right of Offer 37
29.25 Landlord's Pro-rata Contribution 38
Vii
LEASE
(JEFFERSON POINTE)
This Lease, which includes the preceding Summary of Basic
Lease Information (the "Summary") attached hereto and
incorporated herein by this reference (the Lease and Summary are
collectively referred to herein as the "Lease"), dated as of the
date set forth in Section 1 of the Summary, is made by and
between NMA Fort Xxxxx, LLC, an Illinois limited liability
company ("Landlord"), and XXXXXX'S RISTORANTE ITAEIANO, XXX an
Illinois limited liability company ("Tenant"). In the event of a
conflict between the terms of the Summary and the terms of this
Lease, the terms of this Lease shall prevail.
ARTICLE I
1.1 PREMISES, SHOPPING CENTER AND COMMON AREAS
(i) THE PREMISES. Upon and subject to the terms hereinafter
set forth in this Lease and contingent upon Landlord
acquiring title to the Premises, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord the premises
generally described in Section 5 of the Summary (the
"Premises"), which Premises shall consist of a restaurant
building ("Building") and appurtenant improvements to be
constructed by Tenant thereon, at Tenant's sole cost, in
accordance with the Work Letter described below together
with Xxxxxxxx's non-exclusive easement rights over the
Common Areas described below, for parking, access,
utilities, drainage and encroachments as more particularly
set forth in the Outlot ECR referred to at Article 5 of
this Lease and the Von Maur REA. The outline of the
Premises is generally depicted in Exhibit A-2 attached
hereto.
(ii)THE SHOPPING CENTER. The Premises are located within
the Shopping Center described in Section 4 of the Summary,
the tentative configuration of which is generally depicted
on Exhibit A-i attached hereto. The Shopping Center is
being developed by Jefferson Pointe Development of Fort
Xxxxx, LLC, a Delaware limited liability company
("Jefferson").
(iii) COMMON AREAS. Tenant shall have Landlord's non-
exclusive right to use in common with other tenants in the
Shopping Center, and subject to the Rules and Regulations
and the Outlot ECR referred to in Article 5 of this Lease,
those portions of the Shopping Center which are provided,
from time to time, for use in common by Jefferson, Tenant
and any other tenants of the Shopping Center, whether or
not those areas are open to the general public (such areas,
together with such other portions of the Shopping Center
reasonably designated by Xxxxxxxxx are collectively
referred to herein as the "Common Areas"). The general
location of the Common Areas of the Shopping Center are
shown on Exhibit A-I attached to this Lease.
(iv) JEFFERSON'S USE AND OPERATION OF THE SHOPPING CENTER
AND COMMON AREAS. Tenant agrees that Xxxxxxxxx may from
time to time without notice to
Tenant, (a) close temporarily any of the Common Areas in
connection with the performance by Jefferson of its repair
and maintenance obligations or to prevent the acquisition
of prescriptive rights; (b) make changes to the Common
Areas, including, without limitation, changes in the
location, size, shape and number of street entrances,
driveways, ramps, entrances, exits, passages, stairways and
other ingress and egress, direction of traffic, landscaped
areas, loading and unloading areas, and walkways; (C) add
additional buildings and improvements to the Common Areas
and Shopping Center; (d) designate land outside the
Shopping Center to be part of the Shopping Center, and in
connection with the improvement of such land to add
additional buildings and Common Areas to the Shopping
Center; (e) use the Common Areas while engaged in making
additional improvements, repairs or alterations to the
Shopping Center or to any adjacent land, or any portion
thereof; and (f) do and perform such other acts and make
such other changes in, to or with respect to the Shopping
Center and Common Areas or the expansion thereof as
Jefferson may, in the exercise of sound business judgment,
reasonably deem to be appropriate. Landlord will cooperate
with Tenant to enforce the Covenants and other provisions
of the Outlot ECR to minimize the disruption or
inconvenience to Tenant as a result of any of the
aforementioned actions undertaken by Xxxxxxxxx. This
cooperation may include, but is not necessarily limited to,
assigning to Tenant a cause of action which Landlord may
have against Xxxxxxxxx as a result of the aforementioned
actions.
1.2 IMPROVEMENT OF PREMISES. The Premises shall be
constructed in accordance with the Work Letter Agreement attached
hereto as Exhibit D ("Work Letter"). Tenant will be responsible
for the construction of the Building and all other work required
by Tenant or necessary to complete the Premises for occupancy
("Tenant's Work"). All such work by Tenant shall be designed,
approved, performed, and completed in compliance with the
provisions of the Work Letter and this Lease. Except as
specifically set forth in this Lease (including the Work Letter),
Landlord shall not be obligated to provide for or pay for any
improvement work or services related to the improvement of the
Premises. Xxxxxx also acknowledges that Landlord has made no
representations or warranties regarding the condition of the
Premises or the Shopping Center except as expressly set forth in
this Lease (including the Work Letter).
ARTICLE 2
2. LEASE TERM.
2.1 INITIAL TERM. The terms and provisions of this Lease
shall be effective as of the date of this Lease. The term of this
Lease shall be as set forth in Section 6.1 of the Summary, shall
commence on the earlier of the dates set forth in Section 6.2 of
the Summary (the "Lease Commencement Date"), and shall terminate
on the date set forth in Section 6.3 of the Summary (the "Lease
Expiration Date"), unless this Lease is sooner terminated as
hereinafter provided. Promptly after the commencement of the
Lease Term,
2
Landlord and Tenant shall execute the Confirmation of Lease Term
Dates substantially in the form attached hereto as Exhibit B,
confirming the Lease Commencement Date and Lease Expiration Date.
2.2 OPTIONS TO EXTEND. Landlord hereby grants to Tenant
(individually, "Extension Option" and collectively, "Extension
Options") four (4) -successive options to extend the Lease Term
for a period of five (5) years each (individually, "Option Term"
and collectively, "Option Terms"). Each Extension Option must be
exercised, if at all, by written notice ("Option Notice")
delivered by Tenant to Landlord not less than one-hundred twenty
(120) days nor more than three hundred sixty (360) days prior to
the end of the initial Lease Term or the then existing Option
Term, as the case may be ("Exercise Window"). Notwithstanding the
foregoing, Tenant shall not be deemed to have waived its right to
exercise an Extension Option unless Tenant fails to deliver such
Option Notice within fifteen (15) days after Landlord's delivery
to Tenant of written notice notifying Tenant that Landlord failed
to receive such Option Notice during the applicable Exercise
Window. Further, the Extension Options shall, at Landlord's
election, become null and void and of no further force and effect
if Tenant is in monetary default or material non-monetary default
after applicable notice and expiration of cure periods under this
Lease at the time Tenant attempts to exercise such Extension
Option or, following such exercise, prior to the commencement of
the applicable Option Term. Provided Tenant has properly and
timely exercised the applicable Extension Option, the Lease Term
shall be extended for the period specified above, and all terms,
covenants and conditions of the Lease shall remain unmodified and
in full force and effect except that Base Rent (as defined in
Article 3 below) payable by Tenant during each Option Term shall
be adjusted as set forth in Section 7 of the Summary. The term of
this Lease, as may be extended by any Option Term, is hereinafter
collectively referred to as the "Lease Term."
ARTICLE 3
3. BASE RENT/RENT ESCALATIONS AND PERCENTAGE RENT. The Base
Rent as described herein shall be payable monthly, in advance, on
the first day of each successive month commencing on the
Commencement Date. Any and all Percentage Rent required to be
paid pursuant to this Lease shall be due and payable at the close
of each Lease Year
following the first Lease Year in which Tenant's Gross Sales for
such Lease Year exceeds the applicable Breakpoint (prorated for
partial years), or within fifteen (15) days thereafter. The
Tenant shall pay as Additional Rent, within fifteen (15) days of
its due date as estimated hereinafter or demand for payment if
made by Landlord, all other sums of money or charges required to
be paid by Tenant under this Lease whether or not the same shall
be designated as "Additional Rent." All sums required to be paid
pursuant to this Lease shall be deemed to be "rent" and the
obligation to pay such sums shall be independent of any
obligations required to be kept by Landlord pursuant to this
Lease. Payment of rent shall be made without any right of set
off, counter claim or deduction whatsoever ~except as may be
permitted elsewhere in this Lease]. Tenant shall pay, without
prior notice or
3
demand, to Landlord in currency or a check for currency which, at
the time of payment, is legal tender for private or public debts
in the United States of America.
3.1 "BASE RENT." As set forth in Section 7 of the Summary,
payable in equal monthly installments in advance on or before the
first day of each and every month during the Lease Term, without
any setoff or deduction whatsoever. The Base Rent for the first
full month of the Lease Term shall be paid on or before the Lease
Commencement Date, as defined in Section 6.2 of the Summary. If
any Rent payment date (including the Lease Commencement Date)
falls on a day of the month other than the first day of such
month or if any payment of Rent is for a period which is shorter
than one month, the Rent for any fractional month shall accrue on
a daily basis for the period from the date such payment is due to
the end of such calendar month orto the end of the Lease Term at
a rate per day which is equal to 1/365 of the applicable annual
Rent. All other payments or adjustments required to be made under
the terms of this Lease that require proration on a time basis
shall be prorated on the same basis.
3.2 RENT ESCALATION. Base Rent for years subsequent to the
first six (6) Lease Years shall be increased as set forth in
Section 7 of the Summary and incorporated herein by reference.
3.3 "PERCENTAGE RENT." A sum of money equal to the
Percentage Rent percentage of all Gross Sales of the Tenant
computed for each Lease Year in excess of the Breakpoint as set
forth in Section 7 of the Summary and incorporated herein by
reference. For example, if the percentage rent rate is five
percent (5%), the annual Base Rent is $244,000, and the Gross
Sales are $5,000,000, then the Percentage Rent owed for the year
would be $6,000: $5,000,000 Gross Sales multiplied by 5% (which
equals $250,000) minus $244,000 (the annual Base Rent). The
Breakpoint shall be prorated for partial years for years
containing more or less than twelve months.
(12)
3.4 GROSS SALES. If any portion of Tenant's rental or other
obligations to Landlord or other parties is based upon or
determined by reference to the term "Gross Sales" then that term
shall mean and include the total of the full sales price to the
customer of all sales of merchandise, rental of equipment and/or
charges for services for which a charge is made and all business
(including but not limited to all sales by telephone or mail,
internet sales where the purchase is made and paid for from
terminals on the Premises, vending machines, all other
merchandising dispensing equipment and receipts from pay
telephones) transacted in, upon orfrom the Premises by Tenant,
its subtenants, licensees, contractors, franchisees or any other
occupants of the Premises, including all sales made from cash or
upon credit, or partially for cash and partially upon credit and
upon any other money transfer procedure accomplished by
electronic transfer or similar method, or by barter or exchange,
regardless of collection of charges for which credit is given and
all sales, charges or unreturned deposits for services and
business transacted for which orders are taken in, upon or from
the Premises regardless of whether or not the
4
merchandise sold is delivered wholly or in part, the services are
rendered or the business is transacted in, upon or from the
Premises. Each sale, charge or business transacted
upon installments or contracts thereof shall be treated as a
gross sale for the full price or charge to the customer in the
month in which such sale, charge or contact shall be made. Gross
Sales shall not include:
any sales tax levied upon such sales or charges,
including, the amount of any city, county, state
or federal sales, use, luxury or excise tax on
such sales which is both added to the selling
price (or absorbed therein) and paid to the
taxing authorities by Xxxxxx;
ii. interstore transfers of merchandise;
xxx.xxxx or credit refunds;
iv. returns to suppliers or manufacturers~
v. any penalty charged by Xxxxxx for a returned
check;
vi. reimbursement of amounts for postage, express or
delivery services, including, but not limited,
United Parcel Service, incurred in delivering
merchandise to customers, provided that such
charges are at all times properly segregated from
amounts includable in Gross Sales and so
identified on Xxxxxx's records;
vii. any sale at a discount to a bona fide employee of
Tenant or of a licensee or concessionaire of
Tenant, to the extent that such sales do not
exceed two percent (2%) of the total Gross Sales
in any Lease Year;
viii.receipts from vending machines or pay
telephones;
ix. any charge added by Tenant to its regular cash
price as a finance charge for sales on credit,
provided that such charge is at all times
properly segregated from amounts includable in
Gross Sales and so identified on Tenant's
records. Each transaction involving the extension
of credit shall be treated as a sale for the
regular cash price in the month in which such
transaction occurred, without regard to the time
payment is made or title passes;
x. any charges paid to the issuer of credit cards
and for check authorization fees;
5
xi. any sale of fixtures or equipment not in the
regular course of Tenant's business or after use
thereof;
xii. gift certificates, or like vouchers, until such
time as the same have been converted into a sale
by redemption at the Premises;
xiii.catalog sales where the payment for the item
purchased does not occur at the Premises;
xiv. layaway sales until the merchandise is delivered
to the customer at the Premises;
xv. the amount of any special discount to customers
for damaged or defective merchandise;
xvi. bad debt expense with respect to merchandise sold
on credit or purchased by check; and
xvii.charges collected from customers for fitting and
alterations.
ARTICLE 4
ADDITIONAL RENT
4. GENERAL TERMS.
4.1 GENERAL TERMS; "NET" LEASE. As set forth in this
Article 4, in addition to
paying the Base Rent and Percentage Rent specified in Article 3
of this Lease, Tenant shall pay Landlord's share of the Joint
Maintenance Common Areas Expenses (as defined in the Outlot ECR),
as set forth herein below, and Taxes, as hereinafter defined.
Such payments by Xxxxxx, together with any and all other amounts
payable by Tenant to Landlord pursuant to the terms of this
Lease, are hereinafter collectively referred to as the
"Additional Rent", and Base Rent, Percentage Rent and the
Additional Rent are sometimes herein collectively referred to as
"Rent." All amounts due under this Article 4 as Additional Rent
shall be payable for the same periods and in the same manner as
the Base Rent and Percentage Rent. Except as otherwise expressly
provided in this Lease to the contrary, if Base Rent is abated
during the Lease Term, no such abatement shall apply to Tenant's
obligation to pay Additional Rent. Subject to Article 19, without
limitation on other obligations of Tenant which survive the
expiration of the Lease Term, the obligations of Tenant to pay
Rent which accrues during the Lease Term shall survive the
expiration of the Lease Term. Landlord and Xxxxxx acknowledge
that, except as otherwise provided to the contrary in this Lease,
it is their intent and agreement that this Lease be a "Triple
Net" lease and that as such, the provisions contained in this
Lease are intended to pass on to Tenant or reimburse Landlord for
all costs and expenses reasonably associated with
6
this Lease and the Premises, and Xxxxxx's operation therefrom. To
the extent such costs and expenses payable by Tenant cannot be
charged directly to, and paid by, Tenant, such costs and expenses
shall be paid by Landlord but reimbursed by Xxxxxx, including
Xxxxxx's obligation to pay Tenant's share of Joint Maintenance
Common Areas Expenses, as more particularly described in the
Outlot ECR.
4.2 Definitions of Key Terms Relating to Additional Rent.
As used in this Article 4, the following terms shall have the
meanings hereinafter set forth:
(i) "Expense Year" shall mean each calendar year in
which any portion of the Lease Term falls, through and
including the calendar year in which the Lease Term
expires, with any partial year being prorated.
(ii)"Joint Maintenance Common Areas Expenses" shall
have the meaning set forth in the Outlot ECR.
(iii) "Taxes" shall mean any form of real estate
tax, assessment (both general and special), license fee,
license tax, tax on rent (enacted in lieu of a real estate
tax), together with any statutory interest thereon, imposed
or required at any time by any federal, state, county or
city authority having jurisdiction, or any political
subdivision thereof, or any school, agricultural, lighting,
drainage or other improvement or special assessment
district thereof (hereinafter individually and collectively
referred to as "Governmental Agencies"), on the Premises,
including, without limitation: (a) any impositions by
Governmental Agencies (whether or not such impositions
constitute tax receipts) or any other payments to
Governmental Agencies (whether involuntarily imposed by any
such Governmental Agencies or voluntarily agreed to by
Landlord) in substitution, partially or totally, of any
impositions now or previously included within the
definition of real property taxes, it being acknowledged
that Taxes shall include any governmental or private
assessments or the Shopping Center's contribution towards a
governmental or private cost/sharing agreement for the
purpose of augmenting or improving the quality of services
and amenities normally provided by governmental agencies;
(b) any and all reasonable costs (including, without
limitation, the fees of experts, tax consultants and
attorneys) incurred by Landlord should Landlord reasonably
elect to negotiate or contest the amount of said Taxes in
formal or informal proceedings before the taxing
Governmental Agency; provided, however, Taxes shall in no
event include Landlord's conveyance, income, profits,
corporation, franchise, inheritance, estate, succession or
gift taxes.
4.3 CALCULATION AND PAYMENTOF ADDITIONAL RENT. Tenant shall
pay to Landlord or, at Landlord's direction, directly to
Xxxxxxxxx, as Additional Rent, an amount equal to the Landlord's
share of Joint Maintenance Common Areas Expenses ("JMCA
Expenses") as set forth in the Outlot ECR (which is currently
computed by multiplying the JMCA
7
Expenses, as defined in the Outlot ECR, including a management
fee of fifteen percent of such costs by 1.95%) which payment
shall be remitted on or before the due date for such payment.
4.4 CALCULATION AND PAYMENT OF TAXES. In addition to
Tenant's Share of Joint Maintenance Common Areas Expenses,
commencing on the Lease Commencement Date and continuing until
the end of the Lease Term, Tenant shall pay to Landlord the
amount of all Taxes assessed for any reason and levied on the
Premises and the realty underlying the Premises.
4.5 PERSONAL PROPERTY TAXES. Tenant shall pay before
delinquency all taxes (including sales and use taxes),
assessments, license fees and public charges levied, assessed or
imposed upon its business operation as well as upon its
merchandise, inventory, furniture, fixtures, equipment and other
personal property.
4.6 RIGHT TO CONTEST. Tenant shall have the right to
reasonably contest the amount or validity of any Taxes payable
with respect to the Premises (excluding any Taxes payable with
respect to the Common Areas), in whole or in part, by appropriate
administrative and legal proceedings, either in its own name,
Xxxxxxxx's name or jointly with Landlord, without any cost or
expense to Landlord (and Tenant hereby agrees to indemnify and
hold Landlord harmless from any and all cost, liabilities, claims
or expenses in connection with any such contest), and Tenant may
postpone payment of any such contested Taxes pending the
prosecution of such proceedings and any appeals so long as such
proceedings shall operate to prevent the collection of such taxes
(and any fines or penalties) and the sale of the Premises to
satisfy any lien arising out of the nonpayment of the same, and
Tenant, upon the reasonable request of Landlord, shall furnish a
bond to the Landlord sufficient to secure the payment of all
contested Taxes in those instances where posting a bond is an
alternative for paying the taxes, costs and expenses in
connection therewith as a pre-condition to undertaking any such
contest. In lieu of such bond, Tenant may elect to pay such Taxes
under protest. Landlord shall execute and deliver to the Tenant
whatever documents may be reasonably necessary or proper to
permit Tenant to so contest any such Taxes or which may be
necessary to secure payment of any refund (with respect to a tax
year or portion thereof during the Term of this Lease) which may
result from any such proceedings.
4.7 MARKETING FUND; MERCHANTS ASSOCIATION. Tenant
acknowledges that Xxxxxxxxx shall be entitled to establish a fund
("Marketing Fund") for the Shopping Center, in which case Tenant
agrees to pay to Landlord, or to Xxxxxxxxx if so directed by
Xxxxxxxx, as Additional Rent, upon demand, a charge payable as
detailed in the Outlot ECR (ie: not to exceed $2,500 per year
subject to annual increases in the OPt Index not to exceed 3% per
annum).
8
ARTICLE 5
5. Use of Premises; Opening for Business Covenant and
Landlord's Recapture Right.
5.1 PERMITTED USE. Tenant shall use the Premises for the
Permitted Use set forth in Section 9 of the Summary and in a
manner consistent with the character of the Shopping Center as a
first-class Shopping Center, and Tenant shall not use or permit
the Premises to be used for any other purpose or purposes.
Landlord shall not unreasonably withhold its consent to a change
in Tenant's Permitted Use. The parties agree that it shall be
reasonable under this Lease and under any applicable law for
Landlord to withhold its consent to any proposed use wherein one
or more of the following apply: (a) in Landlord's
reasonable judgment, or the judgment of Xxxxxxxxx, the proposed
change in use is not a
use consistent with the character of the Shopping Center as a
first-class Shopping Center; or (b) the proposed use is not
permitted by the Outlot ECR or would give an occupant of the
Shopping Center or Jefferson a right to bring an action against
Landlord.
5.2 DUTIES AND QUALITY STANDARDS; PROHIBITED CONDUCT.
(i) Compliance with Rules and Regulations, Laws and
Outlot ECR. Tenant further covenants and agrees that Tenant
shall not use, or suffer or permit any of its officers,
employees, agents, servants or contractors to use, and
shall use its reasonable efforts not to permit its
customers to use, the Premises or Common Areas or any part
thereof for any use or purpose contrary to the provisions
of the Rules and Regulations attached to the Outlot ECR, or
any other rules and regulations reasonably promulgated by
Xxxxxxxxx or Landlord in connection with Tenant's use of
the Premises for the Permitted Use (collectively, "Rules
and Regulations") or in violation of the laws of the United
States of America, the State of Indiana, or the ordinances,
regulations or requirements of the local municipal or
county governing body or other lawful authorities having
jurisdiction over the Shopping Center and all covenants,
conditions, and restrictions relating to the Shopping
Center including, but not limited to, that certain
Declaration of Reciprocal Easements, Covenants and
Restrictions Agreement to be recorded against the Shopping
Center and any amendments or modifications thereto
(collectively, the "Outlot ECR"). Landlord covenants to
cooperate with Tenant in all reasonable attempts by Tenant
to ensure that the Rules and Regulations are not modified
or enforced by Xxxxxxxxx so as to materially and adversely
interfere with Xxxxxx's use of the Premises, or
discriminatively enforced against Tenant. Further, except
as otherwise provided herein, Tenant shall be obligated
(and shall be responsible) for complying with any Legal
Requirements which pertain to Tenant's use and occupancy of
the Premises, whether such Legal Requirements are
structural or nonstructural in nature. The term "Legal
Requirements" means all applicable current or future
statutes, ordinances, orders, rules, regulations, judgments
and
9
requirements of public authorities with jurisdiction and all
applicable requirements of Landlord's insurance carriers relating
to the Premises (to the extent made known to the party
responsible for complying therewith).
(ii)PROHIBITED CONDUCT. Tenant shall not use or allow
another person or entity to use any part of the Premises for the
storage, use, treatment, manufacture or sale of Hazardous
Material, as that term is defined below. Landlord acknowledges,
however, that Tenant will maintain products in the Premises which
are incidental to the operation and maintenance of its Premises
(such as janitorial supplies), which products contain chemicals
which are categorized as Hazardous Materials. Landlord agrees
that the use of such products in the Premises in compliance with
all laws and in the manner which such products are designed to be
used shall not be a violation by Tenant of this Section 5.2.2. As
used herein, Hazardous Material means any hazardous or toxic
substances, materials or waste, pollutants or contaminants, as
defined, listed or regulated by any federal, state or local law,
regulation or order or by common law decision, including, without
limitation, (a) trichloroethylene, tetrachloroethylene,
perchloroethylene and other chlorinated solvents, (b) petroleum
products or by-products, (c) asbestos and (d) polychlorinated
biphenyls. To the best of Xxxxxxxx's knowledge, there are no
Hazardous Materials present on the Premises. Tenant shall not
cause, maintain or permit any nuisance in, on or about the
Premises, nor shall Tenant commit or suffer to be committed any
waste in or upon the Premises. Tenant shall not conduct or
advertise on or from or pertaining to the Premises any auction or
closing-out wholesale business. Tenant shall not place or keep
any tables (other than as used for outdoor seating in an area not
to exceed three hundred (300) square feet and which shall in all
respects be approved by Landlord and maintained by Tenant),
(hereinafter the "Outdoor Seating Area"), merchandise or other
items in the Common Areas and shall not be permitted to use any
area outside of the Premises for any portion of Tenant's business
operations, other than an Outdoor Seating Area. Tenant, or
Tenant's employees and agents, shall not solicit business in the
Common Areas and shall not distribute any handbills or other
advertising matter therein.
(iii) Signs; Merchandising and Advertising. Subject to any
required governmental approvals, Tenant shall be permitted
certain Building and exterior identification signage with respect
to the Premises which shall be designed and installed, at
Tenant's sole cost and expense, in compliance with the Signage
Criteria for the Shopping Center. Tenant shall submit to Landlord
and Xxxxxxxxx, plans and specifications with respect to such
Building and exterior signage concurrently with Tenant's
submittal to Landlord of the Preliminary Plans described in the
Work Letter. All such signage shall be furnished, maintained, and
removed at the expiration of the Lease Term (with all damage
caused by such removal to be repaired by Tenant), at Tenant's
sole cost and expense. Xxxxxx's right to the signage described
above is personal to Tenant and may not be assigned or
transferred to, or utilized by, any other person or entity,
except an assignee of Tenant permitted under Article 14 below.
10
5.3 OPENING FOR BUSINESS AND OPERATION COVENANTS AND
LANDLORD'S RECAPTURE RIGHT. Tenant covenants and agrees that
Tenant shall (i) initially open for business to the public under
the Trade Name set forth in Section 9 of the Summary on or before
six (6) months from the date Landlord tenders possession of the
Premises to Tenant and (ii) from and after such initial opening,
continuously and uninterruptedly keep the Premises so open for
business for no less than three (3) years under the Permitted Use
and Trade Name, subject to interruption of business actually
caused by casualty or condemnation or a reasonable period for
periodic remodeling, repairs or maintenance. Tenant's required
operating hours shall be, ata minimum, seven days perweek
(excluding national holidays) from 5:00 p.m. until 10:00 p.m. In
no event shall Tenant be open for business earlier than 9:00 a.m.
or after 1:00 a.m. without the prior written consent of Landlord
which consent shall not be unreasonably withheld. In the event
Tenant Ceases to Operate (as defined below) or abandons the
Premises, Landlord shall have the right, in addition to its other
rights and remedies available at law or equity, to terminate this
Lease. For purposes of this Section 5.3, "Ceases to Operate"
shall mean a failure of Tenant to be open to the public for
business for the Permitted Use at least during all hours of all
days on which Xxxxxxxxx reasonably elects to open the Shopping
Center for business to the public, for a period of thirty (30)
days, except while the Premises are untenable by reason of
alterations, remodeling by Tenant or its assignee, casualty or
condemnation and Tenant is performing its restoration obligations
in accordance with this Lease.
5.4 RADIUS RESTRICTION. Tenant covenants and warrants that
it will not, during the Lease Term, directly or indirectly,
operate or own any business with the same name, menu or operating
characteristics, within a radius of five (5) air miles of any
portion of the Shopping Center (measured on a straight-line
basis).
ARTICLE 6
6. SERVICES AND UTILITIES.
6.1 CLEANING AND MAINTENANCE. During the Term, Tenant
shall, at its own expense, keep the entire Premises, all signage
on or with respect to the Premises, all sidewalks and walkways
adjacent thereto (and any landscaping located within such
sidewalks and walkways) and any loading docks and trash areas
used by Tenant or serving the Premises, in first class condition,
including, but not limited to, removal of debris and garbage from
the Premises and such loading docks, cleaning of the exterior
portions of the Premises and all windows, window frames and doors
of the Premises. Tenant shall
11
separately contract at its sole cost and expense for janitorial
services with a reputable janitorial contractor in accordance
with the maintenance standards set forth in this Lease.
6.2 UTILITIES. From and after the date of this Lease,
Tenant shall provide in the Premises at its own expense, heat,
ventilation, air conditioning, water, gas, electricity, steam and
other utilities. All such utilities shall be separately metered
at Tenant's sole cost
and expense and Tenant shall make payment directly to the
entities providing such utilities and services. Landlord shall
deliver the Premises with an electrical power line, water line,
sanitary sewer line, natural gas line, cable TV line, telephone,
and storm sewer utilities, in sufficient capacity and quantities
that will permit Tenant to construct and operate its restaurant
without incurring extraordinary construction costs or fees or
assessments beyond tap-in fees, to locations within five (5) feet
of the property line of the Premises.
6.3 INTERRUPTION OF UTILITIES. Tenant agrees that Landlord
shall not be liable for damages, by abatement of Rent or
otherwise, for failure, delay, diminution or interruption of any
utilities or services for any reason other than Landlord's gross
negligence or intentional misconduct and such failure, delay,
diminution or interruption shall not be deemed to constitute an
eviction or disturbance of Tenant's use and possession of the
Premises or relieve Tenant from paying Rent or performing any of
its obligations under this Lease.
ARTICLE 7
7. REPAIRS.
7.1 TENANT REPAIRS. Tenant shall, at its sole cost and
expense, maintain and
repair the entire Premises in first class condition including,
but not limited to, all electrical, mechanical, and plumbing
systems, the roof, foundation, windows, doors, glass, HVAC,
parking lot, and landscaping. Tenant waives and releases any
rights it may have under Indiana law or otherwise to make any
repairs at Landlord's expense. Landlord shall have no obligation
to maintain or repair all or any part of the Premises.
ARTICLE 8
8. ADDITIONS AND ALTERATIONS.
8.1 ALTERATIONS. Tenant may not make any structural or
exterior improvements,
alterations, additions or changes (collectively, the
"Alterations") to the Premises without first procuring the prior
written consent of Landlord to such Alterations, which consent
shall be requested by Tenant not less than thirty (30) days prior
to the commencement thereof, and which consent shall not be
unreasonably withheld by Landlord; provided, however, that
12
Tenant may, at Tenant's sole cost and expense, make interior
Alterations to the Premises which do not cost in excess of
$100,000. The initial construction of the Premises shall be
governed by the terms of the Work Letter and not the terms of
this Article 8.
8.2 MANNER OF CONSTRUCTION. Tenant shall construct such
Alterations and perform all repairs in conformance with any and
all applicable federal, state, county or municipal laws, rules
and regulations and pursuant to, if required, a valid building
permit, issued by the City of Fort Xxxxx, all in conformance with
any reasonable construction rules and regulations Landlord may
impose. All work with respect to any Alterations must be done in
a good and workmanlike manner and diligently prosecuted to
completion to the end that the Premises shall at all times be a
complete unit except during the period of work.
8.3 CONSTRUCTION INSURANCE. In addition to the requirements
of Article 10 of this Lease, in the event that Tenant makes any
Alterations, prior to the commencement of such Alterations, if
Tenant shall use a contractor to make such Alterations, Tenant
shall provide Landlord with evidence that Tenant or Tenant's
contractor carries "Builder's All Risk" insurance in an amount
equal to the cost of construction of such Alterations, and such
other insurance required by law or in the exercise of prudent
business practices.
8.4 LANDLORD'S PROPERTY. All Alterations shall be at the
sole cost of Tenant and shall, at the expiration or earlier
termination of this Lease, be and become the property of
Landlord, except that Tenant may remove any non-structural
Alterations, provided Tenant repairs any damage to the Premises
caused by such removal. If Tenant fails to repair any damage
caused by the removal of any Alterations, Landlord may do so and
may charge the reasonable cost thereof to Tenant. Tenant hereby
indemnifies and holds Landlord harmless from any liability, cost,
obligation, expense or claim of lien in any manner relating to
the installation, placement, removal or financing of any
Alterations, improvements, fixtures and/or equipment in, on or
about the Premises.
ARTICLE 9
9. COVENANT AGAINST LIENS. Except as provided in Article 20
below, Tenant has no authority or power to cause or permit any
lien or encumbrance of any kind whatsoever, whether created by
act of Tenant, operation of law or otherwise, to attach to or be
placed upon the Premises, and any and all liens and encumbrances
created by Tenant shall attach to Tenant's interest only.
Landlord shall have the right at all times to post and keep
posted on the Premises any notice which it deems necessary for
protection from such liens. Tenant covenants and agrees not to
suffer or permit any lien of mechanics or materialmen or others
to be placed against the Shopping Center or the Premises, or any
portion thereof, with respect to work or services claimed to have
been performed for or materials claimed to have been furnished to
Tenant or the Premises, and, in case of any such lien attaching
or notice of any lien, Tenant covenants and agrees to cause it to
be
13
released and removed of record or bonded in a timely manner.
Notwithstanding anything to the contrary set forth in this Lease,
in the event that such lien is not released and removed or bonded
against in a manner reasonably acceptable to Landlord on or
before the date occurring thirty (30) days after notice of such
lien is delivered by Landlord to Tenant, Landlord, at its sole
option, may immediately take all action reasonably necessary to
release and remove such lien, without any duty to investigate the
validity thereof, and all sums, costs and expenses, including
reasonable attorneys' fees and costs, incurred by Landlord in
connection with such lien shall be deemed Additional Rent under
this Lease and shall immediately be due and payable by Tenant
upon receipt of evidence of such payment.
ARTICLE 10
10. INSURANCE.
10.1INDEMNIFICATION. Tenant shall, to the extent not
covered by insurance
carried or required to be carried by Landlord hereunder,
indemnify, defend, protect, and hold harmless Landlord, its
managing members, members, partners, subpartners and their
respective officers, agents, servants, employees, and independent
contractors from any and all loss, cost, damage, expense and
liability (including without limitation court costs and
reasonable attorneys' fees) incurred in connection with or
arising from any cause in, on or about the Premises, including,
without limiting the generality of the foregoing: (i) any default
by Tenant in the observance or performance of any of the terms,
covenants or conditions of this Lease on Tenant's part to be
observed or performed; (ii) the use or occupancy of the Premises
by Tenant or any person claiming by, through or under Tenant;
(iii) the condition of the Premises or any occurrence or
happening on the Premises from any cause whatsoever except
Hazardous Material which was present on the Property before the
date Tenant takes possession of the Premises; (iv) Tenant's, its
employees, contractors or agents, use, release, manufacture,
storage, or disposal of any Hazardous Materials on, under, or
about the Premises, or the transportation to or from the Premises
of any Hazardous Materials, or (v) any acts, omissions or
negligence of Tenant or of any person claiming by, through or
under Tenant, or of the contractors, agents, servants, employees,
visitors or licensees of Tenant or any such person, in, on or
about the Premises, including, without limitation, any acts,
omissions or negligence in the making or performance of any
Alterations (whether prior to or during the Lease Term); provided
that the terms of the foregoing indemnity shall not apply to the
negligence or willful misconduct of Landlord. Landlord shall, to
the extent not covered by insurance carried or required to be
carried by Tenant hereunder, indemnify, defend, protect and hold
harmless Tenant, its managing members, members, partners,
subpartners and their respective officers, agents, servants,
employees, and independent contractors from any such loss, cost,
damage, expense or liability (including, without limitation,
court costs and reasonable attorneys' fees) arising directly out
of the negligence or willful misconduct by Landlord or Landlord's
14
agents, servants, employees and contractors. Further, Xxxxxx's
agreement to indemnify and hold Landlord harmless pursuant to
this Lease and the exclusion from Tenant's indemnity and the
agreement by Landlord to indemnify and hold Tenant harmless
pursuant to the preceding sentence are not intended to and shall
not relieve any insurance carrier of its obligation under
policies required to be carried by Landlord or Tenant,
respectively, pursuant to the provisions of this Lease. The
provisions of this Section 10.1 shall survive the expiration or
sooner termination of this Lease with respect to any claims or
liability occurring prior to such expiration or termination.
10.2TENANT'S INSURANCE. Tenant shall keep in force the
following coverages in
the following amounts:
(i) Commercial General Liability Insurance covering
the insured against claims of bodily injury, personal
injury and property damage arising out of Tenant's
operations, assumed liabilities or use of the Premises,
including a Broad Form Commercial General Liability
endorsement covering the insuring provisions of this Lease
and the performance by Tenant of the indemnity agreements
set forth in Section 10.1 of this Lease, for limits of
liability not less than:
Property Damage Liability $1,000,000 each
occurrence
$2,500,000 annual aggregate
Personal Injury Liability $2,000,000 each
occurrence
$5,000,000 annual aggregate
0% Insured's participation
(ii)Physical Damage Insurance (including broad form
boiler and machinery coverage) covering the entire
Premises, including, but not limited to, (i) the Building
and (ii) all furniture, trade fixtures, steam boilers or
other pressure vessels, air conditioning, heating and
ventilation equipment and systems, equipment, merchandise,
inventory and all other similar items located within the
Premises. Such insurance shall be written on an "all risks"
of physical loss or damage basis, for the full replacement
cost value new without deduction for depreciation of the
covered items, with deductibles reasonably acceptable to
Landlord and in amounts that meet any co-insurance clauses
of the policies of insurance and shall include a vandalism
and malicious mischief endorsement, and sprinkler leakage
coverage.
(iii) Worker's Compensation insurance in compliance
with all applicable laws and Employer's Liability Insurance
in the amount of at least $100,000 or such greater amount
as may be required by law.
(iv) Loss of income and extra expense insurance in
such amounts as will reimburse Tenant for direct or
indirect loss of earnings attributable to all perils
15
commonly insured against by prudent retail tenants or
attributable to prevention of access to the Premises or
Shopping Center as a result of such perils.
(v) Insurance covering the full replacement costs of
all plate glass located at the Premises. Tenant may self
insure this risk.
(vi) Liquor liability insurance coverage in limits
approved by Landlord, in the event Tenant serves or sells
alcohol in or from the Premises.
10.3 FORM OF POLICIES. The minimum limits of policies of
insurance required of Tenant under this Lease shall in no event
limit the liability of Tenant under this Lease. Such insurance
shall (i) name Landlord (and if Landlord so elects, Xxxxxxxx's
partners) and Xxxxxxxx's lender(s) as additional insureds
thereunder; (ii) specifically cover the liability assumed by
Tenant under this Lease, including, but not limited to, Tenant's
obligations under Section 10.1 of this Lease; (iii) be issued
with an insurance company authorized to do business in Indiana
and which has a general policy rating of A or better and a
financial class of VI or better by A.M. Best Company, Inc. (or if
a rating of A.M. Best Company Inc. is no longer available, a
similar rating from a similar or successor service) or which is
otherwise acceptable to Landlord; (iv) be primary insurance as to
all claims thereunder and provide that any insurance carried by
Landlord is not excess and is non-contributing with any insurance
requirement of Tenant; (v) provide that said insurance shall not
be canceled or coverage changed unless thirty (30) days' prior
written notice shall have been given to Landlord and any
mortgagee of Landlord; and (vi) contain a cross-liability
endorsement or severability of interest clause acceptable to
Landlord. Tenant shall deliver said policy or policies or
certificates thereof to Landlord on or before the date Tenant
takes possession of the Premises and at least thirty (30) days
before the expiration dates thereof. In the event Tenant shall
fail to procure such insurance, or to deliver such policies or
certificate, Landlord may, at its option, procure such policies
for the account of Tenant, and the cost thereof (and a reasonable
administrative fee) shall be paid to Landlord within thirty (30)
days after delivery to Tenant of bills therefor. Tenant's
obligation to carry the insurance required under Section 10.2 may
be satisfied by inclusion of the Premises within the coverage of
a so-called "blanket" policy or policies of insurance, provided
that the coverage afforded Landlord will not be diminished by
reason thereof and that the requirements set forth in this
Section 10.4 are otherwise satisfied.
10.4 SUBROGATION. Landlord and Tenant agree to have their
respective insurance companies issuing property damage insurance
waive any rights of subrogation that such companies may have
against Landlord or Tenant, as the case may be. Landlord and
Tenant hereby waive any right that either may have against the
other on account of any loss or damage to their respective
property to the extent such loss or damage is required to be
insured against hereunder or is otherwise insured under policies
of insurance for fire and all risk coverage, theft, or other
similar insurance.
16
10.5 ADDITIONAL INSURANCE OBLIGATIONS. Tenant shall carry
and maintain during the entire Lease Term, at Tenant's sole cost
and expense, increased amounts of the insurance required to be
carried by Tenant pursuant to this Article 10, and such other
reasonable types of insurance coverage and in such reasonable
amounts covering the Premises and Tenant's operations therein, as
may be reasonably requested by Landlord or Landlord's lender(s),
but in no event shall (i) such increased amounts of insurance or
such other types of insurance be in excess of that required by
prudent landlords of comparable first-class Shopping Centers in
Fort Xxxxx, Indiana and (ii) such coverage unless such coverage
is required by Landlord's lender or customarily carried by
similarly situated tenants in Fort Xxxxx, Indiana, and is
available at commercially reasonable rates.
ARTICLE 11
11. Damage and Destruction.
11.1 REPAIRS AND RESTORATION. Tenant shall promptly notify
Landlord of any
damage to the Premises resulting from fire or any other casualty.
Tenant shall, following receipt of applicable permits and
insurance proceeds, forthwith proceed to repair, restore, replace
or rebuild the Premises, including any improvements therein, to
substantially the same condition in which the same were
immediately prior to such damage or destruction. Tenant shall
diligently prosecute said work to completion without delay or
interruption, except for events due to Force Majeure. In
connection with such repairs, Tenant shall, prior to the
commencement of construction, submit to Landlord, for Landlord's
review and approval, all plans, specifications and working
drawings relating thereto. Such submittal of plans for
construction of improvements shall be performed in substantial
compliance with the terms of Article 8 hereof. Notwithstanding
the foregoing, Landlord shall have no right to disapprove
Tenant's plans, specifications and working drawings to the extent
they are the same as those previously approved by Landlord
pursuant to Exhibit D and Article 8 hereof. Landlord will
cooperate with Tenant to obtain the repair or remediation of any
damage done to the Joint Maintenance Common Areas which resulted
from any such casualty. In the event of reconstruction pursuant
to this Section 11.1 or Section 11.2, and Base Rent and
Additional Rent shall xxxxx to the extent of interference with
business conducted by Tenant in the Premises from the date of
completion of such casualty until substantial completion of such
repairs and the refixturing of the Premises, but only if such
abatement is covered by Landlord's rental interruption insurance.
In the event of reconstruction pursuant to this Section 11.1 or
Section 11.2, all insurance proceeds payable under the Physical
Damage Insurance required to be carried by Tenant pursuant to
Section 10.2.2 above shall be paid to Tenant for use in
connection with such reconstruction. Tenant's failure to maintain
adequate insurance shall not relieve Tenant of Tenant's
obligation to rebuild.
17
11.2 DESTRUCTION DURING LAST TWO YEARS OF LEASE TERM.
Notwithstanding the foregoing, if such damage or destruction
shall occur within the last two (2) years of the Lease Term (as
may be extended pursuant to Section 2.2 above), and shall amount
to twenty percent (20%) or more of the replacement cost of the
Premises (exclusive of the land and foundation), this Lease may
be terminated at the election of Tenant, provided that written
notice of such election is delivered to Landlord within forty-
five (45) days after the occurrence of such damage or
destruction. Upon termination as aforesaid, Tenant shall demolish
the remaining improvements and remove all debris from the
Premises, and this Lease and the Term thereof shall cease and
come to an end, any unearned Rent or other charges paid in
advance by Tenant shall be refunded to Tenant, Tenant shall pay
all Rent properly apportioned up to such date of termination, and
the parties shall be released hereunder, and each to the other,
from all liability and obligations thereafter arising. Upon
termination as aforesaid, any insurance proceeds payable pursuant
to the Physical Damage Insurance required to be maintained by
Tenant pursuant to Section 10.2.2 (excluding insurance proceeds
forTenant's merchandise, inventory and personal property, and the
demolition and removal of the improvements) shall be disbursed to
the parties as provided in the following sentences. The parties
shall first agree upon the extent of the damage or destruction on
a percentage basis (e.g., 20%, 30%, 50%, etc.). If the parties
are unable to agree on the percentage of damage or destruction,
then each party shall select an independent appraiser in order to
determine the extent of damage or destruction and the percentage
of damage or destruction reasonably determined by each party's
independent appraiser shall be averaged for purposes of this
paragraph. Within 45 days after such determination, Landlord
shall elect whether or not Landlord desires to repair or replace
any damage to the improvements located on the Premises. If
Landlord elects to repair or replace the damage to the
improvements on the Premises, then such insurance proceeds shall
be disbursed as follows: (a) a percentage of the insurance
proceeds equal to the damage or destruction to the improvements
on the Premises, as determined by the parties or their respective
appraisers, shall be disbursed to Landlord; and (b) the remaining
balance of the insurance proceeds shall be disbursed to Tenant.
If Landlord does not elect to repair or replace the improvements
located on the Premises, then the insurance proceeds shall be
disbursed as follows: (i) first, to the payment of all reasonable
costs of demolition and removal of the improvements located on
the Premises; (ii) a portion of the remaining balance, equal to
the remaining balance multiplied by the percentage of destruction
of the improvements located on the Premises, shall be paid to
Landlord; and (iii) the remaining balance of said insurance
proceeds shall be paid to Tenant.
ARTICLE 12
12. NON-WAIVER. Nowaiverof any provision of this Lease shall be
implied by any failure of Landlord or Tenant to enforce any
remedy on account of the violation of such provision, even if
such violation shall continue or be repeated subsequently, and
any waiver by Landlord or Tenant of any provision of this Lease
may only be in writing. Additionally, no
18
express waiver shall affect any provision other than the one
specified in such waiver and then only for the time and in the
manner specifically stated. No receipt of monies by Landlord from
Tenant after the termination of this Lease shall in any way alter
the length of the Lease Term or of Tenant's right of possession
hereunder, or after the giving of any notice shall reinstate,
continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that
after the service of notice or the commencement of a suit, or
after final judgment for possession of the Premises, Landlord may
receive and collect any Rent due, and the payment of said Rent
shall not waive or affect said notice, suit or judgment.
ARTICLE 13
13. CONDEMNATION.
13.1PERMANENT TAKING. If all or a material portion of the
Premises is taken by power of eminent domain or condemned by any
competent authority ("Condemnor") for any public or quasi-public
use or purpose, or if access to the Premises is permanently and
substantially impaired as a result of such taking, such that
Tenant's business operations on the Premises are substantially
interfered with, either party shall have the option to terminate
this Lease upon ninety (90) days' notice to the other party,
provided such notice is given no later than one hundred eighty
(180) days after the date of such taking. Landlord shall be
entitled to the entire award or payment in connection therewith,
except that Tenant shall be entitled to such portion of the award
attributable to loss of Tenant's interest in the Building, any
Alterations, goodwill and moving expenses. All Rent shall be
apportioned as of the date of such termination, or the date of
such taking, whichever shall first occur. If any part of the
Premises shall be taken, and this Lease shall not be so
terminated, the Rent shall be equitably adjusted.
ARTICLE 14
14. ASSIGNMENT AND SUBLETTING.
14.1 TRANSFERS. Except as permitted in Section 14.5 and
Article 20 below, Tenant shall not, without the prior written
consent of Landlord, assign or otherwise transfer this Lease or
any interest hereunder, permit any assignment, or other transfer
of this Lease or any interest hereunder by operation of law,
sublet the Premises or any part thereof, or permit the use of the
Premises by any persons other than Tenant and its employees (all
of the foregoing are hereinafter sometimes referred to
collectively as "Transfers" and any person to whom any Transfer
is made or sought to be made is hereinafter sometimes referred to
as a "Transferee"). If Tenant desires Landlord's consent to any
Transfer, Tenant shall notify Landlord in writing, which notice
(the "Transfer Notice") shall include
19
(i) the proposed effective date of the Transfer, which shall not
be less than thirty (30) days after nor more than one hundred
eighty (180) days after the date of delivery of the Transfer
Notice, (ii) a description of the portion of the Premises to be
transferred (the "Subject Space"), (iii) all of the material
terms of the proposed Transfer, and (iv) current financial
statements of the proposed Transferee certified by an officer,
partner or owner thereof, and any other information reasonably
required by Landlord to determine the financial responsibility,
character and business experience of the proposed Transferee,
nature of such Transferee's business and proposed use of the
Subject Space, and such other information as Landlord may
reasonably require. Any Transfer made without Landlord's prior
written consent shall, at Landlord's option, be null, void and of
no effect, and shall, at Landlord's option, constitute a default
by Tenant under Section 19.1 of this Lease, subject to Tenant's
right to cure such default.
14.2 LANDLORD'S CONSENT. Landlord shall not unreasonably
withhold its consent to, condition or delay, any proposed
Transfer of the Subject Space to the Transferee on the terms
specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent, the parties hereby
agree that it shall be reasonable under this Lease and under any
applicable law for Landlord to withhold consent to any proposed
Transfer where one or more of the following apply:
(i) The Transferee's contemplated use of the Subject
Space following the Transfer conflicts with a then existing
exclusive granted another occupant of the Shopping Center;
(ii)The Transferee lacks sufficient business
reputation, character or experience to operate a successful
business from the Premises;
(iii) The Transferee has a Net Worth, as calculated
pursuant to GAAP, of less than Four Million Dollars
($4,000,000.00);
(iv) The proposed Transfer would cause a violation of
another lease for space in the Shopping Center which was
executed prior to this Lease, or would give an occupant of
the Shopping Center a right to cancel its lease or bring an
action against Landlord or Jefferson under the Outlot ECR
or otherwise; or
(v) The proposed Transfer relates to less than all of
the Premises.
If Landlord consents to any Transfer pursuant to the terms of
this Section 14.2, Tenant may within 180 days after Landlord's
consent, but not later than the expiration of said period, enter
into such Transfer of the Premises or portion thereof, upon
substantially the same terms and conditions as are set forth in
the Transfer Notice furnished by Tenant to Landlord pursuant to
Section 14.1 of this Lease.
20
14.3 EFFECT OF TRANSFER. If Landlord consents to a Transfer,
(i) the terms and conditions of this Lease shall in no way be
deemed to have been waived or modified, (ii) such consent shall
not be deemed consent to any further Transfer by either Tenant or
a Transferee, (iii) Tenant shall deliver to Landlord, promptly
after execution, a copy of the assignment or sublease or similar
transfer document and (iv) no Transfer relating to this Lease or
agreement entered into with respect thereto, whether with or
without Landlord's consent, (including, but not limited to any
Transfer permitted without Landlord's consent under Section 14.5
below) shall relieve Tenant from liability under this Lease.
Notwithstanding the foregoing, Tenant shall be released from
liability thereafter arising under this Lease in the event a
Transferee approved by Landlord and which otherwise meets the
requirements of this Article 14 has (and will continue to have
immediately following such Transfer) a net worth and net current
assets of $10,000,000 and $2,000,000, respectively. The most
recent annual report or financial statements, audited by an
independent certified public accountant, of such Transferee shall
be delivered to Landlord to evidence such Transferee's net worth
and net current assets.
14.4 ADDITIONAL TRANSFERS. Subject to Section 14.5 below,
for purposes of this Lease, the term "Transfer" shall also
include (i) if Tenant is a partnership, the withdrawal or change,
voluntary, involuntary or by operation of law, of sixty percent
(60%) or more of the general partners, or transfer of twenty-five
percent (25%) or more of the general partnership interests (other
than to immediate family members for estate planning purposes, or
as a result of death), within a eighteen (18) month period, or
the dissolution of the partnership without immediate
reconstitution thereof, and (ii) if Tenant is a closely held
corporation (i.e., whose stock is not publicly held and not
traded through an exchange or over the counter), (A) the
dissolution, merger, consolidation or other reorganization of
Tenant, (B) the sale or other transfer of more than an aggregate
of fifty percent (50%) of the voting shares of Tenant (other than
to immediate family members by reason of gift or death) within a
twelve (12) month period or (c) the sale, mortgage, hypothecation
or pledge of more than an aggregate of sixty percent (60%) of the
value of the unencumbered assets of Tenant within a twelve (12)
month period.
14.5 PERMITTED TRANSFERS. Notwithstanding the foregoing
provisions of this Article 14, Tenant shall have the right to
assign this Lease, or sublet the Premises or any portion thereof,
without the consent of Landlord (but upon at least thirty (30)
days' prior written notice to Landlord), as a part of a financing
transaction or to any subsidiary corporation or other entity,
which acquires all or substantially all of the shares of stock or
assets of Tenant or which is a parent or subsidiary of Tenant, or
which is the successor corporation in the event of a corporate
reorganization (collectively, a "Related Entity"); provided that
such merger, consolidation, acquisition, or reorganization is not
entered into or structured as a subterfuge to avoid Tenant's
obligations or liabilities hereunder, and provided the other
entity shall assume in writing Tenant's obligations this the
Lease.
21
ARTICLE 15
15. SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE
FIXTURES.
15.1 SURRENDER OF PREMISES. No act or thing done by Landlord
or any agent or employee of Landlord during the Lease Term shall
be deemed to constitute an acceptance by Landlord of a surrender
of the Premises unless such intent is specifically acknowledged
in a writing signed by Landlord. The delivery of keys to the
Premises to Landlord or any agent or employee of Landlord shall
not constitute a surrender of the Premises or effect a
termination of this Lease, whether or not the keys are thereafter
retained by Landlord, and notwithstanding such delivery Tenant
shall be entitled to the return of such keys at any reasonable
time upon request until this Lease shall have been properly
terminated. The voluntary or other surrender of this Lease by
Xxxxxx, whether accepted by Landlord or not, or a mutual
termination hereof, shall not work a merger, and at the option of
Landlord shall operate as an assignment to Landlord of all
subleases or subtenancies affecting the Premises.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT Within thirty (30)
days after the expiration of the Lease Term, or upon any earlier
termination of this Lease, Tenant shall, subject to the
provisions of this Article 15, quit and surrender possession of
the Premises to Landlord broom-clean, in as good condition and
repair as Tenant is required to maintain the same throughout the
Lease Term, normal wear and tear excepted, together with all keys
and combinations to locks, safes and vaults and all improvements,
alterations, additions, and fixtures installed in, upon orto the
interior or exterior of the Premises, except personal property,
signs and trade fixtures, all of which shall thereupon become the
property of Landlord without any claim by Xxxxxx therefor, but
the surrender of such property to Landlord shall not be deemed to
be a payment of rent or in lieu of any rents, charges or other
sums reserved hereunder. Tenant shall have up to thirty (30) days
after the expiration of the Lease Term in which to remove
Xxxxxx's personal property, signs and trade fixtures, and Tenant
shall pay to Landlord upon the surrender of the Premises, an
amount equal to one-half (1/4) of the Base Rent calculated on a per
diem basis using the last month's Base Rent. Before surrendering
the Premises, Tenant may, but shall not be obligated to, remove
any improvements, alterations, additions, lighting fixtures,
apparatus, equipment and decorations at any time made or
installed by Tenant in, upon or to the interior or exterior of
the Premises, and Tenant further agrees to repair any damage
caused thereby. If Tenant shall fail to remove any of Tenant's
said personal property, signs and trade fixtures, said property
shall, at the option of Landlord, either be deemed abandoned and
become the exclusive property of Landlord, or Landlord shall have
the right to remove and store said property, without further
notice to or demand upon Tenant.
15.3 LANDLORD'S XXXX XXXXXX. Landlord, within thirty (30)
days after request from Tenant, shall execute and deliver any
document reasonably required by any supplier, lessor, or lender
in connection with the granting, creating, or perfecting by
Tenant of a
22
security interest in and to Xxxxxx's movable personal property
(including, but, not limited to, Xxxxxx's inventory, supplies,
merchandise, fixtures, machinery and equipment but specifically
excluding any such personal property paid for by Landlord) and
any proceeds therefrom, pursuant to which Landlord shall
subordinate any rights it may have or acquire with respect to
said personal property of Tenant, and any proceeds therefrom, if
the supplier, lessor, or lender agrees in writing that: (i) it
will remove that property from the Premises before the expiration
of the term or within ten (10) days after termination of this
Lease and (ii) it will, at its sole cost and expense, make
whatever restoration to the Premises that is necessitated by such
removal.
ARTICLE 16
16. HOLDING OVER. If Tenant holds over after the expiration of
the Lease Term hereof, with or without the express or implied
consent of Landlord, such tenancy shall be from month-to-month
only, and shall not constitute a renewal hereof or an extension
for any further term, and in such case Base Rent shall be payable
at a monthly rate equal to one hundred fifty percent (150%) of
the Base Rent applicable during the last rental period of the
Lease Term under this Lease. Such month-to-month tenancy shall be
subject to every other applicable term, covenant and agreement
contained herein. Nothing contained in this Article 16 shall be
construed as consent by Landlord to any holding over by Xxxxxx,
and Land lord expressly reserves the right to require Tenant to
surrender possession of the Premises to Landlord as provided in
this Lease upon the expiration or other termination of this
Lease, but subject to Xxxxxx's rights in Section 15.2. If Xxxxxx
fails to surrender the Premises upon the termination or
expiration of this Lease, in addition to any other liabilities to
Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs
(including reasonable attorneys' fees) and liability resulting
from such failure.
ARTICLE 17
17. ESTOPPEL CERTIFICATES. Within fifteen business days (15)
days following a request in writing by Landlord, Tenant shall
execute and deliver to Landlord an estoppel certificate, which,
as submitted by Landlord, shall be substantially in the form of
Exhibit C, attached hereto (or such other form as may be
reasonably required by any prospective mortgagee or purchaser of
the Shopping Center, or any portion thereof), indicating therein
any exceptions thereto that may exist at that time, and shall
also contain any other information reasonably requested by
Landlord or Landlord's mortgagee or prospective mortgagee. The
provisions of this Article 17 are hereby deemed to be reciprocal
to the extent contextually applicable, including the requirement
that Landlord deliver such an estoppel certificate to a Leasehold
Mortgagee (as defined in Article 20 below).
23
ARTICLE 18
18. SUBORDINATION. This Lease shall be subject and subordinate
to the lien of any mortgage now or hereafter in force against the
Premises, if any, and to all renewals, extensions, modifications,
consolidations and replacements thereof, and to all advances made
or hereafter to be made upon the security of such mortgages,
unless the holders of such mortgages, or the lessors under such
ground lease, require in writing that this Lease be superior
thereto. Notwithstanding the foregoing, the subordination of this
Lease to mortgages shall be conditioned upon delivery to Tenant
of a reasonably acceptable Non-Disturbance Agreement (as defined
below). Tenant covenants and agrees in the event any proceedings
are brought for the foreclosure of any such mortgage or deed in
lieu thereof, to attorn, without any deductions or set-offs
whatsoever, to the purchaser or any successors thereto upon any
such foreclosure sale or deed in lieu thereof if so requested to
do so by such purchaser, and to recognize such purchaser as the
lessor under this Lease; provided that such purchaser shall
recognize this Lease and that Xxxxxx's right to possession of the
Premises under this Lease shall not be disturbed so long as
Xxxxxx performs all of the duties and obligations of Tenant
hereunder. Tenant shall, within twenty (20) days of request by
Xxxxxxxx, execute and deliver to Landlord such further
instruments or assurances as Landlord may reasonably deem
necessary to evidence or confirm the subordination or superiority
of this Lease to any such mortgages, subject to Xxxxxx's
obtaining from such mortgagee a commercially reasonable non-
disturbance agreement executed by such mortgagee providing that,
as long as Tenant is not in default beyond the expiration of the
applicable cure period hereunder, this Lease shall remain in
effect for the full Lease Term (a "Non-Disturbance Agreement").
ARTICLE 19
19. DEFAULTS; REMEDIES.
19.1EVENTS OF DEFAULT BY TENANT. The occurrence of any of
the following shall constitute an Event of Default by Tenant
under the terms of this Lease:
(i) Any failure by Tenant to pay any Rent or any other
charge required to be paid under this Lease, or any part
thereof, within ten (10) days after written notice from
Landlord to Tenant that such payment is due; or
(ii)A Transfer in violation of Article 14 hereof; or
(iii) Any failure by Tenant to observe or perform any
other provision, covenant or condition of this Lease to be
observed or performed by Tenant where such failure
continues for thirty (30) days after written notice thereof
from Landlord to Tenant; provided however, if the nature of
such default is such that the same
24
cannot reasonably be cured within a thirty (30) day period,
Tenant shall not be deemed to be in default if it
diligently commences such cure within such period and
thereafter diligently proceeds to rectify and cure said
default as soon as possible; or
(iv) Tenant's failure to execute and deliver any
requested estoppel instrument(s) or subordination
agreement(s) within fifteen business (15) days of Tenant's
receipt of same; or
(v) To the extent permitted by law, a general
assignment by Tenant of the Lease for the benefit of
creditors, or the filing by or against Tenant of any
proceeding under an insolvency or bankruptcy law, unless in
the case of a proceeding filed against Tenant the same is
dismissed within ninety (90) days, or the appointment of a
trustee or receiver to take possession of all or
substantially all of the assets of Tenant, unless
possession is restored to Tenant within ninety (90) days,
or any execution or other judicially authorized seizure of
all or substantially all of Tenant's assets located upon
the Premises or of Tenant's interest in this Lease, unless
such seizure is discharged within ninety (90) days.
19.2 LANDLORD'S REMEDIES UPON DEFAULT BY TENANT. Upon the
occurrence of any uncured Event of Default by Xxxxxx, Landlord
may, at its option: a) terminate this Lease as of a specified
date provided in a notice to tenant, and resume possession of the
Premises, or b) without terminating the Lease, relet the Premises
without such reletting being deemed an acceptance of a surrender
of the Premises or Lease, nor a waiver of Landlord's rights or
remedies. In addition to rights to possession of the Premises,
Landlord shall be entitled to damages in an amount calculated as
provided below. Landlord shall have the right to accelerate the
Rent for the lesser of the unexpired term (not including
renewals) and sixty (60) months (the "Initial Acceleration
Period"). The present value of this stream of Rent shall then be
calculated utilizing a discount rate of eight percent (8%) per
annum. Landlord shall attempt to obtain a substitute tenant or
take other commercially reasonable actions to mitigate its
damages. Landlord shall calculate the present value of the rental
payments to be remitted by the substitute tenant during the
Initial Acceleration Period using a discount rate of eight
percent (8%) per annum. The parties agree that Landlord may not
find a suitable substitute tenant for part of the Initial
Acceleration Period. Landlord shall calculate the difference
between the present value of the Rent to be remitted by Tenant
pursuant to the terms of this Lease and the present value of the
rent to be remitted by the substitute tenant. To such amount will
be added all reasonable attorneys fees and expenses incurred by
Landlord to obtain a substitute tenant or to enforce the terms of
this Lease, reasonable realtor's fees and other reasonable
expenses of reletting the Premises. Landlord shall be entitled to
a money judgment against Tenant for such amount. In the event
that the unexpired term (not including renewals) extends beyond
the Initial Acceleration Period, upon the expiration of forty
eight (48) months after Landlord's initial acceleration of Rent,
Landlord shall be entitled to accelerate Rent again
25
for any additional period equal to the lesser of the unexpired
term (not including renewals) remaining after the Initial
Acceleration Period and sixty (60) months (the "Second
Acceleration Period"). Landlord shall be entitled to judgment in
its favor and against Tenant for the Second Acceleration Period
(if any) of Rent calculated as described above. In the event that
the unexpired term (not including renewals) extends beyond the
Second Acceleration Period, Landlord shall be entitled to
accelerate a third time upon expiration of forty eight (48)
months after the xxxx of the Second Acceleration Period for any
additional period equal to the lesser of the unexpired term (not
including renewals) remaining after the Second Acceleration
Period and sixty (60) months. This procedure shall continue until
the term (not including renewals) is expired. Judgment may be
entered in favor of Landlord and against Tenant notwithstanding
that Landlord has not yet found a substitute Tenant despite
commercially reasonable efforts. In such a case, Xxxxxxxx agrees
to promptly amend the judgment after obtaining a substitute
tenant to take into account the present value of the rent to be
paid by the substitute tenant.
19.3 EFFORTS TO RELET. For the purposes of this Article 19,
Xxxxxx's right to possession shall not be deemed to have been
terminated by efforts of Landlord to relet the Premises, by its
acts of maintenance or preservation with respect to the Premises,
or by appointment of a receiver to protect Xxxxxxxx's interests
hereunder. The foregoing enumeration is not exhaustive, but
merely illustrative of acts which may be performed by Landlord
without terminating Tenant's right to possession.
19.4 LANDLORD DEFAULT. Landlord shall not be in default
hereunder unless Landlord fails to perform the obligations
required of Landlord within a reasonable time, but in no event
sooner than thirty (30) days after notice by Tenant to Landlord
specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required
for performance, then Landlord shall not be in default if
Landlord commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion. In no
event shall Tenant have the right to terminate this Lease as a
result of Landlord's default, and Xxxxxx's remedies shall be
limited to monetary damages and such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time
by applicable law; provided however, that in no event shall
Landlord be liable under any circumstances for any consequential
damages incurred by Tenant including, without limitation, any
injury to, or interference with, Xxxxxx's business, (including
any loss of profits) arising in connection with this Lease.
Nothing herein contained shall be interpreted to mean that Xxxxxx
is excused from paying Rent due hereunder as a result of any
default by Landlord. Notwithstanding the foregoing or anything in
this Lease to the contrary, if Landlord is in default hereunder
(after expiration of the notice and cure period), then Tenant
may, following an additional ten (10) day notice to Landlord and
any such holder of a mortgage, cure such default on Landlord's
behalf and expense and, in such event, Landlord shall reimburse
Tenant for all reasonable and documented costs incurred in
connection therewith within thirty (30) days following receipt of
a billing therefor. In no
26
event shall Tenant have any right to offset or deduct any sums
from Rent due hereunder until the expiration of thirty (30) days
after providing Landlord a billing for any expense paid by
Xxxxxx, in which event Tenant may, notwithstanding anything in
this Lease to the contrary, deduct from any single installment of
Base Rent an amount not in excess of twenty-five (25%) percent of
that particular installment, which deduction may be taken until
Tenant has fully recovered the expense, plus interest thereon at
the Interest Rate.
19.5 CONSEQUENTIAL DAMAGES. Landlord and Tenant each waive
any and all claims or liability for any and all indirect,
incidental, special or consequential damages which either may
incur as a result of a default by the other under this Lease.
ARTICLE 20
20. Leasehold Mortgages.
20.1 RIGHT TO ENCUMBER. Notwithstanding anything to the
contrary contained in the Lease, Tenant may at any time and from
time to time without Landlord's consent, encumber, hypothecate,
mortgage, pledge or alienate Tenant's leasehold estate and rights
hereunder, and Xxxxxx's interest in the Building and other
improvements constructed by Tenant on the Premises, as security
for payment of any indebtedness of Tenant to a lender or
investor; provided, however, such encumbrance, hypothecation,
mortgage, pledge or alienation shall not encumber Landlord's fee
title or reversionary interest in orto the Premises, the Tenant
Improvements, and Landlord's right to receive Rent and Additional
Rent hereunder shall have priority over the rights of any
Leasehold Mortgagee (as defined below). Any such encumbrance,
hypothecation, mortgage, pledge or alienation shall be referred
to herein as a "Leasehold Mortgage," and the holder of a
Leasehold Mortgage shall be referred to herein as Leasehold
Mortgagees." A Leasehold Mortgagee may enforce its Leasehold
Mortgage and acquire title to the leasehold estate in any lawful
way and, pending foreclosure of such Leasehold Mortgage, such
Leasehold Mortgagee may take possession of and operate the
Premises, performing all obligations of Tenant under this Lease
capable of being performed by such Leasehold Mortgagee, and upon
foreclosure of such Leasehold Mortgage by judicial foreclosure,
or upon acquisition of the leasehold estate by deed in lieu of
foreclosure, the Leasehold Mortgagee may, upon notice to
Landlord, sell and assign the leasehold estate hereby created;
subject to the requirements of Section 20.4 below.
Notwithstanding any such Leasehold Mortgage, in no event shall
Tenant be released from any of its obligations under this Lease
(even in the event any Leasehold Mortgagee or any successor
acquires title to such leasehold estate).
20.2 LANDLORD'S FORBEARANCE. Landlord, concurrently with the
delivery to Tenant of any notice of a default or breach under
this Lease, shall provide a copy of such notice to any Leasehold
Mortgagee, so long as Landlord has previously been informed of
the name and address of such Leasehold Mortgagee in the manner
and by the means
27
provided for in Article 22 of this Lease. There shall be only one
such Leasehold Mortgage at a given time. No such notice by
Landlord to Tenant shall be deemed to have been duly given unless
and until a copy thereof has been so provided to any Leasehold
Mortgagee of which Landlord has notice. Landlord may not
terminate this Lease because of Tenant's default or breach if,
within thirty (30) days after such written notice, any such
Leasehold Mortgagee shall have (i) cured all defaults or breaches
described in said notice which can be cured by the payment of
money; or (ii) if any such defaults or breaches are not curable
by the payment of money commenced to cure such defaults or
breaches and continue diligently to prosecute the same towards
completion (including foreclosure if necessary to gain possession
of Premises). If the Leasehold Mortgagee ceases its effort to
cure any such default, then Landlord shall have no further
obligation hereunder to forebear the termination of this Lease.
20.3 NEW LEASE. Upon a Leasehold Mortgagee's request to
Landlord within thirty (30) days after such Leasehold Mortgagee's
acquisition of such leasehold, Landlord shall enter into a new
lease with such Leasehold Mortgagee covering the Premises covered
by the foreclosed Lease if such Leasehold Mortgagee (i) gives
notice of request prior to or concurrently with such foreclosure,
(ii) pays all costs associated with such new lease (including
Landlord's attorneys' fees and costs), and (iii) remedies all
defaults capable of cure (including, but not limited to, the
payment of all Rent and other charges due under this Lease up to
and including the commencement of the term of such new lease).
The new lease shall be for the remainder of the Term, plus any
Option Terms (as may be extended pursuant to Section 2.2) of this
Lease, effective at the date of foreclosure, and in the form of
this Lease, including, but not limited to, at the Rent and on all
of the covenants, agreements, conditions, provisions,
restrictions and limitations contained in this Lease (including
the restrictions on use contained in Article 5 hereof).
20.4 ASSIGNMENT. No Leasehold Mortgagee or purchaser at
foreclosure shall be entitled to become the owner of Tenant's
interest in this Lease unless such Leasehold Mortgagee or
purchaser shall first have delivered to Landlord an assumption
agreement reasonably acceptable to Landlord, executed in
recordable form, wherein and whereby such Leasehold Mortgagee or
purchaser (i) assumes the performance of all of the terms,
covenants and conditions of this Lease, and expressly confirms
that the same are in full force and effect, (ii) use the Premises
in accordance with all of the requirements of this Lease
(including Article 5) and (iii) otherwise satisfies the
requirements of Section 14.3 concerning an assignment of this
Lease.
ARTICLE 21
INSPECTION AND DELIVERY OF PREMISES
Prior to the execution of this Lease, Xxxxxx has had the
opportunity to obtain and review the following documents:
(i) Copy of the Construction, Operation and Reciprocal
Easement Agreement by and between Landlord and Xxx Xxxx,
Inc., recorded on June 23, 2000, as Document No. 200038790
(the "REA"), and
(ii)Draft Outlot ECR.
21.1Landlord has no actual knowledge of, and has received
no notice of, any violation, or potential or alleged violation,
of any governmental law, rule, statute, ordinance or regulation,
including without limitation Environmental Laws, affecting the
Shopping Center, the Premises or any contiguous properties,
regardless of whether same has been cured. "Environmental Laws"
means any and all federal, state, county, municipal or other
governmental statutes, laws, ordinances, rules, regulations and
legally enforceable policies concerning the protection of the
environment, human health or safety, whether presently in effect
or hereafter enacted, promulgated, amended or substituted.
21.2 CONDITIONS TO TENANT'S OBLIGATIONS. Xxxxxx has
completed Tenant's due diligence.
21.3 DELIVERY. Landlord shall deliver the Premises to Tenant
when Landlord closes on the purchase of the Premises from
Jefferson.
ARTICLE 22
22. NOTICES. All notices, demands, statements, designations,
approvals or other communications (collectively, "Notices") given
or required to be given by either party to the other hereunder
shall be in writing, shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested,
xxxxxxxxxxx personally (including reputable overnight courier
services) to Landlord or Tenant at the appropriate addresses set
forth in Section ii of the Summary, or to such other place as
Landlord or Tenant may from time to time designate in a Notice to
the other party. Any Notice will be deemed given upon receipt or
refusal if it is mailed as provided in this Article 22 or upon
the date personal delivery is made. If Tenant is notified of the
identity and address of the holder of any deed of trust or ground
or underlying lessor, Tenant shall give to such mortgagee or
ground or underlying lessor written notice of any default by
Landlord under the terms of this Lease any method permitted by
this Article 22, and such mortgagee shall be given a reasonable
opportunity to cure such default prior to Tenant's exercising any
remedy available to
29
Tenant. If Landlord is notified of the identity and address of
the holder of a Leasehold Mortgage, Landlord shall give to such
Leasehold Mortgagee written notice of any default by Tenant under
the terms of this Lease by a method permitted under this Article
22, and such Leasehold Mortgagee shall be given an opportunity to
cure such default prior to Landlord's exercising any remedy
available to Landlord, as more particularly provided in Section
20.2.
ARTICLE 23
23. DEVELOPMENT OF THE SHOPPING CENTER. Xxxxxxxxx intends to
subdivide all or a portion of the Shopping Center pursuant to the
terms of the Outlot ECR. Subject to the Tenant's rights and the
limitations set forth in the Outlot ECR, Xxxxxx agrees to execute
and deliver, upon demand by Xxxxxxxx and in the form requested by
Landlord, any additional documents reasonably necessary to
conform this Lease to the circumstances resulting from a
subdivision and any all maps in connection therewith. It is
agreed that (i) all Common Areas shall be subject to the
exclusive control and management of Jefferson and subject to the
Outlot ECR (as defined in this Lease), and Jefferson shall have
the right at any time (either before, during or after initial
construction thereof), once or more often, to change the size,
area, level, location and arrangement of the entrances, access
roads, parking areas and other Common Areas, to construct
buildings and other improvements thereon and therein, and to
permit the owners and occupants of land located outside the
Shopping Center and Premises and their invitees to use the Common
Areas; (ii) Jefferson shall have the right to make alterations
and additions to the buildings in the Shopping Center (including
the construction of additional buildings therein), and to add and
exclude areas from the Shopping Center, and to relocate
improvements; and (iii) Jefferson shall have the right to do and
perform such other acts in and to the Common Areas as Jefferson
shall determine to be advisable with a view to the improvements
of the convenience and use thereof by tenants of the Shopping
Center and Premises, and their customers. The rights of the
Landlord and Xxxxxxxxx as reserved in this Lease shall be subject
to the condition that no exercise of any such rights by Xxxxxxxxx
in accordance with the Outlot ECR shall alter the physical
dimensions of the Premises nor change its location or relative
proximity to other stores nor otherwise materially or
unreasonably interfere with the conduct of Xxxxxx's business in
the Premises and if Xxxxxxxxx does so in violation of the Outlot
ECR, Tenant shall be entitled to relief only against Xxxxxxxxx.
Tenant acknowledges that portions of the Shopping Center may be
under construction following Xxxxxx's occupancy of the Premises,
and that such construction may result in levels of noise, dust,
obstruction of access, etc. which are in excess of that present
in a fully constructed Shopping Center. Tenant hereby waives any
and all Rent offsets or claims of constructive eviction which may
arise in connection with such construction.
30
ARTICLE 24
24. BROKERS. Landlord and Tenant hereby warrant to each other
that they have had no dealings with any real estate broker or
agent in connection with the negotiation of this Lease, and that
they know of no real estate broker or agent who is entitled to a
commission in connection with this Lease, other than Next Realty
and its local affiliate, which commission shall be paid by
Landlord. Each party agrees to indemnify and defend the other
party against and hold the other party harmless from any and all
claims, demands, losses, liabilities, lawsuits, judgments, and
costs and expenses (including without limitation reasonable
attorneys' fees) with respect to any leasing commission or
equivalent compensation alleged to be owing on account of any
dealings with any real estate broker or agent, occurring by,
through, or under the indemnifying party. Tenant acknowledges
that Xxxxxxxx has informed Tenant that certain principals and
members of Landlord are licensed real estate brokers.
ARTICLE 25
25. LATE CHARGES. Tenant hereby acknowledges that late payment
by Tenant to Landlord of Rent (including Percentage Rent) or
other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which is
extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges
which may be imposed upon Landlord by the terms of any mortgage
or deed of trust covering the Premises. Accordingly, if any
installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within ten (10) days
after written notice from Landlord to Tenant that said amount is
due, then Tenant shall pay to Landlord a late charge equal to
five percent (5%) of the overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate
of the costs that Landlord will incur by reason of the late
payment of Rent by Xxxxxx. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted
hereunder. The late charge shall be deemed Additional Rent and
the right to require it shall be in addition to all of Landlord's
other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's
remedies in any manner. In addition to the late charge described
above, any Rent or other amounts owing hereunder which are not
paid within ten (10) days after written notice from Landlord to
Tenant that they are due shall bear interest from the date when
due until paid at a rate per annum equal to the then prime rate
established by the Federal Reserve plus three percent (3%)
("Interest Rate").
31
ARTICLE 26
26. LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT.
26.1 LANDLORD'S RIGHT TO SELF HELP. If Landlord considers
necessary any repairs, maintenance, renewals or replacements or
other items required by the provisions of this Lease for which,
under any of the terms of this Lease, Tenant is responsible to be
made or provided, Landlord may demand that Tenant make such
repairs or perform such maintenance or provide such renewal or
replacements, and, upon Tenant's failure or refusal to commence
such repair, maintenance, renewal or replacement within thirty
(30) days from the date of such request, Landlord shall have the
right (but shall not be obligated), either itself or through a
third-party contractor, to make such repair, perform such
maintenance or provide such renewal or replacement (Tenant hereby
waiving any damage caused thereby including, without limitation,
any damage caused by any such third-party contractor engaged by
Landlord to perform such work except as a result of Landlord's
gross negligence).
26.2 TENANT'S REIMBURSEMENT. Except as may be specifically
provided to the contrary in this Lease, Tenant shall pay to
Landlord, within thirty (30) days after delivery by Landlord to
Tenant of statements therefor: (i) sums equal to expenditures
reasonably made and obligations incurred by Landlord in
connection with the remedying by Landlord of Tenant's defaults
pursuant to the provisions of Section 26.1; and in addition, if
not paid within twenty (20) days of such demand, Tenantshall pay
Landlord, upon demand, interest at prime plus two percent
(2%);(ii) sums equal to all expenditures made and obligations
incurred by Landlord in collecting or attempting to collect the
Rent or in enforcing or attempting to enforce any rights of
Landlord under this Lease or pursuant to law following any Event
of Default by Tenant for which any applicable notice and cure
period has expired, including, without limitation, all reasonable
legal fees and other amounts so expended. In the event Tenant
defaults in such payment, Landlord shall have all remedies
provided in this Lease. Tenant's obligations under this Section
26.2 shall survive the expiration or sooner termination of the
Lease Term.
ARTICLE 27
27. ENTRY BY LANDLORD. Landlord reserves the right at all
reasonable times and upon not less than 24 hours prior written
notice to Tenant (except in the case of an emergency) to enter
the Premises to (i) inspect them; (ii) show the Premises to
prospective purchasers, mortgagees or to the ground or underlying
lessors; (iii) show the Premises to prospective tenants during
the last nine (9) months of the Lease Term, so long as Tenant has
advised Landlord of its intent not to exercise its renewal
option; (iv) post notices of nonresponsibility, provided the
posting does not interfere with Tenant's business; (v) perform
services required of Landlord; or (vi) perform any covenants of
Tenant which Xxxxxx fails to perform. Landlord may make any such
entries without the abatement of
32
Rent and may take such reasonable steps as required to accomplish
the stated purposes; provided, however, each such entry shall be
made in reasonable manner which, to the maximum extent reasonably
possible, does not interfere with Tenant's business operations or
security systems. Any entry into the Premises by Landlord in the
manner hereinbefore described shall not be deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises,
or an actual or constructive eviction of Tenant from any portion
of the Premises. Landlord shall not erect any signs advertising
the Premises for sale or lease so long as Tenant remains open for
business at the Premises.
ARTICLE 28
28. PARKING. Throughout the Lease Term but subject to the
provisions of this Article 28, Tenant and Tenant's employees,
agents, customers, invitees and permittees shall have Landlord's
right to the non-exclusive use of all parking areas of the
Shopping Center included in the Common Areas for the parking of
motor vehicles as set forth in the Outlot ECR. Tenant
acknowledges that all such parking spaces are to be used on a non-
exclusive, first-come, first-served basis by all owners,
landlords, tenants, occupants, licensees, invitees and permittees
of the Shopping Center. Tenant's parking rights shall be subject
to the terms of this Lease and reasonable parking rules and
regulations adopted by Xxxxxxxxx from time to time. Tenant shall
not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenant's suppliers, shippers, customers, or invitees
to be loaded, unloaded, or parked in areas other than those
reasonably designated by Landlord for such activities.
ARTICLE 29
29. MISCELLANEOUS PROVISIONS.
29.1 TERMS. The necessary grammatical changes required to
make the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may
require, shall in all cases be assumed as though in each case
fully expressed.
29.2 BINDING EFFECT. Subject to all other provisions of this
Lease, each of the provisions of this Lease shall extend to and
shall, as the case may require, bind or inure to the benefit not
only of Landlord and of Tenant, but also of their respective
successors or assigns, provided this clause shall not permit any
assignment by Tenant contrary to the provisions of Article 14 of
this Lease.
29.3 TRANSFER OF LANDLORD'S INTEREST. The Landlord reserves
the right to sell or otherwise assign its interest in the Lease
or the Premises and the acquisition of title or this Lease by a
subsequent owner shall not affect or impair this Lease. If
Landlord conveys or transfers its interest in the Premises Xxxxxx
agrees that upon assumption of Landlord's
33
obligations in writing by the transferee, upon such conveyance or
transfer, Landlord (and in the case of any subsequent conveyances
or transfers, the then grantor or transferor) shall be entirely
released from all liability with respect to the performance of
any obligations on the part of Landlord to be performed hereunder
from and after the date of such conveyance or transfer. Upon
notice of such transfer, Tenant shall attorn to the new owner as
landlord.
29.4 MEMORANDUM OF LEASE. Both parties shall execute and
acknowledge a Memorandum of this Lease in recordable form which
shall be substantially in the form attached hereto as Exhibit E,
which Memorandum shall be recorded in the office of the County
Recorder of Xxxxx County, Indiana promptly after the Lease
Commencement Date provided all contingencies have been satisfied
or waived by Landlord and Tenant as provided in this Lease. The
parties shall share all costs associated with the recordation of
such Memorandum.
29.5 CAPTIONS. The captions of Articles and Sections are for
convenience only and shall not be deemed to limit, construe,
affect or alter the meaning of such Articles and Sections.
29.6 RELATIONSHIP OF PARTIES. Nothing contained in this
Lease shall be deemed or construed by the parties hereto or by
any third party to create the relationship of principal and
agent, partnership, joint venturer or any association between
Landlord and Tenant, it being expressly understood and agreed
that neither the method of computation of Rent nor any act of the
parties hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and
tenant.
29.7 SHOPPING CENTER NAME AND SIGNAGE. Xxxxxxxxx shall have
the right at any time to change the name of the Shopping Center
(or portions thereof).
29.8 TIME OF ESSENCE. Time is of the essence of this Lease
and each of its provisions.
29.9 PARTIAL INVALIDITY. If any term, provision or condition
contained in this Lease shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of
such term, provision or condition to persons or circumstances
other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every
other term, provision and condition of this Lease shall be valid
and enforceable to the fullest extent possible permitted by law.
29.10 FINANCIAL STATEMENTS. Xxxxxx agrees that it shall
promptly furnish Landlord, from time to time, upon Xxxxxxxx's
written request, with the most recent year-end Profit and Loss
Statement of Tenant which shall be provided in a statement
certified by a certified public accounting firm. Tenant agrees to
provide Landlord with Xxxxxx's most recent year end Balance Sheet
upon Xxxxxxxx's written request, but such request may not be
submitted more than once per year.
29.11 ENTIRE AGREEMENT. It is understood and
acknowledged that there are no oral agreements between the
parties hereto affecting this Lease and this Lease supersedes and
cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to
the subject matter thereof, and none thereof shall be used to
interpret or construe this Lease. This Lease, the exhibits and
schedules attached hereto, the Work Letter Agreement, and any
side letter or separate agreement executed by Landlord and Tenant
in connection with this Lease and dated of even date herewith,
contain all of the terms, covenants, conditions, warranties and
agreements of the parties relating in any manner to the rental,
use and occupancy of the Premises and shall be considered to be
the only agreements between the parties hereto and their
representatives and agents. None of the terms, covenants,
conditions or provisions of this Lease can be modified, deleted
or added to except in writing signed by the parties hereto. All
negotiations and oral agreements acceptable to both parties have
been merged into and are included herein. There are no other
representations or warranties between the parties, and all
reliance with respect to representations is based totally upon
the representations and agreements contained in this Lease.
Exhibits
A-I Outline of Shopping Center
A-2 Outline of the Premises and Xxxxxx's Envelope
B Notice of Lease Term Dates
C Form of Tenant's Estoppel Certificate
D Work Letter Agreement
D-1 Work Schedule
D-2 Landlord's Work Plans
E Form of Memorandum of Lease
F Form of Construction Agreement
29.12 FORCE MAJEURE. Any prevention, delay or stoppage
due to strikes, lockouts, labor disputes, acts of God, inability
to obtain services, labor, or materials or reasonable substitutes
therefor, governmental actions, civil commotions, fire or other
casualty, except with respect to the obligations imposed with
regard to Rent and other charges to be paid by Tenant pursuant to
this Lease and the Lease Commencement Date and Tenant's
obligation to commence paying Rent (collectively, "Force
Majeure"), notwithstanding anything to the contrary contained in
this Lease, shall excuse the performance of such party for a
period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance
of an obligation of either party, that time
35
period shall be extended by the period of any delay in such
party's performance caused by a Force Majeure.
29.13 JOINT AND SEVERAL. If there is more than one
Tenant, the obligations imposed upon Tenant under this Lease
shall be joint and several.
29.14 AUTHORITY. If Tenant or Landlord is a corporation
or partnership, each individual executing this Lease on behalf of
such party hereby represents and warrants that such party is a
duly formed and existing entity qualified to do business in
Indiana and that such party has full right and authority to
execute and deliver this Lease and that each person signing on
behalf of such party is authorized to do so.
29.15 GOVERNING LAW. This Lease shall be construed and
enforced in accordance with the laws of the State of Indiana.
Landlord and Tenant agree and stipulate that venue shall be Xxxxx
County, Indiana.
29.16 SUBMISSION OF LEASE. Submission of this instrument
for examination or signature by Xxxxxx does not constitute a
reservation of or an option for lease, and it is not effective as
a lease or otherwise until execution and delivery by both
Landlord and Tenant.
29.17 LANDLORD AND TENANT LIABILITY. It is expressly
understood and agreed that notwithstanding anything in this Lease
to the contrary, and notwithstanding any applicable law to the
contrary, the liability of Landlord or Tenant hereunder
(including any successor1 in interest hereunder) shall be limited
solely to Landlord or Tenant)as legal entities and their
constituent partners, subpartners, members, managing members or
agents shall xxxx no personal liability therefor, and Landlord
and Tenant, on behalf of themselves and all persons claiming by,
through, or under them, hereby expressly waive and release such
partners, subpartners, members, managing members or agents from
any and all personal liability.
29.18 COVENANT OF QUIET ENJOYMENT. Landlord covenants
that Tenant, on paying the Rent, charges for services and other
payments herein reserved and on keeping, observing and performing
all the other terms, covenants, conditions, provisions and
agreements herein contained on the part of Tenant to be kept,
observed and performed, shall, during the Lease Term, peaceably
and quietly have, hold and enjoy the Premises subject to the
terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or
through Landlord.
29.19 GROSS SALES RECORDS. Whether or not Tenant is
required to pay Percentage Rent, or any other sums required of
Tenant to be paid to Landlord or others computed or described
herein, Tenant shall keep at its home office during the term
hereof and until the full performance of Xxxxxx's obligations
hereunder are completed, notwithstanding the expiration of this
Lease, an accurate record, verifiable under accepted accounting
36
principles, of Gross Sales. Xxxxxx further agrees to keep, retain
and preserve, for at least three (3) Lease Years, a record of its
Gross Sales from the Premises. Landlord hereby expressly
acknowledges that (I) Tenant retains cash register receipts,
daily sales reports, sales slips and deposit slips for a limited
period of time only and (ii) transfers data from such original
sales records to its more permanent computerized accounting
records, which records are in keeping with good and accepted
accounting practice. Accordingly, Landlord hereby approves of
Xxxxxx's method of original and permanent recording of Gross
Sales.
29.20 INSPECTIONS. Tenant, at Tenant's sole cost and
expense, shall have the right to perform any necessary marketing
studies, perform any necessary studies or tests of the Premises,
enter onto the Premises to perform borings, soil, engineering and
environmental tests, surveys and studies, and to determine the
extent of the availability of utilities at the Premises and to
generally determine the feasibility of the project. Xxxxxx agrees
to indemnify and hold harmless Landlord from and against, and to
reimburse Landlord with respect to any and all claims, demands,
causes of action, loss, damage, liabilities, costs and expenses
(including attorneys' fees and court costs) asserted against or
incurred by Landlord by reason of or arising out of the damages
caused by the entry by Tenant with regard to such inspections,
soil tests, examination or any other entry by Tenant upon the
Premises.
29.21 GIFT CERTIFICATE PROGRAM. In the event Xxxxxxxxx
elects to institute a "Gift Certificate Program" at the Center,
Xxxxxx agrees to participate in such program pursuant to the
terms of the Outlot ECR.
29.22 CONSTRUCTION AGREEMENT. The parties agree that a
written agreement as to the construction of the improvements on
the Premises is important to the development of an orderly
shopping center and, therefore, the parties hereto agree to
execute and deliver prior to commencement of construction, a
construction agreement substantially in the form attached hereto
as Exhibit F.
29.23 INDEPENDENT COVENANTS. The doctrine of independent
covenants will apply in all matters relating to this Lease
including, without limitation, all obligations of Landlord and
Tenant to perform their respective obligations under this Lease.
Except as to Tenant's offset rights, the preceding sentence shall
apply notwithstanding that Landlord may have defaulted in
fulfilling a covenant to maintain or repair the Premises even if
such default results in the unsuitability of the Premises for
Tenant's intended commercial use. All obligations of Tenant which
by their nature involve performance after the end of the term, or
which cannot be ascertained to have been performed until after
the end of the term of this Lease, shall survive the expiration
or sooner termination of this Lease.
29.24 FIRST RIGHT OF OFFER. In the event Landlord
desires to sell the Premises, Tenant shall have the exclusive
first right to make an offer to purchase the Premises for
Landlord's asking price (the "Asking Price") for the Premises.
Should Tenant waive its first
37
right of offer, Landlord may put the Premises on the market. In
the event Landlord receives a bona fide offer for less than the
Asking Price by any person or entity, Landlord shall provide
written notice to Tenant of such interested party and provide
Tenant with a copy of any such offer or contract detailing the
terms and conditions of the proposed sale (the "Offer"). For
thirty (30) days after receipt of such written notice, Tenant
shall have the right to elect to match or meet the Offer. In the
event Tenant shall elect to match or meet the Offer to purchase,
Tenant shall signify such election by written notice (the
"Notice") thereof served upon Landlord within such thirty day
period and thereafter the sale shall close within ninety (90)
days on the same terms and conditions as the Offer. This first
right of offer shall be a continuing right which shall be renewed
upon any change in the terms or conditions of the Offer. Any
provision of this First Right to the contrary notwithstanding,
provided that the Transferee (as hereinafter defined) agrees to
be (additionally) bound by the terms and conditions of this
Section, Landlord may transfer the Premises, in whole or in part,
without creating an obligation under this paragraph, to: (I) any
corporation into which or with which Landlord has merged or
consolidated; (ii) any parent, subsidiary, successor, or
affiliated corporation of Landlord; (iii) any partnership of
which more than seventy-five percent (75%) of the partnership
interest shall be owned by Landlord or the parent corporation of
Landlord, provided Landlord or such parent corporation is a
general partner; (iv) any shareholder or Landlord may transfer
his/her Landlordship interest to his/her spouse or issue (the
"Transferee").
29.25 LANDLORD'S PRO-RATA CONTRIBUTION. In consideration
for the performance by Xxxxxx of certain work in the Premises and
the timely fulfillment of all of the terms of this Lease, and in
addition to any other costs and expenses to be paid by Landlord,
Landlord shall pay Tenant the aggregate sum of One Million Two
Hundred Thousand Dollars ($1,200,000.00) towards the cost of
construction of Tenant's Work (the "Landlord's Pro-rata
Contribution"). Landlord shall disburse the Landlord's Pro-rata
Contribution to Tenant pursuant to the following schedule:
Fifteen percent (15%) upon Xxxxxx's receipt of necessary building
permits; twenty percent (20%) upon completion of footings; twenty
percent (20%) afterthe improvements are under roof; thirty
percent (30%) upon completion of paving and striping; and fifteen
percent (15%) upon receipt of certificate of occupancy, and a
final release of all liens and the completion of any punch list.
Not less than thirty (30) days prior to the making of any
advance, Tenant shall submit a "Request for Advance" on a
standard AlA Form G702 and G703 or a comparable form agreed upon
by the Landlord and Tenant, and a certificate of Tenant and its
contractor to the effect that (i) the construction to date of the
Tenant Work has been performed in a good and workmanlike manner
and in accordance with the Final Plans, (ii) the amount of the
Direct Costs incurred to complete construction to the applicable
stage of completion either has been paid by Tenant and/or is
justly due to the Tenant's contractor for work, labor or
materials furnished for the construction of the Tenant Work
insofar as actually incorporated therein. Landlord upon receipt
of the foregoing shall pay to Tenant, Xxxxxxxx's Pro-rata
Contribution. Landlord shall not be required to make advances
more frequently than once each month.
38
Tenant shall be responsible for any and all construction costs in
excess of the amount of Landlord's Pro-rata Contribution.
IN WITNESS WHEREOF, Landlord and Xxxxxx have caused this
Lease to be executed the day and date first above written.
TENANT:
XXXXXX'S RISTORANT ITALIANO, LLC an
Illinois limited liability Company
Date Executed:
By: /s/ Xxxxxx Xxxxxxx
Its: President
Date Executed: 2/28/01
LANDLORD:
NMA Fort Xxxxx, LLC, an Indiana
limited liability
company its Manager
By: /s/ Xxxxxx
Its: Managing Member
Date Executed: 2/28/01
39
Exhibit B
NOTICE OF LEASE TERM DATES
To: ___________________
Re: Lease effective February 27, 2001 between NMA Fort
Xxxxx, LLC, an Illinois limited liability company
("Landlord"), and BIAGGI'S RISTORANTE ITALIANO, LLC an
Illinois limited liability company ("Tenant")
concerning certain premises located at Jefferson
Pointe Shopping Center, Fort Xxxxx, Indiana.
Gentlemen:
In accordance with the referenced Lease (the "Lease"), we
wish to advise you and/or confirm as follows:
1. The Lease Term commenced on __________________ for a term of
Fifteen (15) years ending on ___________________, with Four (4)
Option terms of Five (5) years each.
2. Rent commenced to accrue on ______________________,in the
initial amount of $___________ per month for Base Rent, plus
Tenant's share of Joint Maintenance Common Areas Expenses and
certain other charges, as more particularly provided in the Lease.
3. If the Lease Commencement Date is other than the first
day of the month, the first billing will contain a pro rata
adjustment. Each billing thereafter, with the exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in the Lease.
4. Your rent checks should be made payable to Next Realty
MidAtlantic, LLC ____________________________ Chicago, Illinois
_______
42
LANDLORD:
NMA Fort Xxxxx, LLC, an
Illinois limited liability company
By: _____________________________
Its: ____________________________
Date Executed: __________________
Agreed to and Accepted as of
________________ 200
TENANT:
XXXXXX'S RISTORANTE ITALIANO,
LLC an Illinois limited
liability company
By: _____________________________
Its:_____________________________
Date Executed____________________
43
Exhibit C
FORM OF TENANT ESTOPPEL CERTIFICATE
To:
Re: Lease Pertaining to Jefferson Pointe Shopping
Center, Xxxxx County, Indiana (the "Project")
Ladies and Gentlemen:
The undersigned, as tenant ("Tenant"), hereby states
and declares as follows:
1. Tenant is the lessee under that certain lease (the
"Lease") pertaining to the Project which is dated
________________ 200 and under which the name of the original
Landlord was
2. The name of the current Landlord is:
_________________________________.
3. The Lease is for the following portion of the Project
(the "Demised Premises") (if the entire Project, so state):
4. The Lease has not been modified or amended except by
the following documents (if none, so state):
5. The initial term of the Lease commenced on
_____________________, 200 and shall expire on
___________________, ______,unless sooner terminated in
accordance with the terms of the Lease. Tenant has no option to
renew or extend the term of the Lease, except as follows (if
none, so state):
6. The Lease, as it may have been modified or amended,
contains the entire agreement of Landlord and Tenant with respect
to the Demised Premises, and is in full force and effect.
7. As of the date hereof, Tenant is occupying the Demised
Premises and is paying rent on a current basis under the Lease.
(a) The minimum monthly or base rent currently being
paid by Tenant for the Demised Premises pursuant to the terms of
the Lease is $______________ per month.
44
(b) Percentage rent ("Percentage Rent"), if any, due
under the Lease has been paid through __________________ and the
amount of Percentage Rent for the last period paid was
$________________
(c) Common area maintenance, taxes, insurance and
other charges (the "Reimbursables"), if any, due under the Lease
have been paid through __________________
8. Xxxxxx has accepted possession of the Demised Premises,
and all items of an executory nature relating thereto to be
performed by Landlord have been completed, including, but not
limited to, completion of construction thereof (and all other
improvements required under the Lease) in accordance with the
terms of the Lease and within the time periods set forth in the
Lease. Xxxxxxxx has paid in full any required contribution
towards work to be performed by Tenant under the Lease, except as
follows (if none, so state):
9. The Demised Premises shall be expanded by the addition
of the following space on the dates hereinafter indicated (if
none, so state):
10. No default or event that with the passage of time or
notice would constitute a default (hereinafter collectively a
"Default") on the part of Tenant exists under the Lease in the
performance of the terms, covenants and conditions of the Lease
required to be performed on the part of Tenant.
11. To the best of Xxxxxx's knowledge, no Default on the
part of Landlord exists under the Lease in the performance of the
terms, covenants and conditions of the Lease required to be
performed on the part of Landlord.
12. Tenant has no option or right to purchase all or any
part of the Project.
13. Tenant has not assigned, sublet, transferred,
hypothecated or otherwise disposed of its interest in the Lease
and/or the Premises, or any part thereof.
14. Neither the Lease nor any obligations of Tenant
thereunder have been guaranteed by any person or entity, except
as follows (if none, so state):
15. No hazardous substances are being generated, used,
handled, stored or disposed of by Tenant on the Demised Premises
or on the Project in violation of any applicable laws, rules or
regulations or the terms of the Lease.
16. No rentals are accrued and unpaid under the Lease,
except for Percentage Rent, if any, or Reimbursables, if any,
which are not yet due and payable.
17. No prepayments of rentals due under the Lease have been
made for more than one month in advance. No security or similar
deposit has been made under the Lease, except for the sum of
$____________, which has been deposited by Tenant with Landlord
pursuant to the terms of the Lease.
45
18. Tenant has no defense as to its obligations under the
Lease and asserts no setoff, claim or counterclaim against
Landlord.
19. Xxxxxx has not received notice of any assignment,
hypothecation, mortgage or pledge of Landlord's interest in the
Lease or the rents or other amounts payable thereunder, except as
follows (if none, so state):
20. Tenant understands and acknowledges that you are about
to make a loan to Landlord and receive as part of the security
for such loan (i) a Deed of Trust and Security Agreement
encumbering Landlord's fee interest in the Premises and the
rents, issues and profits of the Lease (the "Security
Instrument"), and (ii) an Assignment of Leases and Rents
("Assignment of Leases") which affects the Lease, and that you
(and persons or entities to whom the Security Instrument and/or
Assignment of Leases may subsequently be assigned) are relying
upon the representations and warranties contained herein in
making such loan. Further, Xxxxxx has received notice that the
Lease and the rent and all other sums due thereunder have been
assigned or are to be assigned to you as security for the
aforesaid loan secured by the Security Instrument. In the event
that you (or any person or entity to whom the Security Instrument
and/or Assignment of Leases may subsequently be assigned) notify
Tenant of a default under the Security Instrument or Assignment
of Leases and demand that Tenant pay its rent and all other sums
due under the Lease to you (or such future lender), Tenant shall
honor such demand without inquiry and pay its rent and all other
sums due under the Lease directly to you (or such future lender)
or as otherwise required pursuant to such notice and shall not
thereby incur any obligation or liability to Landlord.
21. The undersigned is authorized to execute this Tenant
Estoppel Certificate on behalf of Tenant.
22. This Tenant Estoppel Certificate may be executed in any
number of separate counterparts, each of which shall be deemed an
original, but all of which, collectively and separately, shall
constitute one and the same instrument.
Very truly yours,
TENANT:
By: _________________________
Name:________________________
Its:_________________________
Date Executed:_______________
46
Exhibit D
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (`Work Letter") is entered into
as of this 27th day of February, 2001, by and between NMA Fort
Xxxxx, LLC, an Illinois limited liability company ("Landlord"),
and XXXXXX'S RISTORANTE ITALIANO, LLC an Illinois limited
liability company ("Tenant").
RECITALS:
X. Xxxxxxxx and Xxxxxx have entered into a Lease (the
"Lease") dated as of the date hereof, covering certain premises
(the "Premises") more particularly described in the Lease. This
Work Letter is attached to the Lease as Exhibit D. Capitalized
terms not defined in this Work Letter shall have the meanings
given to such terms in the Lease.
B. In consideration of the mutual covenants contained in
the Lease and this Work Letter, Landlord and Tenant hereby agree
as follows:
1. Completion Schedule. Attached hereto as Schedule D-
1 is a schedule (the "Work Schedule") which sets forth a
time table for the planning and completion of the
"Landlord's Work" and the "Improvements", as defined below,
and for the installation of all furniture, trade fixtures
and equipment ("Tenant's FF&E") to be installed by Tenant
within the Premises and to be used in connection therewith.
The dates for performance set forth in the Work Schedule
shall be subject to extension for Force Majeure.
2. Tenant's Work. Reference herein to "Improvements"
shall mean a first-class, restaurant building (the
"Building") of not more than nine thousand four hundred
(9,500) square feet-of floor area and all related
improvements, including, without limitation, all other
improvements within the Premises, Tenant's FF&E, perimeter
sidewalks and landscaping, all signage for the Premises, a
trash enclosure for the Premises and the restoration of any
portions of the Common Areas of the Shopping Center
installed by Landlord which are damaged, altered or
affected by Xxxxxx's work and any and all improvements to
the Premises required to comply with the Outlot ECR other
than the Landlord's Work described below (collectively,
"Tenant's Work").
3. Landlord's Work. Landlord shall, at its sole cost
and expense, deliver the Premises to Tenant with a building
pad rough graded and compacted to the specifications set
forth in the Outlot ECR and Exhibit D-2 hereto. Further,
Landlord shall, at Xxxxxxxx's sole cost and expense, cause
to be extended to within five (5) feet of the property line
of the Premises, utilities, including water, electricity,
gas and sewer stubbed in ground; provided, however, Tenant
acknowledges that with
47
respect to certain of such utilities such as telephone and
electricity, Landlord will only provide the pipes or conduits as
it will be Tenant's responsibility as part of Tenant's electrical
contract to cause the extension of the actual utilities within
such pipes or conduits. All of the foregoing work to be performed
by Landlord, is hereinafter collectively referred to as
"Landlord's Work." The Premises shall otherwise be delivered in
an "AS-IS" condition. Tenant shall, at its sole cost and expense,
field verify the "AS-IS" condition of the Premises, extend from
the property line of the Premises, as necessary, and connect to
such underground utility facilities to provide such services as
may be necessary to complete Tenant's Work and install separate
meters. Tenant shall pay any hook-up or connection charges or
fees related to utilities serving the Premises.
4. Improvement Plans.
(a) The Contractor selected by Xxxxxx is approved.
(b) Preliminary Plans. In accordance with the Work
Schedule, Tenant shall cause its Contractor to prepare
and submit to Landlord and Jefferson two (2) copies of
preliminary plans and specifications and a site layout
for Tenant's Work which shall include a floor plan of
the Building to be constructed within Tenant's
Envelope and a general layout and description of
Tenant's FF&E (collectively, "Preliminary Plans").
"Tenant's Envelope" is generally depicted on Exhibit A-
2 to the Lease and shall be more particularly
established by Landlord and Tenant during the period
for the preparation and approval of Tenant's
Preliminary Plans. Landlord shall reasonably cooperate
with Tenant, at no cost to Landlord, in connection
with the preparation of such Preliminary Plans.
Included in the Preliminary Plans will be the proposed
location of Tenant's signs, the designation of
materials, colors and elevations, the designation of
the type and quality of the Improvements, a roof plan
and a preliminary landscape plan. Within the
applicable time period set forth in the Work Schedule
following Landlord's receipt of the Preliminary Plans,
Landlord shall review and approve or reasonably
disapprove the Preliminary Plans. Xxxxxxxx's approval
shall not be unreasonably withheld. If Landlord
disapproves the Preliminary Plans in whole or in part,
Landlord shall inform Tenant of the reasons for such
disapproval in writing and Tenant shall revise and
resubmit the Preliminary Plans within ten (10) working
days. Following Xxxxxx's revision and resubmittal to
Landlord of the Preliminary Plans, Landlord shall have
ten (10) working days to review and either approve or
disapprove the revised Preliminary Plans. In
accordance with the Work Schedule, the parties shall
48
repeat the review and approval procedure described herein until
they shall mutually agree on the Preliminary Plans.
(c) Submittal of Preliminary Plans. In accordance with the Work
Schedule, promptly following approval of the Preliminary Plans by
Landlord, Tenant shall, at its sole cost and expense, submit the
Preliminary Plans to the Planning Department of the City of Fort
Xxxxx ("Planning Department") for review and approval. Tenant
shall also, at its sole cost and expense, promptly prepare and
submit to the Planning Department any studies, drawings and other
documents or items and shall prepare and submit any revisions to
the Preliminary Plans which may be required by the Planning
Department in order tO obtain the Planning Department's approval
thereto; provided, however, that any revisions to the Preliminary
Plans submitted by Tenant shall be subject to Landlord's
approval, which approval shall not be unreasonably withheld. In
connection therewith, Xxxxxx shall deliver to Landlord any
proposed revision to the Preliminary Plans prior to Xxxxxx's
submission of same for approval by the Planning Department.
Within ten (10) days after receipt of any such proposed revision,
Landlord shall either approve same or deliver to Tenant its
specific objections thereto together with their proposect
solution to each objection; provided, however, that in the event
that Landlord fails to either object or accept such revisions
within ten (10) days, such failure shall be deemed acceptance of
such revision(s) by Landlord.
(d) Final Plans. In accordance with the Work Schedule, following
approval of the Preliminary Plans by Landlord and the Planning
Department, Tenant shall cause its Contractor to prepare and
deliver to Landlord and Xxxxxxxxx two (2) copies of final working
drawings and specifications for the Improvements based upon and
conforming in all respects to the approved Preliminary Plans (the
"Final Plans"). Within the applicable time period set forth in
the Work Schedule following Landlord's receipt of the Final
Plans, Landlord shall approve or reasonably disapprove the Final
Plans; provided, however, Landlord shall have no right to
disapprove the Final Plans to the extent they are consistent with
the Preliminary Plans approved by Landlord.
(e) Submittal of Final Plans. Promptly following Xxxxxxxx's
written approval of the Final Plans, Tenant, with the cooperation
of Landlord (but at no additional expense to Landlord), shall (I)
submit the Final Plans to the Planning Department and all other
appropriate governmental agencies and prepare and submit to the
same any applications, documents, studies, reports or other items
necessary to
49
obtain all approvals and permits required by law for
the construction of Tenant's Work, including, without
limitation, final grading permits and a building
permit for the Improvements (collectively, "Tenant's
Permits"); (ii) in all other respects diligently
pursue the obtaining of Tenant's Permits; (iii) pay
all necessary fees incidental to Tenant's Work; and
(iv) furnish Landlord such evidence thereof as is
reasonably satisfactory to Landlord. Xxxxxx agrees to
diligently and in good faith process any and all
applications required from the city, county and any
other governmental authority necessary to obtain
Tenant's Permits.
(f) Plan Approval. If Landlord objects to the
Preliminary Plans and/or the Final Plans or to any
aspect thereof, Landlord and Xxxxxx's design and/or
construction representatives shall, promptly after
Xxxxxx's receipt of Landlord's notice of objections,
meet and attempt in good faith to resolve Xxxxxxxx's
objections.
(g) Confidentiality. So long as this Lease is in
effect, Xxxxxxxx agrees to use Landlord's reasonable
efforts to keep the Final Plans with respect to
Tenant's Work confidential but shall have the right to
provide such plans to prospective Landlord's
purchasers, investors, lenders and consultants and as
may be required in any lawsuit or proceeding.
5. Construction of Tenant's Work. In accordance with the
Work Schedule, Tenant shall enter into a construction contract
(the "Construction Contract") with the Contractor, for the
construction of Tenant's Work in accordance with the Final Plans.
Tenant shall supervise the completion of such work and shall use
diligent efforts to secure completion of Xxxxxx's Work in a good
and workmanlike manner in accordance with the Final Plans, the
Construction Contract and the Work Schedule. Xxxxxx agrees to use
diligent efforts to cause construction of Xxxxxx's Work to
commence promptly following the issuance of Xxxxxx's Permits and
cause the completion of Tenant's Work in accordance with the Work
Schedule. Xxxxxxxx agrees to reasonably cooperate with Xxxxxx, at
no cost to Landlord, in connection to facilitate the construction
of Tenant's Work. At all times during the course of constructing
Tenant's Work, Landlord shall have the right to enter upon the
Premises to inspect Tenant's construction activities. Landlord
shall have the right, in its discretion, to require Tenant to
obtain a lien and completion bond or some alternate form of
security satisfactory to Landlord in an amount sufficient to
insure the lien-free completion of the Tenant Improvements and
naming Landlord as a co-obligee.
50
6. Installation of Tenant's FF&E. Following completion or
concurrently with the construction of Tenant's Work and in
accordance with the Work Schedule, Tenant shall cause the
Premises to be fully equipped with Tenant's FF&E in accordance
with the Final Plans.
7. Payment of the Construction Costs of the Improvements.
Tenant shall be responsible for all costs associated with
Xxxxxx's Work except as set forth in the Lease.
8. Miscellaneous Construction Covenants.
(a) Diligent Construction. Tenant will promptly,
diligently and continuously pursue construction of
Tenant's Work to successful completion in full
compliance with the Final Plans, the Construction
Contract, the Work Schedule and this Work Letter.
Landlord and Tenant shall cooperate with one another
during the performance of Xxxxxx's Work and Landlord's
Work to effectuate such work in a timely and
compatible manner.
(b) Compliance with Laws. Tenant will construct
Tenant's Work in a safe and lawful manner. Tenant
shall, at its sole cost and expense, comply with all
applicable laws and all regulations and requirements
of, and all licenses and permits issued by, all
municipal or other governmental bodies with
jurisdiction. Copies of all filed documents and all
permits and licenses shall be provided to Landlord.
Tenant shall notify Landlord in writing not less than
ten (10) days prior to the commencement of the
construction of any portion of the Improvements as to
name, telephone number and responsible party for each
and every contractor and/or subcontractor who is about
to commence work at the Premises.
(c) Indemnification. Landlord and Tenant agree that
their respective indemnities set forth in Section 10.1
of this Lease shall also apply with respect to any
acts or omissions of such parties or their respective
contractors, subcontractors, laborers, materialmen and
suppliers.
(d) Insurance. Construction of the Improvements shall
not proceed without Tenant first acquiring workers'
compensation and comprehensive general public
liability insurance and property damage insurance as
well as "All Risks" builders' risk insurance, with
minimum coverage of $5,000,000 or issued by an
insurance company meeting the requirements of the
Lease. Not less than thirty (30) days before
51
commencing the construction of Tenant's Work, certificates of
such insurance shall be furnished to Landlord or, if requested,
the original policies thereof shall be submitted for Landlord's
approval. All such policies shall provide that thirty (30) days
prior notice must be given to Landlord before modification,
termination or cancellation. All insurance policies maintained by
Tenant pursuant to this Work Letter shall name Landlord and any
lender with an interest in the Premises as additional insureds
and comply with all of the applicable terms and provisions of the
Lease relating to insurance. The Contractor shall be required to
maintain the same insurance policies as Tenant, and such policies
shall name Tenant, Landlord and any lender with an interest in
the Premises as additional insureds.
(e) Coordination of Labor. All of Landlord's and Xxxxxx's
contractors, subcontractors, employees, servants and agents must
work in harmony with and shall not interfere with any labor
employed by the other or its contractors.
(f) Coordination with Lease. Nothing herein contained shall be
construed as (i) constituting Tenant as Landlord's agent for any
purpose whatsoever, or (ii) a waiver by Landlord of any of the
terms or provisions of the Lease. Any default by Tenant or
Landlord with respect to any portion of this Work Letter shall be
deemed a breach of the Lease forwhich the non-defaulting party
shall have all the rights and remedies as in the case of a breach
of said Xxxxx.
(g) Approval of Plans. Landlord will not check Xxxxxx's drawings
for building code compliance. Approval of the Final Plans by
Landlord is not a representation that the drawings are in
compliance with the requirements of governing authorities, and it
shall be Tenant's responsibility to meet and comply with all
Federal, state, and local code requirements. Approval of the
Final Plans does not constitute assumption of responsibility by
Landlord or its architect for their accuracy, sufficiency or
efficiency, and Tenant shall be totally responsible for such
matters.
(h) Tenant's Deliveries. Tenant shall deliver to Landlord, at
least ten (10) days prior to the commencement of construction of
Tenant's Work, the following information:
(a) The names and addresses of the general, mechanical and
electrical contractors Tenant intends to engage in the
performance of Xxxxxx's Work;
52
(b) The date on which Xxxxxx's Work will commence, together
with the estimated dates of completion of Xxxxxx's
construction and fixturing work, and the date on which
Tenant expects to be ready to open for business in the
Building; and
(c) A copy of the fully executed Construction Contract.
(i)Qualification of Contractors. All contractors
engaged by Xxxxxx shall be bondable, licensed
contractors, possessing good labor relations,
capable of performing quality workmanship and
working in harmony with Xxxxxxxx' s general
contractor and other contractors on the job. All
work shall be reasonably coordinated with the
general Shopping Center work.
(j)Temporary Facilities During Construction.
Tenant shall provide and pay for all temporary
utility facilities and the removal of debris, as
necessary and required in connection with the
performance of Xxxxxx's Work. Storage of Tenant's
contractors' construction materials, tools,
equipment and debris shall be confined to the
Premises and in areas which may be reasonably
designated for such purposes by Landlord.
IN WITNESS WHEREOF, this Work Letter is executed as of the
date first written above.
TENANT:
XXXXXX'S RISTORANTE ITALIANO, LLC an
Illinois limited liability company
By:_____________________________
Its:____________________________
Date Executed:__________________
53
LANDLORD:
NMA FORT XXXXX, LLC, an Illinois
limited liability company
By:_____________________________
Its:____________________________
Date Executed:__________________
SCHEDULE D-1
WORK SCHEDULE
(Estimate)
1. Submittal to Landlord of name of Xxxxxx's Done
Contractor and Subcontractors
2. Xxxxxxxx's approval of Xxxxxx's Contractor Done
and Subcontractors
3. Landlord delivers graded pad Upon Lease execution
and Xxxxxxxx's closing
as purchase of Premises
4. Submittal of Preliminary Plans to Landlord 15 days following Lease
execution
5. Xxxxxxxx's approval of Preliminary Plans 10 days following receipt
of Preliminary Plans
6. Submittal of Preliminary Plans to City 5 days following Lease
execution
7. City approval of Preliminary Plans 30 days following
submission to City
8. Submittal of Final Plans to Landlord 10 days following City
approval of Preliminary
9. Xxxxxxxx's approval of Final Plans 10 days following receipt
of Final Plans
10. Submittal of Final Plans to City 2 days following Landlord's
approval
11. Enter into construction Contract 15 days following
Xxxxxxxx's approval
of the Final Plans
12. Completion of Tenant's Work On or before six (6)
and Installation of FF & E months from delivery
of possession of
Premises
55
EXHIBIT D-2
XXXXXXXX'S WORK PLANS
XXXXXXXX'S WORK: Site to be delivered with the following:
a. Landlord to provide Tenant with a rough graded and
compacted building pad to within 12" below the Finished
Floor Elevation (FFE) listed on Xxxxxxxxx'x Grading Plans.
Grading Tolerances within building pad and paved areas to
be plus three tenths (+.3") to minus two tenths (-.2") of a
foot.
b. All compaction shall be to 95% of the modified xxxxxxx dry
density. Landlord has provided Tenant with copies of
geotechnical tests or samples that are relative to the
Premises.
c. Water Service: Landlord shall provide one (1) eight inch
(8") Water Main to within five (5) feet inside of the
property line of the Premises.
d. Sanitary Service: Landlord shall provide one (1) six (6")
or eight (8") inch Sanitary Sewer Main to within five (5)
feet inside of the property line of the Premises from which
Tenant may tap and install necessary domestic and grease
trap waste lines.
e. Storm Sewer Service: Landlord shall provide Storm Sewer
Service to within five (5) feet inside of the property line
of the Premises from which Tenant may tap and install
required drainage lines.
f. Natural Gas Service: Landlord shall make natural gas
service available to within five (5) feet inside of the
property line of the Premises from which Tenant may tap and
install required Gas service lines.
g. Electrical Service: Landlord shall set an electrical
transformer to within five (5) feet inside of the property
line of the Premises from which Tenant shall arrange for
service installation to the building.
h. Telephone Service: Landlord shall make telephone service
available to within five (5) feet inside of the property
line of the Premises from which Tenant shall arrange for
service installation to the building.
56
i. Cable TV: Landlord shall make Cable Television service available
to within five (5) feet inside of the property line of the
Premises from which Tenant shall arrange for service
installation to the building.
2. TENANT'S WORK: Tenant shall comply with the Outlot ECR
including the Outlot Delivery exhibit attached thereto.
This shall include, but may not be limited to, the
following.
a. Tenant is responsible for its own site grading if altered
after acceptance hereof.
b. Tenant is responsible for its own building permit.
c. Tenant to secure its own full service liquor license.
d. Tenant shall be responsible for improvements on its site
per Landlord's to include but not limited to building,
sidewalks, building and site landscaping, paving, striping,
site lighting, irrigation, etc. Defined more thoroughly as
follows:
1. CIVIL/SITE WORK: Tenant shall provide Civil/Site work
plans based upon the Design Criteria to Xxxxxxxxx'x
Engineer for a review and approval process. No
Construction may proceed on the Premises prior to
receiving notification from Xxxxxxxxx'x engineer.
2. UTILITY PLAN: Tenant shall provide Utility Plans
showing water and sanitary service connections
designed to the City of Fort Xxxxx standards and any
other applicable local, state or federal standards as
well as the Design Criteria.
* Upon completion of installing any sanitary sewer
main, a twenty foot (20') Public Sanitary Sewer
Easement shall be filed with the City of Fort
Xxxxx.
* Tenant is responsible for contacting local phone,
electrical, cable and natural gas providers to
coordinate service locations.
Schematic location of these services must be
shown on plans.
3. PAVING PLAN: Tenant shall provide Paving Plans with
typical parking stall dimensions, location of handicap
stalls, dimensions of all driveways, aisles, and
islands. Plans shall also include spot elevations
sufficient to determine slope of all pavement
sections. Design must comply with the Design Criteria.
4. SITE LIGHTING PLAN: Tenant shall provide and install
the same type and style of fixture as Xxxxxxxxx has
throughout the entire Shopping Center. Design must
comply with the Design Criteria.
57
5. Landscape Plan: Tenant shall design landscaping to be
compatible with the overall landscape design concept of the
Shopping Center. Design must comply with the Design
Criteria.
58
Exhibit E
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxxx X. Xxxx
XXXXXX & XXXXX XXXX
000 Xxx Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
(Space Above For Recorder's Use)
MEMORANDUM OF LEASE AND FIRST RIGHT TO PURCHASE
THIS MEMORANDUM OF LEASE ("Memorandum") is made as of
_________________ 2001, by and between NMA FORT XXXXX, LLC, an
Illinois limited liability company ("Landlord") and XXXXXX'S
RISTORANTE ITALIANO, LLC an Illinois limited liability company
("Tenant"). Pursuant to that certain Lease by and between
Landlord and Xxxxxx dated even date herewith (the "Lease"),
Landlord has leased to Tenant that certain real property (the
"Property") described in Schedule 1 attached hereto and
incorporated herein by reference:
All the terms, conditions, covenants and agreements in the
Lease are incorporated into this Memorandum with the same force
and effect as if they were fully recited herein. The term of the
Lease is fifteen (15) years from and after the Lease Commencement
Date (as defined in the Lease) unless sooner terminated or
extended as provided in the Lease. Tenant has four (4) options to
extend the term of the Lease for periods of five (5) years each.
Pursuant to the Lease, Landlord has granted Tenant a "first
right of offer" to purchase the Premises based on the terms and
conditions set forth in the Lease.
In the event of any inconsistency between the terms of this
Memorandum and the terms of the Lease, the Lease shall control.
IN WITNESS WHEREOF, the parties have executed this
Memorandum as of the date first set forth above.
59
TENANT:
XXXXXX'S RISTORANTE ITALIANO, LLC
an Illinois limited liability company
By:/s/ Xxxx Xxxxxxxx
Its: President
Date Executed: 2-28-01
LANDLORD:
NMA Fort Xxxxx, LLC, an Illinois
limited liability company
By:/s/ Xxxxxx Xxxx
Its:Managing Member
Date Executed:2-28-01
STATE OF )
COUNTY OF )
On _________________________,before me,
_________________________, a Notary Public in and for said state,
personally appeared ________________________, 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.
WITNESS my hand and official seal.
My Commission Expires:
Notary Public in and for said County
_____________________________ and State
60
STATE OF )
COUNTY OF )
On ________________________, before me,
________________________, a Notary Public in and for said state,
personally appeared ________________________, 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.
WiTNESS my hand and official seal.
My Commission Expires:
Notary Public in and for said
County and State
This instrument prepared by Xxxxxxx X. Xxxx, Xxxxxx & Xxxxxxxxx,
000 Xxx Xxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000.
LEGAL DESCRIPTION
PARCEL 7
A TRACT OF LAND LYING SOUTHERLY OF THE SOUTHERLY RIGHT-OF-WAY LINE
OF ILLINOIS ROAD, LYING NORTHERLY OF THE NORTHERLY RIGHT-OF-WAY LINE
OF JEFFERSON BOULEVARD, ALSO KNOWN AS U. S. HIGHWAY NO. 24, AND LYING
EASTERLY OF THE WESTERLY LINE OF A PARCEL OF LAND AS DESCRIBED IN
DOCUMENT 91-055566, RECORDS OF XXXXX COUNTY, INDIANA ALL LOCATED IN
SECTION 8, TOWNSHIP 30 NORTH, RANGE 12 EAST OF THE 2ND P.M., XXXXX
COUNTY, INDIANA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF ILLINOIS
ROAD, SAIl) POINT BEING 75 FEET SOUTH OF THE NORTH LINE OF LOT NUMBER
12 IN XXXXXX'X SUBDIVISION OF LaGRO RESERVE IN SAID SECTION AND 159.99
FEET EAST OF THE WEST LINE OF SAID LOT NUMBER 12; THENCE ON ASSUMED
BEARING OF NORTH 90 DEGREES 00 MINUTES 00 SECONDS EAST ALONG SAID
SOUTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 491.28 FEET; THENCE AROUND
A CURVE IN A CLOCKWISE DIRECTION, ALONG SAID SOUTHERLY RIGHT-OF-WAY
LINE, HAVING A RADIUS OF 2789.93 FEET, AN ARC LENGTH OF 1048.80 FEET, A
DELTA ANGLE OF 21 DEGREES 32 MINUTES 20 SECONDS, A CHORD BEARING OF
SOUTH 79 DEGREES 13 MINUTES 50 SECONDS EAST AND A CHORD LENGTH OF
1042.64 FEET; THENCE SOUTH 63 DEGREES 26 MINUTES 20 SECONDS EAST ALONG
SAID SOUTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 68.40 FEET; THENCE
AROUND A CURVE IN A CLOCKWISE DIRECTION, ALONG SAID SOUTHERLY
RIGHT-OF-WAY LINE, HAVING A RADIUS OF 2789.93 FEET, AN ARC LENGTH OF
515.50 FEET, A DELTA ANGLE OF 10 DEGREES 35 MINUTES 12 SECONDS, A CHORD
BEARING OF SOUTH 61 DEGREES 45 MINUTES 34 SECONDS EAST AND A CHORD
LENGTH OF 514.77 FEET; THENCE SOUTH 49 DEGREES 13 MINUTES 20 SECONDS
EAST ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 158.80 FEET;
THENCE SOUTh 53 DEGREES 05 MINUTES 20 SECONDS EAST ALONG SAID
SOUTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 387.00 FEET; THENCE SOUTH 02
DEGREES 45 MINUTES 20 SECONDS EAST ALONG SAID SOUThERLY RIGHT-OF-
WAY LINE A DISTANCE OF 21.88 FEET TO THE TRUE POINT OF BEGINNING;
THENCE SOUTH 02 DEGREES 45 MINUTES 20 SECONDS EAST, ALONG ThE
NORTHERLY RIGHT-OF-WAY LINE OF WEST JEFFERSON BOULEVARD, A
DISTANCE OF 24.12 FEET; THENCE SOUTH 47 DEGREES 43 MINUTES 40 SECONDS
WEST, ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, A DISTANCE OF 343.30
FEET; THENCE NORTH 34 DEGREES 26 MINUTES18 SECONDS WEST, A DISTANCE
OF 221.26 FEET; THENCE NORTH 02 DEGREES 45 MINUTES 20 SECONDS WEST, A
DISTANCE OF 54.28 FEET; THENCE NORTH 87 DEGREES 14 MINUTES 40 SECONDS
EAST A DISTANCE OF 381.04 FEET TO THE TRUE POINT OF BEGINNING.
SAID TRACT CONTAINS A CALCULATED AREA OF 52,559.93 SQUARE FEET OR
1.21 ACRES MORE OR LESS.
