WAL-MART SHOPPING CENTER LEASE AGREEMENT
THIS LEASE is entered into as of the 1st day of July, 1996, by and between
Landlord and Tenant as hereinafter defined.
ARTICLE 1. DEFINITIONS AND CERTAIN BASIC PROVISIONS
1.1 (a) "Landlord": WAL-MART STORES, INC.
(b) Landlord's Address; 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
(c) "Tenant": Travel Network_
(d) Tenant's Address: 000 Xxxxxx Xxx
Xxxxxxxxx Xxxxxx, XX 00000
Phone: (000)000-0000
(e) Tenant's Trade Name: Vacation Central
(f) "Landlord's Agent": Xxxxxx Xxxx
(g) "Cooperating Agent": N/A
(h) "Demised Premises": Located in WAL-MART Supercenters with
store numbers, addresses and square footages as outlined in
Exhibit D attached hereto.
(i) Individual Location Lease Term: The term of this Lease as to
each of the Demised Premises shall be two (2) years,
beginning on the date as outlined in Exhibit D (the
"Commencement Date" and ending at midnight on the date
preceding the fifth anniversary of the Commencement Date
(hereinafter referred to as the "Termination Date");
provided that if the Commencement Date is a date other than
the first day of a calendar month , the Lease Term shall be
extended for said number of years and months in addition to
the remainder of the calendar month following the
Commencement Date. Tenant shall have the option to renew the
Lease in accordance with the provisions of Exhibit C.
References to the "Lease Term" shall refer to the original
term and any extensions or renewals thereof.
(j) Minimum Guaranteed Rental: Outlined in Exhibit D on an
individual store basis.
(k) [OMITTED]
(1) Common Area Maintenance Charge (CAM): Calculated at $2.00
times the square footage divided by 12 months per Section
6.4.
(m) Real Estate Tax Charge: Calculated at $.80 times the square
footage divided by 12 months per Section 18.2.
(n) Prepaid Rental: An amount equivalent to one month's rent (as
outlined in Exhibit D) being rent for the last month of the
Lease Term including appropriate Common Area Maintenance and
Real Estate Tax Charges, due upon execution of this Lease.
(o) Security Deposit: $ N/A.
(p) Permitted Use; Travel Related Services; however, Tenant may
not trade merchandise that conflicts with Landlord's
merchandise without Landlord's written approval.
1.2 Each of the foregoing definitions and basic provisions shall be
construed in conjunction with and limited by the references thereto in the other
provisions of this Lease.
ARTICLE II. GRANTING CLAUSE
2.1 In consideration of the obligation of Tenant to pay rent as herein
provided and in consideration of the other terms, covenants and conditions
hereof., Landlord hereby demises and leases to Tenant, and Tenant hereby takes
from Landlord, the Demised Premises as described in Section 1.1 (h), TO HAVE AND
TO HOLD said Demised Premises for the Lease Term specified in Section i.i (i),
and upon the the terms and conditions set forth in this Lease. Landlord further
agrees that if Tenant shall perform all of the covenants and agreements herein
required to be performed by Tenant, Tenant shall, subject to the terms of this
Lease, at all times during the continuance of this Lease have peaceful and quiet
possession of the Demised Premises.
NOTE: If this Lease provides for construction prior to occupancy, refer to
the appropriate exhibits attached hereto. In such case Article II above shall be
deemed modified to the extent inconsistent with such exhibits.
ARTICLE III. CONSTRUCTION AND ACCEPTANCE OF PREMISES
3.1 Tenant acknowledges having been afforded the opportunity to inspect the
Demised Premises to the fullest extent deemed necessary by Tenant, including but
not limited to inspection and testing for environmental conditions or hazards.
By occupying the Demised Premises, Tenant shall be deemed to have accepted the
same "as is" and to have acknowledged that the same comply fully with Landlord's
covenants and obligations hereunder.
3.2 If this Lease is executed before the Demised Premises becomes vacant,
or if any present tenant or occupant of the Demised Premises holds over, and
Landlord cannot acquire possession of the Demised Premises prior to the
Commencement Date of this Lease, as above defined, Landlord shall not be deemed
to be in default hereunder, and Tenant agrees to accept possession of the
Demised Premises at such time as Landlord is able to tender the same. Landlord
hereby waives the payment of rent covering any period prior to tender of
possession of the Demised Premises to Tenant hereunder.
3.3 In the event of the Landlord's desire to renovate, relocate and/or
expand any area, facility, prototype or appurtenance, Tenant and Landlord agree
upon thirty (30) days' written notice to coordinate all activities, including
but not limited to business termination date, construction start and completion
dates, milestone dates, relocation, business regrand opening, etc. In such
event, Landlord will utilize its best efforts to expeditiously pursue and
complete the Demised Premises in accordance with the host construction schedule.
Landlord will waive its rental requirements during the construction period and
will sustain, within reason as agreed, relocation expenses incurred by Tenant to
the new demised location. In no event will Landlord be responsible for "loss of
business", "lack of trade", or any other claim resulting out of host's desire to
improve the property.
ARTICLE IV. RENT
4.1 Rent shall be payable to Landlord in care of:
Wal-Mart Stores, Inc.
X.X. Xxx 000000
Xx. Xxxxx, XX 00000-0000
4.2 [OMITTED]
4.3 [OMITTED]
4.4 If this Lease should commence on a date other than the first day of a
calendar year or terminate on a date other than the last day of a calendar year,
Percentage Rental for such fractional part of the calendar year following the
Commencement Date or preceding the Termination Date, as the case may be, shall
be paid at the specified rate for all sales made during such fractional part of
a calendar year, after deducting from such Percentage Rental all payments of
Minimum Guaranteed Rental for such fractional period. Such Percentage Rental is
to be paid in monthly installments as provided in Section 4.3 with respect to
full calendar years.
4.5 [OMITTED]
4.6 In the event that the designation of a Percentage Rental rate in
Section 1.1 (k) of this Lease includes a breakpoint of Gross Sales (e.g., "5% of
Gross Sales over $100,000.00"), then (a) subsection (ii) in the first sentence
of Section 4.3 of this Lease shall be deemed to have been deleted and all other
formula references in Article IV adjusted accordingly; (b) the breakpoint shall
be divided by twelve for purposes of computing monthly Percentage Rental
installments in the second sentence of Section 4.3; and (c) during all periods
when Minimum Guaranteed Rentals are reduced (e.g., pursuant to Section 15.4 or
Section 16.2), the breakpoint shall be reduced proportionately.
4.7 It is understood that the Minimum Guaranteed Rental is payable on or
before the first day of the month (in accordance with Section 4.2) and
Percentage Rental, if any, is payable on or before, the tenth of each calendar
month, without offset or deduction of any nature. In the event any rental is not
received by the due date, it is agreed that the amount thus due shall bear
interest at the maximum contractual rate which could legally be charged in the
event of a loan of such rental to Tenant in the state where the Demised Premises
is located but in no event to exceed 1 1/2% per month, such interest to accrue
continuously on any unpaid balance due to Landlord by Tenant during the period
commencing with the aforesaid due date and terminating with the date on which
Tenant makes full payment of all amounts owing to Landlord at the time of said
payment. Any such increase shall be payable as additional rent hereunder, shall
not be considered as a deduction from Percentage Rental, and shall be payable
immediately on demand.
4.8 If Tenant fails in two (2) consecutive months to make rental payments
within ten (10) days after due, Landlord, in order to reduce its administrative
costs, may require by giving written notice to Tenant (and in addition to any
interest accruing pursuant to Section 4.6 above, as well as any other rights and
remedies accruing pursuant to Article XIX or Article XX, or any other term,
provision or covenant of this Lease), that Minimum Guaranteed Rentals are to be
paid quarterly in advance instead of monthly and that all future rental payments
are to be made on or before the due date by cash, cashier's check, or money
order, and that the delivery of Tenant's personal or corporate check will no
longer constitute a payment of rental as .provided in this Lease . Any
acceptance of a monthly rental payment or of a personal or corporate check
thereafter by Landlord shall not be construed as a. subsequent waiver of said
rights.
4.9 Tenant hereby acknowledges that Tenant ' s business reputation,
intended use of the Demised Premises, potential for payment of Percentage Rent
and ability to generate patronage to the Demised Premises and the Shopping
Center Were all relied upon by Landlord and served as significant and material
inducements contributing to Landlord's decision to execute this Lease with
Tenant. Tenant hereby covenants and agrees: (i) to operate in the Demised
Premises only under the trade name set forth in Section 1.1 (e) and under no
other name or trade name whatsoever without Landlord's prior written consent,
(ii) to continuously use, occupy and operate the whole of the Demised Premises
for the retail sale of its goods or services in accordance with its permitted
use set forth in Section 1.1 (p),. during the hours in which the Shopping Center
is open for business as designated by Landlord, and for no other purpose
whatsoever, and (iii) not to own, operate or be financially interested in,
either directly or indirectly (by itself or with others), a business like or
similar to the business permitted to be conducted hereunder, or which employs
the same or similar trade name, within a radius of three (3) miles of the
perimeter of the Shopping Center, except for those which Tenant has in operation
as of the date hereof. Without limiting Landlord's other available remedies, in
the event Tenant should violate this (iii) covenant, Landlord may, at its
option, (a) terminate this Lease upon thirty (30) days' written notice to
Tenant, (b) enjoin the operation of the violative store, or(c) include all Gross
Sales generated by any violative store as Gross Sales in calculating the
Percentage Rent due under this Lease.
ARTICLE V. SALES REPORTS AND RECORDS
5.1 [OMITTED]
5.2 Tenant shall keep in the Demised Premises or at some other location in
the city where the Demised Premises are located, a permanent and accurate set of
books and records of all sales of merchandise and revenues derived from business
conducted in the Demised Premises and all supporting records such as tax reports
and banking records. All such books and records shall be retained and preserved
for at least twenty-four (24) months after the end of the calendar year to which
they relate and shall be subject to inspection and audit by Landlord and its
agents at all reasonable times.
5.3 In the event Landlord is not satisfied with the statements of Gross
Sales submitted by Tenant, Landlord shall have the right to have its auditors
make a special audit of all books and records, wherever located, pertaining to
sales made in or from the Demised Premises. If such statements are found to be
incorrect to an extent of more than two percent (2%) over the figures submitted
by Tenant, Tenant shall pay for such audit. Tenant shall promptly pay to
Landlord any deficiency or Landlord shall promptly refund to Tenant any
overpayment, as the case may be, which is established by such audit.
ARTICLE VI. COMMON AREAS
6.1 The term "Common Area" is defined for all purposes of this Lease as
that part of the Shopping Center intended for the common use of all tenants,
including among other facilities (as such may be applicable to the Shopping
Center) parking area, private streets and alleys, landscaping, curbs, loading
area, floors, doors, side walks, food court, malls and promenades (enclosed or
otherwise), lighting facilities, drinking fountains, meeting rooms, public
toilets, and the like but excluding space in buildings (now or hereafter
existing) designed for rental or commercial purposes, as the same may exist from
time to time, and further excluding streets and alleys maintained by a public
authority. Landlord reserves the right to change from time to time the
dimensions and locations of the Common Area, as well as the identity and type of
any buildings in the Shopping Center. Tenant, and its employees and customers,
and when duly authorized pursuant to the provisions of this Lease, its
subtenants, licensees and concessionaires, shall have the nonexclusive right to
use the Common Area as constituted from time to time, such use to be in common
with Landlord, other tenants to the Shopping Center and other persons permitted
by Landlord to use the same, and subject to such reasonable rules and
regulations governing use as Landlord may from time to time prescribe, including
the designation of specific areas within the Shopping Center or in reasonable
proximity thereto in which automobiles owned by Tenant, its employees,
subtenants, licensees and concessionaires shall be parked. Tenant shall not
solicit business within the Common Area or take any action which would interfere
with the rights of other persons to use the Common Area. Landlord may
temporarily close any part of the Common Area for such periods of time as may be
necessary to make repairs or alterations to prevent the public from obtaining
prescriptive rights.
6.2 Tenant shall furnish to Landlord upon request a complete list of
license numbers of all automobiles operated by Tenant, its employees,
subtenants, licensees or concessionaires, and Tenant agrees that if any
automobile or other vehicles owned by Tenant or any of its employees,
subtenants, licensees or concessionaires shall at any time be parked in any part
of the Shopping Center other than the specified areas designated for employee
parking, Tenant shall pay to Landlord as additional rent upon demand an amount
equal to the daily rate or charge for such parking as established by Landlord
from time to time for each day, or part thereof, such automobile or other
vehicle is so parked. Landlord may from time to time substitute for any parking
area other areas reasonably accessible to Tenant, which areas may be elevated,
surface or underground.
6.3 Landlord shall be responsible for the operation, management, and
maintenance of the Common Area, the manner of maintenance and the expenditures
therefor to be in the sole discretion of Landlord.
6.4 In addition to rentals and other charges prescribed in this Lease,
Tenant shall pay to Landlord Tenant's proportionate share of the cost of
operation and maintenance of the Common Area (including, among other costs,
those for lighting, painting, cleaning, policing, inspecting, repairing and
replacing, and heating and cooling as described in Appendix B attached hereto)
which may be incurred by Landlord in its discretion, including a reasonable
allowance for Landlord's overhead costs and for depreciation of maintenance
equipment, and the costs of hazard insurance, but excluding general real estate
taxes, assessments, and depreciation of Landlord's original investment. The
proportionate share to be paid by Tenant of the cost of operation and
maintenance of the Common Area shall be computed on the ratio that the total
ground floor area of the Demised Premises bears to the total ground floor
leasable area in the Shopping Center; provided that, in no event shall such
share be less than the amount specified in Section 1.1 (l). Tenant shall make
such payments to Landlord on demand, at intervals not more frequent than
monthly. Landlord may at its option make monthly or other periodic charges based
upon the estimated annual cost of operation and maintenance of the Common Area,
payable in advance but subject to adjustment after the end of the calendar year
on the basis of the actual cost for such calendar year.
ARTICLE VII. USE AND CARE OF DEMISED PREMISES
7.1 The Demised Premises may be used only for the purpose or purposes
specified in Section 1.1 (p), and for no other purposes without the prior
written consent of Landlord. Tenant shall use in the transaction of business in.
the Demised Premises the trade name specified in Section 1.1 (e) and no other
trade name without the prior written consent of Landlord. Tenant shall not at
any time leave the Demised Premises vacant, but shall in good faith continuously
throughout the Lease Term conduct and carry on in the entire Demised Premises
the type of business for which the Demised Premises are leased. Tenant shall
operate its business in an efficient, professional and reputable manner so as to
produce the maximum amount of sales from the Demised Premises, and shall, except
during reasonable periods for repairing, cleaning, and decorating, keep the
Demised Premises open to the public for business with adequate personnel in
attendance on all days and during all hours (including evenings) established by
Landlord from time. to time as store hours for the Shopping Center, and during
any other hours when the Shopping. Center generally is open to the public for
business, except to the extent Tenant may be prohibited from. being open for
business by applicable law, ordinance or governmental regulation. In addition,
Tenant will conduct all business in conjunction with and abiding by Landlord's
philosophies, culture and standards.
7.2 In the event Landlord receives over five (5) customer service
complaints in any form (i.e., telephone, written, oral, etc.) per Tenant
location during a period of one (1) year. Tenant will reimburse Landlord, within
fifteen (15) days of notice of complaint, the amount of Fifty Dollars ($50.00)
per complaint for administrative services. Each one (1) year period will start
on January I and end December 31. Said charge is not to be construed as a remedy
to other action as called out in this Agreement but as an addition to any or all
remedies.
7.3 Tenant shall provide, at its sole expense, signage with a customer
service "Hot Line" notice including a 800 phone number and principle office
address. The signage shall be in a conspicuous location in full view of all
customers at all times the Shopping Center is open for business. Letters and
numbers are to be a minimum of four inches (4") in scale with a background color
which highlights the color of the characters. Signage is to be located in the
Demised Premises and to complement the surrounding decor.
7.4 Tenant shall not, without Landlord's prior written consent, keep
anything within the Demised Premises or use the Demised Premises for any purpose
which increases the insurance premium cost or invalidates any insurance policy
carried on the Demised Premises or other parts of the Shopping Center. All
property kept, stored or maintained within the Demised Premises by Tenant shall
be at Tenant's sole risk.
7.5 Tenant shall not conduct within the Demised Premises any "fire",
"bankruptcy", "going-out-of-business," "lost-our-lease," or similar sales or
operate within the Demised Premises a "wholesale" or "factory outlet" store, a
cooperative store, a "second hand" store, a "surplus" store or a store commonly
referred to as a "discount house". Tenant shall not permit any objectionable or
unpleasant odors to emanate from Demised Premises; nor place or permit any
radio, television, loudspeaker or amplifier on the roof or outside the Demised
Premises or where the same can be seen or heard from outside the building; nor
place any antenna, awning or other projection on the exterior of the Demised
Premises; nor take any other action which would constitute a nuisance or would
disturb or endanger other tenants of the Shopping Center or unreasonably
interfere with their use of their respective premises; nor do anything which
would tend to injure the reputation of the Shopping Center.
7.6 Tenant shall take good care of the Demised Premises and. keep the same
free from waste at all times. Tenant shall keep the. Demised Premises and
sidewalks, service-ways and loading areas adjacent to the Demised Premises neat,
clean and free from dirt or rubbish at all times. Receiving and delivery of
goods and merchandise and removal of garbage and trash shall be made only in the
manner and areas prescribed by Landlord. Tenant shall not operate an incinerator
or burn trash or garbage within the Shopping Center area.
7.7 Tenant shall maintain all display windows in a neat, attractive
condition and shall keep all display windows lighted during all business hours
as defined above.
7.8 Tenant shall include the address and indentity of its business
activities in the Demised Premises in all advertisements made by Tenant in which
the address and identity of any similar local business activity of Tenant is
mentioned.
7.9 Tenant shall procure at its sole expense any permits/and licenses
required for the transaction of business in the Demised Premises and otherwise
comply with all applicable laws, ordinances, and governmental regulations.
ARTICLE VIII. MAINTENANCE AND REPAIR OF DEMISED PREMISES
8.1 Landlord shall keep the foundation, the exterior walls, heating, air
conditioning and roof (except plate glass; windows, doors, door closure devices
and other exterior openings, window and door frames, molding, locks and
hardware; special storefronts; lighting, plumbing and other electrical,
mechanical, and electromotive installations, equipment and fixtures; signs,
placards, decorations or advertising media of any type; and interior painting or
other treatment of exterior walls) of the Demised Premises in good repair.
Landlord, however, shall not be required to make any repairs occasioned by the
act or negligence of Tenant or Tenants' agents, employees, subtenants, licensees
and concessionaires; and the provisions of the previous sentence are expressly
recognized to be subject to the provisions of Article XV and Article XVI of this
Lease. In the event that the Demised Premises should become in need of repairs
required to be made by Landlord hereunder, Tenant shall give immediate written
notice thereof to Landlord, and Landlord shall not be responsible in any way for
failure to make any such repairs until a reasonable time shall have elapsed
after receipt by Landlord of such written notice.
8.2 Tenant shall keep the Demised Premises in good, clean and habitable
condition and shall at its sole cost and expense keep the Demised Premises free
of insects, rodents, vermin and other pests and make all needed repairs and
replacements, including replacement of cracked or broken glass, except for
repairs and replacements required to be made by Landlord under the provisions of
Section 8.1, Article XV and Article XVI. Without limiting the coverage of the
previous sentence, it is understood that 'Tenant's responsibilities therein
include the repair and replacement of all lighting, plumbing and other
electrical, mechanical and electromotive installation, equipment and fixtures
and also include all utility repairs in ducts, conduits, pipes and wiring, and
any sewer stoppage located in, under or above the Demised Premises. If any
repairs required to be made by Tenant hereunder are not made within ten (10)
business days after written notice. delivered to Tenant by Landlord, Landlord
may at its option, make such repairs without liability to Tenant for any loss or
damage which, may result to its stock or business by reason of such repairs; and
Tenant shall pay to Landlord upon demand, as additional rent hereunder, the cost
of such repairs plus ten percent (10%) thereof as an administrative fee to
Landlord plus interest at the maximum lawful rate in the state where the Demised
Premises is located (but in no event to exceed 1 1/2% per month), such interest
to accrue continuously from the date of payment bv Landlord until repayment by
Tenant. At the expiration of this Lease, Tenant shall surrender the Demised
Premises in good condition, excepting reasonable wear and tear and losses
required to be restored by Landlord in Section 8.1, Article XV and Article XVI
of this Lease.
ARTICLE IX. ALTERATIONS
9.1 Tenant shall not make any alterations, additions or improvements to the
Demised Premises without the prior written consent of Landlord, except for the
installation of unattached, movable trade fixtures which may be installed
without drilling, cutting or otherwise defacing the premises. All alterations,
additions, improvements and fixtures (other than Tenant's unattached, readily
movable furniture and office equipment) which may be made or installed by either
party upon the Demised Premises shall remain upon and be surrendered with the
Demised Premises and become the property of Landlord at the termination of this
Lease, unless Landlord requests their removal in which event Tenant shall remove
the same and restore the Demised Premises to their original condition at
Tenant's expense.
9.2 All construction work done by Tenant within the Demised Premises shall
be performed in a good and workmanlike manner, in compliance with all
governmental requirements, and in such manner as to cause a minimum of
interference with other construction in progress and with the transaction of
business in the Shopping Center. Tenant agrees to indemnify Landlord and hold
Landlord harmless against any loss, liability or damage resulting from such work
and Tenant shall, if requested by Landlord, furnish a bond or other security
satisfactory to Landlord against any such loss, liability or damage.
ARTICLE X. LANDLORD'S RIGHT OF ACCESS: USE OF ROOF
10.1 Landlord shall have the right to enter upon the Demised Premises at
any time for the purpose of inspecting the same or of making repairs,
alterations or additions to adjacent premises, or of showing, the Demised
Premises to prospective purchasers, lessees or lenders.
10.2 Tenant will permit Landlord to place and maintain "For Rent" or "For
Lease" signs on the Demised Premises during the last ninety (90) days of the
Lease Term, it being understood that such signs shall in no way affect Tenant's
obligations pursuant to Section 7.3, Section 11.1, or any other provision of
this Lease.
10.3 Use of the roof above the Demised Premises is reserved to Landlord.
ARTICLE XI. SIGNS: STOREFRONTS
11.l Tenant shall not, without Landlord's prior written consent, which
shall not be unreasonably withheld or denied (a) make any changes to the
storefront or (b) install any exterior lighting, decorations, paintings,
awnings, canopies or the like or (c) erect or install any signs, window or door
lettering placards, decorations or advertising media of any type which can be
viewed from the exterior of the Demised Premises, excepting only dignified
displays of customary type of its display window. All signs, lettering,
placards, decorations and advertising media shall conform in all respects co the
sign criteria established by Landlord for the Shopping Center from time to time
in the exercise of its sole discretion, and shall be subject to the prior
written approval, of Landlord as to construction, method of attachment, size,
shape, height, lighting, color and general appearance. All signs shall be kept
in good condition and in proper operating order at all times at Tenant's
expense.
11.2 Subject to the restrictions of Section 11.1 above, Tenant agrees to
install and maintain a first-class sign on the front of the Demised Premises
during the Lease Term. At Tenant locations where the Demised Premises' entrance
and exit are to the outside of the Shopping Center, signage to be provided, and
installed by Tenant. At Tenant locations where the Demised Premises' entrance '
and exit are to the inside of the Shopping Center, signage to be provided and
installed by Landlord.
ARTICLE XII. UTILITIES
12.1 Landlord agrees to cause to be provided and maintained the necessary
mains, conduits and other facilities necessary to supply water, gas,
electricity, telephone service and sewerage service to the Demised Premises.
12.2 Landlord shall pay all charges for electricity, water, gas, and
sewerage service furnished to the Demised Premises. Tenant shall pay for
telephone service and other utility service.
12.3 Landlord shall not be liable for any interruption whatsoever in
utility services not furnished by Landlord nor for interruptions in utility
services furnished by Landlord which are due to fire, accident, strike, acts of
God or other causes beyond the control of Landlord or in order to make
alterations, repairs or improvements.
ARTICLE XIII. INDEMNITY AND PUBLIC LIABILITY INSURANCE
13.1 Landlord shall not be liable to Tenant or to Tenant's employees,
agents, or visitors, or to any other person whomsoever for any injury to person
or damage to property on or about the Demised Premises or the Common Area caused
by the negligence or misconduct of Tenant, its employees, subtenants, licensees
or concessionaires, or of any other person entering the Shopping Center under
express or implied invitation of Tenant, or arising out of the use of the
Demised Premises by Tenant and the conduct of its business therein, or arising
out of any breach or default by Tenant in the performance of its obligations
hereunder; and Tenant hereby agrees to defend, indemnify and. hold Landlord
harmless from any loss, expense, including reasonable attorney expenses, or
claims arising out of such damage or injury.
13.2 Tenant shall procure and maintain throughout the Lease Term a policy
or policies of insurance, at its sole cost and expense, insuring both Landlord
and Tenant against all claims, demands or actions arising out of or in
connection with Tenant's use or occupancy of the Demised Premises, the limits of
such policy or policies to be in an amount not less than $1,000,000.00 in
respect of injuries to or death of any one person, and in an amount not less
than $5,000,000.00 in respect of any one accident or disaster, and in an amount
not less than $1,000,000.00 in respect of property damaged or destroyed, and to
be written by insurance companies satisfactory to Landlord. In addition, Tenant
shall provide products liability and completed operations coverage in an amount
not less than $1,000,000.00. Tenant shall obtain a written obligation on the
part of each insurance company to notify Landlord at least ten (10) days prior
to cancellation of such insurance. Such policies or duly executed certificates
of insurance shall be promptly delivered to Landlord and renewals thereof as
required shall be delivered to Landlord at least thirty (30) days prior to
cancellation or the expiration of the respective policy terms of such insurance.
If Tenant should fail to comply with the foregoing requirements relating to
insurance, Landlord may obtain such insurance and Tenant shall pay to Landlord
on demand as additional rent hereunder the premium cost thereof plus ten percent
(10%) as an administrative fee to Landlord plus interest at the maximum
contractual rate (but in no event to exceed 1 1/2% per month) from the date of
payment by Landlord until repaid by Tenant.
13.3 Tenant agrees to maintain and keep in force, during the Lease Term,
all workers' compensation insurance required under applicable Worker's
Compensation Acts.
ARTICLE XIV. NON-LIABILITY FOR CERTAIN DAMAGES
14.1 Landlord and Landlord's agents and employees shall not be liable to
Tenant for any injury to person or damage to property caused by the Demised
Premises or other portions of the Shopping Center becoming out of repair or by
defect or failure of any structural element of the Demised Premises or of any
equipment pipes or wiring, or broken glass, or by the backing up of drains, or
by gas, water, steam, electricity or oil leaking, escaping or flowing into the
Demised Premises, nor shall Landlord be liable to Tenant for any loss or damage
that may be occasioned by or through the acts or omissions of other tenants of
the Shopping Center or of any other persons whomsoever, excepting only duly
authorized employees and agents of Landlord.
14.2 Tenant and its agent and employees shall not be liable to Landlord for
any injury to person or damage to property caused by the Demised Premises or
other portions of the Shopping Center becoming out of repair or by defect or
failure of any structural element of the Demised Premises or of any equipment,
pipes or wiring, or broken glass, or by the backing up of drains, or by gas,
water, steam, electricity or oil leaking, escaping or flowing into the Demised
Premises, nor shall Tenant be liable to Landlord for any losses or damage that
may be occasioned by or through the acts or omissions of other tenants of the
Shopping Center or of any other persons whomsoever, excepting only duly
authorized employees and agents of Tenant.
14.3 Landlord and Landlord's agents and employees shall not be liable to
Tenant or to Tenant's employees, agents or visitors, or to any other person
whomsoever, for any injury to person or damage to property on or about the
Demised Premises or the Common Area caused in whole or in part by the negligence
or misconduct os Tenant, its employees, subtenants, invitees, licensees or
concessionaires, or of any other person entering the Shopping Center under
express or implied invitation of Tenant, or arising out of the use of the
Demised Premises by Tenant or the conduct of its business therein, or arising
out of any breach or default by Tenant in the performance of its obligations
under this Lease; and Tenant hereby agrees to defend, indemnify and hold
Landlord harmless from any loss, expense or claim arising out of such damage or
injury.
14.4 Landlord and Tenant each hereby release the other from any and all
liability or responsibility to the other or to any other party claiming through
or under them by way of subrogation or otherwise, for any loss or damage to
property caused by a casualty which is insured under standard fire and extended
coverage insurance; provided, however, that this mutual waiver shall be
applicable only with respect to a loss or damage occurring during the time when
standard fire and extended coverage insurance policies contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair the policy or the right of the insured party to receive proceeds under
the policy.
ARTICLE XV. DAMAGES BY CASUALTY
15.1 Tenant shall give immediate written notice to Landlord of any damage
caused to the Demised Premises by fire or other casualty.
15.2 In the event that the Demised Premises shall be damaged or destroyed
by fire or other casualty insured under standard fire and extended coverage
insurance, and Landlord does not elect to terminate this Lease as hereinafter
provided, Landlord shall proceed with reasonable diligence, at its sole cost and
expense, to rebuild and repair the Demised Premises. In the event (a) the
Shopping Center shall be destroyed or substantially damaged by a casualty not
covered by Landlord's insurance or (b) the Shopping Center shall be destroyed
and untenantable to an extent in excess of fifty percent (50%) of the floor area
by a casualty covered by Landlord's insurance, or (c) the holder of a mortgage,
deed of trust or other lien on the Demised Premises at the time of the casualty
elects, pursuant to such mortgage, deed of trust or other lien, to require the
use of all or part of Landlord's insurance proceeds in satisfaction of all or
part of the indebtedness secured by the mortgage, deed of trust or other lien,
then Landlord may elect either to terminate this Lease or to proceed to rebuild
and repair the Demised Premises. Landlord shall give written notice to Tenant of
such election within sixty (60) days after the occurrence of such casualty, and
if it elects to rebuild and repair, shall proceed to do so with reasonable
diligence and at its sole cost and expense.
15.3 Landlord's obligation to rebuild and repair under this Article XV
shall in any event be limited to restoring the Demised Premises to substantially
the condition in which the same existed prior to such casualty, exclusive of any
alterations, additions, improvements, fixtures and equipment installed by Tenant
or Landlord's Work, as described in Exhibit B, if any, to substantially the same
condition in which the same existed prior to the casualty, as the case may be.
Tenant agrees that promptly after completion of such work by Landlord, Tenant
will proceed with reasonable diligence and at Tenant's sole cost and expense to
restore, repair and replace all alterations, additional improvements, fixtures,
signs and equipment installed by Tenant, all items of Tenant's Work as described
in Exhibit: B.
15.4 Tenant agrees that during any period of reconstruction or repair of
the Demised Premises, it will continue the operation of its business within the
Demised Premises to the extent practicable. At Landlord's sole discretion,
during the period from the occurrence of the casualty until Landlord's repairs
are completed, the Minimum Guaranteed Rental shall be reduced to such extent as
may be fair and reasonable under the circumstances.
15.5 Tenant will secure at Tenant's sole cost Property Insurance Coverage
normally covered in a Fire and Extended Coverage Policy. This coverage is to
provide coverage for Tenant's equipment, fixtures, alterations and improvements
and/or betterments. Loss of rents coverage shall also be included.
ARTICLE XVI. EMINENT DOMAIN
16.1 If more than thirty percent (30%) of the floor area of the Demised
Premises should be taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain or by
private purchase in lieu thereof, this Lease, shall terminate and the rent shall
be abated during the unexpired portion of this Lease, effective on the date
physical possession is taken by the condemning, authority.
16.2 If less than thirty percent (30%)of the floor area of the Demised
Premises should be taken as aforesaid, this Lease shall not terminate, however,
the Minimum Guaranteed Rental (but not Percentage Rental) is payable hereunder
during the unexpired portion of this Lease in proportion to the area taken,
effective on the date physical possession is taken by the condemning authority.
Following such partial taking, Landlord shall make all necessary repairs or
alterations to the remaining premises or, if an Exhibit B is attached hereto,
all necessary repairs or alterations within the scope of Landlord's Work as
described in Exhibit B, as the case may be required to make the remaining
portions of the Demised Premises an architectural whole.
16.3 If any part of the Common Area should be taken as aforesaid, this
Lease shall not terminate nor shall the rent payable hereunder be reduced,
except that either Landlord or Tenant may terminate .this Lease if the area of
the Common Area remaining following such taking plus any additional parking area
provided by Landlord in reasonable proximity to the Shopping Center shall be
less than seventy percent (70%) of the area of the Common Area immediately prior
to the taking. Any election to terminate this Lease in accordance with this
provision shall be evidenced by written notice of termination delivered to the
other party within thirty (30) days after the date physical possession is taken
by the condemning authority.
16.4 All compensation awarded for any taking (or the proceeds of private
sale in lieu thereof) of the Demised Premises or Common Area shall be the
property of Landlord, and Tenant hereby assigns its interest in any such award
to Landlord; provided, however, Landlord shall have no interest in any award
made to Tenant for Tenant ' s moving and relocation expenses or for the loss of
Tenant ' s fixtures and other tangible personal property if a separate award for
such items is made to Tenant.
ARTICLE XVII. ASSIGNMENT AND SUBLETTING
17.1 Notwithstanding the sale of franchises, Tenant shall not assign or in
any manner transfer this Lease or any estate or interest therein, or sublet the
Demised Premises or any part thereof, or grant any license, concession or other
right of occupancy of any portion of the Demised Premises without the prior
written consent of Landlord. Consent by Landlord to one or more assignments or
sublettings shall not operate as a waiver of Landlord's rights as to any
subsequent assignments and sublettings which will not be unreasonably withheld.
17.2 If Tenant is a corporation and if at any time during the Lease Term
the person or persons who own a majority of either the outstanding voting shares
or all outstanding shares of capital stock of Tenant at the time of the
execution of this Lease cease to own a majority of such shares (except as the
result of transfers by devise or descent), the loss of a majority of such shares
shall be deemed as assignment of this Lease by Tenant and therefore subject in
all respects to the provisions of. Section 17.1 above. The previous sentence
shall not apply, however, if at the time of the execution of this Lease, the
outstanding voting shares of capital stock of Tenant are listed on a recognized
security exchange or over-the-counter market.
17.3 Notwithstanding any assignment or subletting, Tenant and any guarantor
of Tenant's obligations under this Lease shall at all times remain fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under this Lease (even if future
assignments and sublettings occur subsequent to the assignment or subletting by
Tenant and regardless of whether or not Tenant's approval has been obtained for
such future assignments and sublettings). Moreover, in the event that the rental
due and payable by sublessee (or a combination of the rental payable under such
sublease plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this Lease or if with respect to a permitted
assignment, permitted license or other transfer by Tenant permitted by Landlord,
the consideration payable to Tenant by the assignee, licensee or other
transferee exceeds the rental payable under this Lease, then Tenant shall be
bound and obligated to pay Landlord all such excess rental and other excess
consideration within ten (10) days following receipt thereof by Tenant from such
sublessee, assignee, licensee or other transferee, as the case may be. Finally,
in any event of assignment or subletting, it is understood and agreed that all
rentals paid to Tenant by an assignee or sublessee shall be received by Tenant
in trust for Landlord, to be forwarded immediately to Landlord without offset or
reduction of any kind, and upon election by Landlord, such rentals shall be paid
directly to Landlord as specified in section 4.1 of this Lease (to be applied as
a credit and offset to Tenant's rental obligations.)
17.4 If this Lease is In fact a sublease, Tenant accepts this Lease subject
to all of the terms and conditions of the underlying Lease under which Landlord
holds the Shopping Center as lessee. Tenant covenants that it will do no act or
thing which would constitute a violation by Landlord of his obligation under
such underlying Lease; provided, however, that Tenant's agreement in this regard
is premised on Landlord's assurances to the effect that the terms of this Lease
do not violate such underlying Lease.
17.5 Tenant shall not mortgage, pledge or otherwise encumber its interest
in this Lease or in the Demised Premises.
17.6 In the event of the transfer and assignment by Landlord of its
interest in this Lease and in the Shopping Center to a person expressly assuming
Landlord's obligation under this Lease, Landlord shall thereby be released from
any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of Landlord for performance of such obligations. Any
security given by Tenant to secure performance of Tenant's obligations hereunder
may be assigned and transferred by Landlord to such successor in interest, and
Landlord shall thereby be discharged of any further obligation relating thereto.
ARTICLE XVIII. TAXES AND INSURANCE
18.1 Tenant shall be liable for all taxes levied against personal property
and trade fixtures placed by Tenant in the Demised Premises. If any such taxes
are levied against Landlord or Landlord's property, and if Landlord elects to
pay the same or if the assessed value of Landlord's property is increased by
inclusion of personal property and trade fixtures placed by Tenant in the
Demised Premises, and Landlord elects to pay the taxes based on such increase.
Tenant shall pay to Landlord upon demand that part of such taxes for which
Tenant is primarily liable hereunder.
18.2 Except as provided in Section 18.1, Landlord shall pay or cause to be
paid all general real estate taxes, general and special assessments, parking
surcharges and other governmental charges (hereinafter collectively referred to
as the "General Taxes") levied against the Shopping Center for each real estate
tax year. Tenant shall pay to Landlord in addition to the rentals and other
charges prescribed in this Lease, its proportionate share of all General Taxes
levied against the Shopping Center. The proportionate share which is
attributable to the Demised Premises during any lease/tax year shall be the
product of the aggregate of General Taxes times a fraction of the numerator of
which is the total square feet included in the Demised Premises and the
denominator of which is the total ground floor area in the Shopping Center;
provided that, in no event shall such share be less than the amount specified in
Section 1.1 (m). Tenant shall make such payments to Landlord on demand, at
intervals not more frequent than monthly. See Section 18.5 for payment rights.
18.3 If at any time during the Lease Term, a tax or excise on rents or
other tax however described (except any franchise, estate, inheritance, capital
stock, income or excess profits tax imposed upon Landlord) is levied or assessed
against Landlord by any lawful taxing authority on account of Landlord's
interest in this Lease or the rents or other charges reserved hereunder, as a
substitute in whole or in part, or in addition to the General Taxes described in
section 18.2 above, Tenant agrees to pay to Landlord upon demand, and in
addition to the rentals and other charges prescribed in this Lease, the amount
of such tax or excise. In the event any such tax or excise is levied or assessed
directly against Tenant, then Tenant shall be responsible for and shall pay the
same at such times and in such manner as the taxing authority shall require. See
Section 18.5 for payment rights.
18.4 Landlord shall pay or cause to be paid all the premiums for liability
insurance, fire and extended coverage insurance, or both, carried by Landlord
covering the Shopping Center (hereinafter referred to as "Insurance Premiums").
Tenant shall pay to Landlord upon demand, and in addition to the rentals and
other charges prescribed in this Lease, its proportionate share of all Insurance
Premiums for insurance insuring the Shopping Center. The proportionate share
which is attributable to the Demised Premises during any lease/insurance year
shall be the product of the aggregate of Insurance Premiums times a fraction of
the numerator of which is. the total square feet included in the Demised
Premises and the denominator of which is the total ground floor are in the
Shopping Center at the tine the Insurance Premiums are due. Tenant shall make
such payments to Landlord on demand, at intervals not more frequent than
monthly. See Section 18.5 for payment rights.
18.5 If at any time during the Lease Term Landlord has reason to believe
that at some time within the immediately succeeding twelve (12) month period
Tenant will owe Landlord a payment pursuant to one or more of the preceding
sections of this Article XVIII, Landlord may direct that Tenant prepay monthly a
prorata portion of the prospective future payment (i.e., the prospective future
payment divided by the number of months before the prospective future payment
will be due). Tenant agrees that any such prepayment directed by Landlord shall
be due and payable monthly on the same day that Minimum Guaranteed Rental is
due.
ARTICLE XIX. DEFAULT BY TENANT AND REMEDIES
19.1 The following events shall be deemed to be events of default by Tenant
under this Lease:
1) Tenant shall fail to pay any installment of rent or any other
obligations hereunder involving the payment of money and such failure
shall continue for a period of thirty (30) days after the date due .
(2) Tenant shall fail to comply with any term, provision or covenant of
this Lease other than as described in subsection (1) above and shall
not cure such failure within thirty (30) days after written notice
thereof to Tenant.
(3) Tenant or any guarantor of Tenant's obligations under this Lease shall
become insolvent, or shall make a transfer in fraud of creditors, or
shall make an assignment for the benefit of creditors.
(4) Tenant or any guarantor of Tenant's obligations under this Lease shall
file a petition under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof; or Tenant or any guarantor of
Tenant's obligations under this Lease shall be adjudged bankrupt or
insolvent in proceedings filed against: Tenant or any guarantor of
Tenant ' s obligations under this Lease thereunder.
(5) A receiver or trustee shall be appointed for the Demised Premises or
for all or substantially all of the assets of Tenant or. any guarantor
of Tenant's obligations under this Lease.
(6) Tenant shall desert or vacate or shall commence to desert or vacate
the Demised Premises or any substantial portion of the Demised
Premises or shall remove or attempt to remove, without the prior
written consent of Landlord, all or a substantial value of Tenant's
goods, wares, equipment, fixtures, furniture, or other personal
property.
(7) Tenant shall not do or permit to be done anything which creates a lien
upon the Demised Premises.
Upon the occurrence of any such events of default, Landlord shall have the
option to pursue either of the following alternative remedies:
A. Without any notice or demand whatsoever. Landlord may take any one or
more of the actions permissible at law to insure performance by Tenant
of Tenant's covenants and obligations under this Lease. In this
regard, it is agreed that if Tenant deserts or vacates the Demised
Premises, Landlord may enter upon and take possession of the Demised
Premises in order to protect them from deterioration and continue to
demand from Tenant the monthly rentals and other charges provided in
this Lease, without any obligation to relet; but that if Landlord
does, at its sole discretion, elect to relet the Demised Premises,
such action by Landlord shall not be deemed as an acceptance of
Tenant's surrender of the Demised Premises unless Landlord expressly
notifies Tenant of such acceptance in writing pursuant to Subsection B
of this Section 19.1. Tenant hereby acknowledges that Landlord shall
otherwise be reletting as Tenant ' s agent and Tenant furthermore
hereby agrees to pay to Landlord on demand any deficiency that may
arise between the monthly rentals and other charges provided in this
Lease and that actually collected by Landlord. It is further agreed in
this regard that in the event of any default described in Subsection
(2) of this Section 19.1, Landlord shall have the right to enter upon
the Demised Premises by force if necessary without being liable for
prosecution of any claim for damages therefor, and do whatever Tenant
is . obligated to do under the terms of this Lease; and Tenant agrees
to reimburse Landlord on demand for any expenses which Landlord may
incur in thus effecting compliance with Tenant's obligations under
this Lease; and Tenant further agrees that Landlord shall not be
liable for any damages resulting to Tenant from such action.
B. Landlord, may terminate this Lease by written notice to Tenant, in
which event Tenant shall immediately surrender the Demised Premises to
Landlord, and if Tenant fails to do so. Landlord may, without
prejudice to any other remedy which Landlord may have for possession
or arrearages in rent (including any interest which may have accrued
pursuant to Article IV of this Lease), enter upon and take possession
of the Demised Premises and expel or remove Tenant and any other
person who may be occupying said premises or any part thereof, by
force if necessary without being liable for prosecution or any claim
for damages therefor. Landlord agrees to provide ten (10) days written
notice and Tenant hasten (10) days to correct, modify and make whole
any obligation. Tenant hereby waives any statutory requirement of
prior written notice for filing eviction or damage suits for
nonpayment of rent. In addition, Tenant agrees to pay to Landlord on
demand the amount of all loss and damage which Landlord may suffer by
reason of any termination effected pursuant to this Subsection (7)B,
said loss and damage to be determined by either of the following
alternative measures of damage.
(i) Until Landlord is able, through reasonable efforts, the nature of
which efforts shall be at the sole discretion of Landlord, to
relet the Demised Premises, Tenant shall pay to Landlord on or
before the first day of each calendar month, the monthly rentals
and other charges provided in this Lease. After the Demised
Premises have been relet by Landlord, Tenant shall pay to
Landlord on the twentieth day of each calendar month the
difference between the monthly rentals and other charges provided
in this Lease for the preceding calendar month and that actually
collected by Landlord for such month. If it is necessary for
Landlord to bring suit in order to collect a deficiency, Landlord
shall have a right to allowsuch deficiencies to accumulate and to
bring an action on several or all of the accrued deficiencies at
one time. ' Any such suit shall not prejudice in any way the
right of Landlord to bring a similar action for any subsequent
deficiency or deficiencies. Any amount collected by Landlord from
subsequent tenants for any calendar month, in excess of the
monthly rentals and other charges provided in this Lease, shall
be credited to Tenant in reduction of Tenant's liability for any
calendar month for which the amount collected by Landlord will be
less than the monthly rentals and other charges provided in this
Lease; but Tenant shall have no right to such excess other than
the above described credit.
(ii) When Landlord desires. Landlord may demand a final settlement.
Upon demand for a final settlement, Landlord shall have a right
to, and Tenant hereby, agrees to pay, the difference between the
total of all monthly rentals, and Other charges provided in this
Lease for the remainder of the term and the reasonable rental
value of the Demised Premises for such period, such difference to
be discounted to present value at a rate equal to the rate of
interest which is allowed by law, in the state designated by
Section 27.10 of this Lease, when the parties to a contract have
not agreed on any particular rate of interest (or, in the absence
of such law, ac the rate of six percent (6%) per annum).
If Landlord elects to exercise the remedy prescribed in
subsection (7) A above, this election shall in no wav prejudice
Landlord's right at any time thereafter to cancel said election
in favor of the remedy prescribed in Subsection (7) B above,
provided that at the time of such cancellation Tenant is still in
default. Similarly, if Landlord elects to compute damages in the
manner prescribed by Subsection (7) B (i) above, this election
shall in no way prejudice Landlord's right at any time thereafter
to demand a final settlement in accordance with Subsection (7) B
(ii) above. Pursuit of any of the above remedies shall not
preclude pursuit of any other remedies prescribed in other
sections of this Lease and any other remedies provided by law.
Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default.
19.2 It is expressly agreed that in determining "the monthly rentals and
other charges provided in this Lease, "as that term is used throughout
Subsection (7) A and (7) B of Section 19.1 of the Lease, there shall be added to
the Minimum Guaranteed Rental (as specified in Section 1.1 (j) of this Lease) a
sum equal to the charges for maintenance of the Common Area (as specified ir
Section 6.4 of this Lease), the charges for taxes and insurance (as specified in
Article XVIII of the Lease) plus one twenty-fourth (1/24) of the total of all
percentage rentals required to be paid by Tenant (pursuant to Section 4.3 .and
4.4 of this Lease) because of Gross Sales during the two full calendar years
immediately preceding the date Landlord initiated action pursuant to said
subsection (or, if two full calendar years have not then elapsed, to the
corresponding fraction of all percentage rentals required to be paid because of
Gross Sales during the period commencing with the Commencement Date of this
Lease and concluding with the date on which Landlord initiated such action).
19.3 It is further agreed that, in addition to payments required pursuant
to Subsections (7) A and (7) B of Section 19.3 of this Lease, Tenant shall
compensate Landlord for all reasonable expenses incurred by Landlord in
repossession (including among other expenses, any increase in Insurance Premiums
caused by the vacancy of the Demised Premises), all expenses incurred by
Landlord in reletting (including among other expenses, repairs, remodeling,
replacements, advertisements and brokerage fees), all concessions granted to a
new tenant upon reletting (including among other concessions, renewal options),
all losses incurred by Landlord as a direct or indirect result of Tenant's
default (including among other losses, any adverse reaction by Landlord's
mortgagee or by other tenants or potential tenants of the Shoppins Center), and
a reasonable allowance for Landlord's administrative efforts, salaries and
overhead attributable directly or indirectly to Tenant's default and Landlord's
pursuing the rights and remedies provided herein and under applicable law.
19.4 Landlord may restrain or enjoin any breach or threatened breach of any
covenant, duty or obligation of Tenant, herein contained without the necessity
of or proving the inadequacy of any legal remedy or irreparable harm. The
remedies of Landlord hereunder shall be deemed cumulative and not exclusive of
each other.
19.5 If on account of any breach or default by Tenant in its obligations
hereunder. Landlord shall employ an attorney is present, enforce or defend any
of Landlord's rights or remedies hereunder. Tenant agrees to pay any reasonable
attorney's fees incurred by Landlord in such connection.
19.6 Landlord hereby acknowledges receipt from Tenant of the sum stated in
Section 1.1 (n), to be applied to the last accruing installment of rent.
Landlord further acknowledges receipt from Tenant of the sum stated in Section
1.1 (o) to be held by Landlord without interest as security for the performance
by Tenant of Tenant's covenants and obligations under this Lease, it being
expressly understood that such deposit may be commingled with Landlord ' s other
funds and is not an advance payment of rental or a measure of Landlord's damages
in case of default by Tenant. Upon the occurrence of any event of default by
Tenant, Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such funds to the extent necessary to
make good any arrears of rentals and any other damages, injury, expense or
liability caused to Landlord by such event or default, and Tenant shall pay to
Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. If Tenant is not then in default hereunder, any
remaining balance of such deposit shall be returned by Landlord to Tenant upon
termination of this Lease (subject to the provisions of Section 17.5).
ARTICLE XX. LANDLORD'S CONTRACTUAL SECURITY INTEREST
20.1 In addition to the statutory Landlord's Lien, Landlord shall have at
all times a valid security interest to secure payment of all rentals and other
sums of money becoming due hereunder from Tenant and to secure payment of any
damages or losses which Landlord may suffer by reason of the breach by Tenant of
any covenant, agreement or. condition contained herein, upon all goods, wares,
equipment, fixtures, furniture, improvements and other personal property of
Tenant presently, or which may. hereafter be, situated on the Demised .Premises,
and all proceeds. therefrom,, .and such property shall not be removed without
the consent of Landlord until all arrearages in rent as well as any and all
other sums of money then due to Landlord or to become due to Landlord hereunder
shall first have been paid and discharged and all the covenants, agreements and
conditions hereof have been. fully complied with and performed by Tenant. Upon
the occurrence of an event of default by Tenant, Landlord may, in addition to
any other remedies provided, enter upon the Demised Premises and take possession
of any and all goods, wares, equipment, fixtures, furniture, improvements and
other personal property of Tenant situated on the Demised Premises, without
liability for trespass or conversion, and sell the same at public or private
sale, with or without having such property at the sale, after giving Tenant
reasonable notice of the time and place of any public sale or of the time after
which any private sale is to be made, at which sale Landlord or its assigns may
purchase unless otherwise prohibited by law. Unless otherwise provided by law,
and without intending to exclude any other manner of giving Tenant reasonable
noticed the requirement of reasonable notice shall be met if such notice is
given in the manner prescribed in this Lease at least seven (7) days before the
time of sale. Any sale made pursuant to the provision of this paragraph shall be
deemed to have been a public sale conducted in a commercially reasonable manner
if held in the above described premises or where the property is located after
the time, and place and method of sale and a general description of the types of
property to be sold have been advertised in a daily newspaper published in the
county in which the property is located for five (5) consecutive days before the
date of the sale. The proceeds from any such disposition, less any and all
expenses connected with the taking of possession, holding and selling of the
property (including reasonable attorney's fees and legal expenses), shall be
applied as a credit against the indebtedness secured by the security interest
granted in this paragraph. Any surplus shall be paid to Tenant or as otherwise
required by law; Tenant shall pay any deficiencies forthwith. Upon request by
Landlord, Tenant agrees to execute and deliver to Landlord a financing statement
in form sufficient to perfect the security interest of Landlord in the
aforementioned property and proceeds thereof under the provision of the Uniform
Commercial Code (or corresponding state statute or statutes) in force in the
state in which the property is located, as well as any other state the laws of
which Landlord may at any time consider to be applicable.
20.2 Notwithstanding Section 20.1, Landlord agrees that it will subordinate
its security interest and Landlord's Lien to the security interest of Tenant's
supplier or institutional financial source, provided that Landlord approves the
transaction as being reasonably necessary for Tenant's operations at the Demised
Premises, and further provided that the subordination must be limited to a
specified transaction and specified items of the fixtures, equipment or
inventory involved in the transaction.
ARTICLE XXI. HOLDING OVER
21.1 In the event Tenant remaining in possession of the Demised Premises
after the expiration of this Lease and without the execution of a new lease, it
shall be deemed to be occupying the Demised Premises as a tenant from month to
month at a monthly rental rate equal to the current Minimum Guaranteed Rental
plus other charges (including any Percentage Rental) herein provided plus fifty
percent (50%) of such amount and otherwise subject to all the conditions,
provisions and obligations of this Lease insofar as the same are applicable to a
month to month tenancy.
ARTICLE XXII. SUBORDINATION AND ATTORNMENT
22.1 Tenant accepts this Lease subject and subordinate to any mortgage,
deed of trust or other lien presently existing or hereafter placed upon the
Demised Premises or the Shopping Center as a whole and to any renewals and
extensions thereof. Tenant agrees that any such mortgagee shall have the right
at any time to subordinate such mortgage, deed of trust or other lien to this
Lease; provided, however, notwithstanding that this Lease may be (or made to be)
superior to mortgage, deed of trust or other lien, the provisions of mortgage,
deed of trust or other lien relative to the rights of the mortgagee with respect
to proceeds arising from an eminent domain taking (including a voluntary
conveyance by Landlord) and/or arising from insurance payable by reason of
damage to or destruction of the Demised Premises shall be prior and superior to
any contrary provisions contained in this instrument with respect to the payment
or usage thereof. Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any mortgage, deed of trust or other lien
hereafter placed upon the Demised Premises or the Shopping Center as a whole,
and Tenant agrees upon demand to execute such further instruments subordinating
this Lease as Landlord may request; provided, however, that upon Tenant's
written request and notice to Landlord, Landlord shall use good faith efforts to
obtain from any such mortgagee a written agreement that the rights of Tenant
shall remain in full force and effect during the Lease Term as long as Tenant
shall continue to recognize and perform all of the covenants and conditions of
this Lease.
22.2 At any time when the holder of an outstanding mortgage, deed of trust
or other lien covering Landlord's interest in the Demised Premises has given
Tenant written notice of its interest in this Lease, Tenant may not exercise any
remedies for default by Landlord hereunder unless and until the holder of the
indebtedness secured by such mortgage, deed of trust or other lien shall have
received written notice of such default and a reasonable time for curing such
default shall thereafter have elapsed.
22.3 Tenant agrees that it will from time to time upon request by Landlord
execute and deliver to Landlord a written statement addressed to Landlord (or to
a party designated by Landlord), which statement shall identify Tenant and this
Lease, shall certify that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as so modified), shall confirm that Landlord, is not in default as to any
obligations of Landlord under this Lease (or if Landlord Is in. default,
specifying any default.), shall confirm Tenant's agreements contained above in
this Article XXII, shall confirm the Commencement and Termintion Dates of this
Lease, and shall contain such other information or confirmations as Landlord may
reasonably require. Landlord is hereby irrevocably appointed and authorized as
the agent and attorney-in-fact of Tenant to execute and deliver any such written
statement on Tenant's behalf if Tenant fails to do so within seven (7) days
after the delivery of a written request from Landlord to Tenant. Landlord may
treat such failure as an event of default.
22.4 Tenant shall attorn to and be bound to any of Landlord's successors
under all the terms, covenants and conditions of this Lease for the balance of
any remaining Lease Term.
ARTICLE XXIII. MERCHANTS ASSOCIATION
23.1 In the event that Landlord shall organize a merchants association
composed of tenants in the Shopping Center, Tenant agrees that it will join and
maintain membership in such association, will pay such dues and assessments as
may be fixed and determined from time to time by the association and will comply
with such other bylaws, rules and regulations as may be adopted from time to
time by the association.
ARTICLE XXIV. DIRECTION OF TENANT'S ENERGIES
24.1 Tenant acknowledges that Tenant's monetary contribution to Landlord
(in the form of rentals) and Tenant's general contribution to commerce within
the Shopping Center (also important in Landlord's determination to execute this
Lease with Tenant) will be substantially reduced if during the Lease Term,
either Tenant or any person, firm or corporation, directly or indirectly
controlling, controlled by or under common control with Tenant shall directly or
indirectly operate, manage, conduct or have any interest in any establishment
within commercial proximity of the Shopping Center. Accordingly, Tenant agrees
that during the Lease Term neither Tenant nor any person, firm or corporation,
directly or indirectly controlling, controlled by or under common control with
Tenant (and also, in the event Tenant is a corporation, if any officer or
director thereof or shareholder owning more than ten percent (10%) of the
outstanding stock thereof, or parent, subsidiary or related or affiliated
corporation) shall directly or indirectly operate, manage, conduct or have any
interest in any commercial establishment within three (3) miles of the Shopping
Center, except that any such commercial establishment existing at the date of
this Lease may continue to be operated, managed, conducted and owned in the same
manner as on the date of this Lease, provided there is no change in the size or
trade name of such commercial establishment.
ARTICLE XXV. NOTICES & CORRESPONDENCE
25.1 Wherever, any notice or correspondence is required or permitted
hereunder, such notice shall be in writing. Any notice or document required or
permitted to be delivered hereunder shall be deemed to be delivered when
actually received by the designated addressee or, if earlier and regardless of
whether actually received or not, when deposited in the United States Mail,
postage prepaid, Certified Mail, Return Receipt Requested, addressed to the
parties hereto at the respective addresses set out below:
LANDLORD: Wal-Mart Stores, Inc.
Attn: Property Management 8707
000 X. Xxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
TENANT: The Travel Network
Attn: Xxxxxxx Xxxxx
000 Xxxxxx. Xxx.
Xxxxxxxxx Xxxxxx, XX 00000
cc: Attorney Xxxxxx Xxxxxxxxxx
000 Xxx Xxxxxxx Xx.
Xxxxxxx, XX 115 01
or at such other addresses as they have theretofore specified by written notice.
25.2 If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord; if and when included within the term "Tenant", as used
in this instrument, there are more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address for the receipt of
notices and payments to Tenant. All parties included within the terms "Landlord"
and "Tenant", respectively, shall be bound by notices and payments given in
accordance with the provisions of this Article to the same effect as if each had
received such notice or payment.
ARTICLE XXVI. REGULATIONS
26.1 Landlord and Tenant acknowledge that there are in effect federal,
state, county and municipal laws, orders, rules, directives and regulations
(collectively referred to hereinafter as the "Regulations") and that additional
Regulations may hereafter be enacted or go into effect, relating to or affecting
the Demised Premises or the Shopping Center, and concerning the impact on the
environment of construction, land use, maintenance and operation of structures,
and conduct of business. Subject to the express rights granted to Tenant under
the terms of this Lease, Tenant will not cause, or permit to be caused, any act
or practice, by negligence, omission,, or otherwise, that would adversely affect
the environment, or do anything to permit anything to be done that would violate
any of said laws, regulations, or guidelines. Moreover, Tenant shall have no
claim against Landlord by reason of any changes Landlord may make in the
Shopping Center or the Demised Premises regulations or any charges imposed upon
customers or other invitees pursuant to same.
26.2 If by reason of any Regulations the payment to or collection by
Landlord of any rental or other charges (collectively ,referred to hereinafter
as "Lease Payments") payable by Tenant: to Landlord pursuant to the provisions
of this Lease is in excess of the amount permitted therefor by the Regulations
(the "Maximum Charge"), then Tenant, during the period when the Regulations
shall be in force and effect (the "Freeze Period") shall not be required to pay,
nor shall Landlord be permitted to collect, any sum in excess of the Maximum
Charge. Upon the earlier of (i) the expiration of the Freeze Period or (ii) the
issuance of a final order or judgment of a court of competent jurisdiction
declaring the Regulations to be invalid or not applicable to the provisions of
this Lease, Tenant, to the extent not then prescribed by law, and commencing
with the first day of the month immediately following, shall pay to Landlord as
additional rental, in equal monthly installments during the balance of the Lease
Term, a sum equal to the cumulative difference between the Maximum Charge and
the Lease Payments during the Freeze Period. If any provisions of this Section
26.2, or the application thereof, shall to any extent be declared to be invalid
and unenforceable, the same shall not be deemed to affect any of. the other
provisions of this Section 26.2 or of this Lease, all of which shall be deemed
valid and unenforceable to the fullest extent permitted by law.
ARTICLE XXVII. MISCELLANEOUS
27.1 Nothing herein contained shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it being
understood and, agreed that neither the method of computation of rent, nor any
other provision contained herein, nor any acts of the parties hereto, shall be
deemed to create any relationship between the parties hereto other than the
relationship of Landlord and Tenant.
27.2 Tenant shall not for any reason withhold or reduce Tenant's required
payments of rentals and other charges provided in this Lease, it being agreed
that the obligations of Landlord hereunder are independent of Tenant ' s
obligations except as may be otherwise expressly provided. In this regard it is
specifically understood and agreed that in the event Landlord commences any
proceedings against Tenant for nonpayment of rentals or any other sum due and
payable by Tenant hereunder. Tenant will not interpose any counterclaim or other
claim against Landlord of whatever nature or description in any such
proceedings; and in the event that Tenant interposes any such counterclaim or
other claim against Landlord in such proceedings. Landlord and Tenant stipulate
and agree that, in addition to any other lawful remedy of Landlord, upon motion
of Landlord, such counterclaim or other claim asserted by Tenant shall be
severed out of the proceedings instituted by Landlord. Landlord may proceed to
final judgment separately and apart from and without consolidation with or
reference to the status of such counterclaim or any other claim asserted by
Tenant.
27.3 The liability of Landlord to Tenant for any default by Landlord under
the terms of this Lease shall be limited to the proceeds of sale on execution of
the interest of Landlord in the Demised Premises; and Landlord shall not: be
personally liable for any deficiency, except that Landlord shall, subject to the
provisions of Section 17.5 hereof, remain personally liable to account to Tenant
for any security deposited hereunder. This clause shall not be deemed to limit
or deny any remedies which Tenant may have in the event of default by Landlord
hereunder, which do not involve the personal liability of Landlord.
27.4 Except as may be otherwise herein provided, in all circumstances under
this Lease where prior consent or permission of one party ("First Party"),
whether it be Landlord or Tenant, is required before the other party ("Second
Party") is authorized to cake any particular type of action, the matter of
whether to grant such consent or permission shall be within the sole and
exclusive. judgment and discretion of the First Party; and it shall not
constitute any nature of breach by the First Party hereunder or any defense to
the performance of any covenant, duty or obligation of the Second Party
hereunder that the First Party delayed or withheld the granting of such consent
or permission, whether or not the delay or withholding of such consent or
permission was, in the opinion of the Second Party, prudent or reasonable or
based on good cause.
27.5 One or more waivers of any covenant, term, or condition of this Lease
by either party shall not be construed as a waiver of a subsequent breach of the
same covenant, term or condition. The consent or approval by either party to or
of any act by the other party requiring such consent or approval shall not be'
deemed to waive or render unnecessary consent to or approval of any subsequent
similar act.
27.6 Whenever a period of time is herein prescribed for action to be taken
by Landlord, Landlord shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations or restrictions or any other causes of any kind whatsoever
which are beyond the reasonable control of Landlord.
27.7 The laws of the state in which the Demised Premises are located shall
govern the interpretation, validity, performance and enforcement of this Lease.
If any provision of this Lease should be held to be invalid or unenforceable,
the validity and enforceability of the remaining provisions of this Lease shall
.not be affected thereby. Venue, for any action under this Lease, shall be the
county in which rentals are due pursuant to Section 4.1 and Section I.I of this
Lease.
27.8 The captions used herein are for convenience only and do not limit or
amplify the provisions hereof.
27.9 Whenever here the singular number is used, the same shall include the
plural, and words of any gender shall include each other gender.
27.10 The terms, provisions and covenants contained in this Lease shall
apply to, inure to the benefit of and be binding upon the parties hereto and
their respective heirs, successors in interest and legal representatives except
as otherwise herein expressly provided.
27.11 This Lease contains the entire agreement between the parties, and no
agreement shall be effective to change, modify or terminate this Lease in whole
or in part unless such is in writing and duly signed by the party against whom
enforcement of such change, modification or termination is sought. Landlord and
Tenant hereby acknowledge that they are not relying on any representation or
promise of the other, or of the Agent or Cooperating Agent, except as maybe
expressly set forth in this Lease. Oral agreements in conflict with any of the
terms of this Lease shall be without force and effect.
27.12 This Lease consists of twenty-seven (27) Articles and ____ attached
pages, including Exhibits A through E (any space left blank will be deemed to
have been completed with the word "none"). With the exception of Article VI, in
the event any provision of an Exhibit or other attached page shall be
inconsistent with a provision in the body of the Lease, the provision as set
forth in the Exhibit shall be deemed to control.
27.13 Notwithstanding anything herein to the contrary, it is specifically
agreed between Landlord and Tenant that if Tenant's quality of merchandise,
method of operation or merchandise variety is not sufficient in the sole
discretion of Landlord, then Landlord shall give Tenant written notice of the
deficiencies and Tenant shall have thirty(30) days to correct the deficiencies,
and if the deficiencies are not corrected in the sole discretion of Landlord,
then Landlord may cancel this Lease by giving Tenant ten (10) days notice to
vacate the Demised Premises within which time Tenant shall vacate the premises
and Landlord shall also have the right, but not the obligation, to purchase from
Tenant all or some of the following:
A. The leasehold improvements made by Tenant Upon the Demised Premises at
book value less straight-line depreciation based on a ten (10) year
life; and
B. Any of the merchandise, equipment, furniture or fixtures of Tenant
located upon. the Demised Premises at Tenant's net invoice cost,
provided that Tenant shall. be required to substantiate said net
invoices. In the event Landlord elects to terminate the Lease and
exercise, the right, to purchase from Tenant any of .the items set
forth above, all inventory of all improvements, merchandise,
equipment, furniture or fixtures (hereinafter referred to as "Goods")
to be purchased by Landlord shall be made thirty-one (31) days
following the date of Landlord's notice of termination. The inventory
shall be pursuant to inventory procedures mutually agreed upon by the
parties hereto. The cost of the inventory shall be borne by Landlord.
Landlord shall not accept, purchase, nor include in inventory the
following:
1. Any merchandise which has been repackaged or is not in its
original container.
2. Any merchandise which is discolored, opened or has its packaging
defaced in any manner.
3. Any equipment, furniture or fixtures which is damaged and
unusable.
4. Support facilities and systems.
5. Valuation.
27.14 Notwithstanding anything herein to the contrary. Tenant agrees to the
cancellation of this Lease and agrees to vacate the Demised Premises, on the
date the Shopping Center ceases doing business in and at that location.
27.15 Notwithstanding anything herein to the contrary, it is further agreed
and understood that Landlord shall have the option for one hundred and twenty
(120). days prior to the expiration of the Lease Term to terminate the Lease.
Landlord may exercise this option by giving Tenant written notice of termination
pursuant to Article XXV of this Lease. If Landlord exercises this option, it
shall also have the right but pot the obligation to purchase from Tenant all or
some of the following.
A. The leasehold improvements made by Tenant upon the Demised Premises
at: book value less straight line depreciation based on a ten(10) year
life, and
B. Any of the merchandise, consumable supplies, equipment, furniture or
fixtures of Tenant located upon the Demised Premises at Tenant's net
invoice cost. Landlord shall also pay Tenant an amount equal to three
percent (3%) of Tenant's Gross Sales for the twelve (12) month period
preceding Landlord's exercise of this option. If Tenant has not been
in operation for a twelve-month period, Landlord will pay three
percent (3%) of the Gross Sales for the period Tenant has been in
operation. In the event Landlord elects to terminate the Agreement and
exercise the right to purchase, from Tenant any of the' items set
forth above, all inventory of all improvements, merchandise,
equipment, furniture or fixtures (hereinafter referred to as "Goods")
to be purchased by Landlord shall be made thirty-one (31) days
following the date of Landlord's notice of termination. The inventory
shall be pursuant to inventory procedures mutually agreed upon by the
parties hereto. The cost of the inventory shall be borne by Landlord.
Landlord shall not accept, purchase, nor include in inventory the
following:
1. Any merchandise which has been repackaged or is not in its
original container.
2. Any merchandise which is discolored, opened or has its packaging
defaced in any manner.
3. Any equipment, furniture or fixtures which is damaged and
unusable.
4. Support facilities and systems.
5. Valuation.
The transfer of Goods shall take place on the Inventory Date, and the Xxxx
of Sale shall bear that date. Payment for the Goods, however, shall not be made
earlier than thirty-one (31) days thereafter in conformity with the provisions
of the Bulk Sales Act (which date shall hereinafter be referred to as the
"Closing Date").
The purchase price shall be used first to pay all creditors of Tenant ' s
current business operation on the Demised Premises. The balance of the purchase
price shall be paid to Tenant. If the purchase price is insufficient to pay all
creditors, all secured creditors shall be paid in full, then all unsecured
creditors shall receive a prorata share of the balance. Tenant shall be
responsible for any and all debts in excess of the purchase price, and Landlord
shall take the Goods free of same.
Pursuant to the provisions of the Bulk Sales Act, Landlord shall have the
right to withhold such payment and deliver same or portions thereof to those
individuals entitled thereto as set forth on the Bulk Sales Transfer Form
(hereinafter "Form"). Tenant shall prepare and provide to Landlord such Form and
list thereon all of its existing creditors, including each creditor's name,
address and the amount owed, if known. Such Form shall also, contain the name
and address of all persons known to Tenant to assert claims against it even
though such claims are disputed. In addition, the Form shall be dated, signed by
Tenant and notarized. Further, Landlord and Tenant shall prepare a Schedule of
Goods Transferred (the "Schedule") which contains information sufficient to
identify said Goods. Landlord must preserve the Form and Schedule for six (6)
months following the transfer and permit inspection of either or both and
copying therefrom at all reasonable hours by any creditor of Tenant. In
addition. Landlord shall provide written .notice of this transfer to each listed
creditor of Tenant in compliance with he State Bulk Sales Laws. If Landlord
exercises its option to terminate the Lease, Tenant agrees that it will, prior
to the date it vacates the Demised Premises, take whatever steps are necessary
to have the telephone number for the Demised Premises transferred by the local
telephone company from its name to that of Landlord.
EXECUTED AS OF THE DATE HEREINABOVE STATED.
WITNESS: LANDLORD: WAL-MART STORES, INC.
Title: Director Wal-Mart Realty
/s/ /s/
------------------------- ----------------------------------
WITNESS: TENANT:/S/
---------------------------
/s/ TRAVEL NETWORK. LTD.
------------------------- ----------------------------------
XXXXXXXXX X. XXXXXXXX Title: President 7/17/96
--------------------------
EXHIBIT A*
CONSTRUCTION AND ACCEPTANCE OF DEMISED PREMISES
1. Subject to the provisions below. Landlord agrees that it will proceed to
construct a store unit upon the Demised Premises as shown and outlined on the
plan attached hereto as Exhibit D, in compliance with the "Description of
Landlord's Work" in Exhibit B attached hereto, with such minor variations as
Landlord may deem advisable, and tender the Demised Premises to Tenant. The
Demised Premises shall be deemed to be "ready for occupancy" when Landlord's
Work on the Demised Premises as described in Exhibit B (except for minor
finishing jobs) has been substantially completed. If Landlord should for any
reason fail to complete such work prior to the Estimated Completion Date,
Landlord shall not be deemed to be in default hereunder or otherwise liable in
damages to Tenant, nor shall the Lease Term be affected, except that if for any
reason the Demised Premises are not ready for occupancy within eighteen (18)
months following the Estimated Completion Date, Tenant may, at its option,
cancel and terminate this Lease by written notice to Landlord delivered within
thirty (30) days following the expiration of such eighteen (18) month period, in
which event neither party shall have any further liabilities or obligations
hereunder, except that Landlord shall repay to Tenant any prepaid rent or
security deposit. When the Demised Premises are ready for occupancy (which,
unless Tenant objects and Wal-Mart Staff Architect or General Contractor fails
to certify to the date selected by Landlord, shall be the date Landlord delivers
to Tenant the keys for the Demised Premises with a statement to the effect that
they are ready for occupancy), Tenant agrees to accept possession thereof and to
proceed with due diligence to perform the work described under "Description of
Tenant's Work" in Exhibit B, and to install its fixtures, furniture and
equipment. In the event of any dispute as to work performed or required to be
performed by Landlord or Tenant, the certificate of Wal-Mart Staff Architect or
General Contractor shall be conclusive. By occupying the Demised Premises,
Tenant shall be deemed to have accepted the same and to have acknowledged that
the same fully comply with Landlord's covenants and obligations hereunder.
2. Tenant agrees to-open the Demised Premises to the public simultaneously
with the host "Soft Opening". Soft opening is defined as the first day the host
will be open to the: public and will be termed "Commencement Date". The premises
will be ready for occupancy during the construction period. Landlord and Tenant
each agree that prior to the Commencement Date, (termed "Possession Date") to
execute and deliver a recordable short form lease containing the basic
provisions of this Lease, acknowledging that Tenant has accepted possession, and
reciting the exact Commencement Date and Termination Date of this Lease.
3. Tenant agrees to participate in a joint opening of the Shopping Xxxxxx
if requested to do so by Landlord.
4. Landlord shall not be obligated to proceed with construction on the
Demised Premises unless and until financing acceptable to Landlord is obtained.
Unless commitments for such financing satisfactory to Landlord have been
obtained and all conditions to such commitments (other than construction of the
shopping Center) shall have been fulfilled within twelve (12} months following
the Estimated Completion Date, Landlord may so notify Tenant in writing within
thirty (30) days following the expiration of such twelve (12) month period, and
this Lease shall thereupon cease and terminate and each of the parties hereto
shall be released and discharged from any and all liability and responsibility
hereunder. If Landlord can obtain financing only upon the basis of modification
of the terms and provisions of this Lease, Landlord shall have the right to
cancel this Lease if Tenant refuses to approve in writing any such modification
within the fifteen (15) days after Landlord's request therefor. If such right to
cancel is exercised, this Lease shall thereafter be null and void, any security
deposited hereunder shall be returned to Tenant, and neither party shall have
any liability to the other by reason of such cancellation.
* To be attached to Shopping Center Lease, and to be incorporated
and made a part: thereof if said agreement provides for a
building to be constructed by Landlord for Tenant.
INITIALED:
LANDLORD /S/
---------------------
TENANT /S/
---------------------
EXHIBIT B
STORE CONDITION
Wal-Mart Shopping Center License Agreement will deliver the location, tile
floor, painted walls, recess lighting and store gate* Electricity and telephone
are the responsibility of Tenant.
EXHIBIT C
RENEWAL OPTION
Tenant is granted the option (s) to extend the term of this Lease for One
(1) consecutive term of Three (3) years followed by One (1) consecutive term of
Five (5) years, provided (a) Tenant is not in default at the time of exercise of
the respective option, (b) Tenant gives written notice, pursuant to Article XXV
of this Lease, of its exercise of the respective option at least one hundred
eighty (180) days prior to the expiration of the original Lease Term or the
expiration of the then existing term and (c) Landlord does not elect to buy out
Tenant pursuant to Section 27.15 of the Lease. Each extension term shall be upon
the same terms, conditions and rentals, except (i) Tenant shall have no further
right of renewal after the last of the extension terms prescribed above and (ii)
the monthly Minimum Guaranteed Rental and other charges shall be as set out
below.
INITIALED:
LANDLORD /S/
---------------------
TENANT /S/
---------------------
WAL*MART
-------------------------------------------------------------------------------
WAL-MART STORES. INC. - 000 XXXXX XXXXXX XXXX. - XXXXXXXXXXX,XX 00000
August 21,19S6
Xxxxxxx Xxxxx
Travel Network
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx, XX 00000
Dear Xxxxxxx,
This is to clarify that in Exhibit C of the lease between Wal-Mart Stores Inc,
and Travel Network, LTD Renewal Option 1 pertains to years 3,4 and 5 of the
lease. Renewal Option 2 pertains to years 6,7,8,9,and 10 of the lease.
Please contact me with any questions you may have.
/s/ Xxxxxx Xxxx
DeniseWest
Leasing Manager
WAL-MART SUBLEASE AGREEMENT
---------------------------
TRAVEL NETWORK, LTD
LICENSE AGREEMENT
SUBLEASE AGREEMENT
------------------
THIS SUBLEASE made as of this ___ day of___________, 19__ ("Sublease"), by
and between Travel Network, Ltd., a New Jersey corporation having its office at
000 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000 (hereinafter "Sublessor"),
and _______________________, having his/her principal residence at
_______________ _______________(hereinafter "Sublessee"):
1. Sublease:
--------
(a) This Sublease is subject to and subordinate in all respects to the
Wal-Mart Shopping Center Lease Agreement (hereinafter "Head Lease") heretofore
entered into between the Sublessor herein as the Lessee and Wal-Mart Stores,
Inc., as the Lessor, a copy of which Head Lease in is attached hereto as Exhibit
"A"; and by this reference made a part hereof as if fully set forth herein.
(b) Sublessee agrees that nothing herein contained shall be deemed to grant
Sublessee any rights which would conflict with any of the covenants and
conditions of said Exhibit "A" and Sublessee agrees that he/she will do nothing
in, on or about the demised premises or fail to do anything which would result
in a breach of Sublessor of its undertakings and obligations under the Head
Lease.
(c) Nothing contained herein shall be construed as a guarantee by Sublessor
of any of the obligations, covenants, warranties, agreements, or undertakings of
Lessor in the Head Lease nor as an absolute or unconditional undertaking by
Sublessor to perform the obligations of Lessor on the same terms as are
contained in the Head Lease.
2. Premises:
--------
(a) Sublessor hereby subleases to Sublessee and Sublessee hires from
Sublessor, the premises known as Wal-Mart Supercenter #_______ and the space
located therein (hereinafter "Premises"), to be used by Sublessee only as a
licensee of Travel Network, Ltd. (hereinafter "Licensor") for the sole purpose
of operating a Travel Network Vacation Central" agency ("Agency") subject to the
terms of a certain License Agreement entered into by and between Sublessor and
Sublessee, dated __________________. 19___ ("License Agreement").
(b) Sublessee acknowledges that the Premises are not presently suitable for
use as an Agency and agrees to complete those leasehold improvements at
Sublessee's sole cost and expense in conformity with all of the terms of the
Head Lease and in general conformity with the prototype plans and designs for
the Agency.
(c) Sublessee shall promptly execute and comply with all statutes,
ordinances, rules, orders, regulations and requirements of federal, state and
local governments and of any and all their departments and bureaus applicable to
said Premises.
(d) Before commencing any work or installing any fixtures or equipment in
connection with repair or alteration of the Premises, Sublessee shall:
1. Obtain the necessary consents, authorizations and licenses from the
federal, state and/or municipal authorities asserting jurisdiction over the work
to be done, and no work shall be started or equipment installed unless and until
all such necessary consents, authorizations and licenses shall first have been
duly obtained by the Sublessee and/or his/her contractor or other persons doing
the work or installing the equipment on behalf of Sublessee. The foregoing shall
not apply if Sublessor assumes responsibility for obtaining the foregoing;
2. Subject to the prior approval of the Lessor, enter into proper contracts
with contractors, subcontractors and materialmen, which contracts will provide,
among other things, that said work shall be done and equipment installed in good
workmanlike manner and in accordance with the plans and specifications
previously approved, and consents, authorizations and licenses previously
obtained, and which contracts shall provide that the contractor or other persons
referred to above will look solely to the Sublessee for payment and will hold
the Sublessor and the Premises free from all liens and claims of any persons
furnishing labor or furnishing materials. therefor, or both, and will also
provide similar waivers or rights to file liens obtained from any and all of
said contractors, subcontractors and materialmen; copies of said contracts
together with duly executed waivers of the right to file liens executed by the
contractors or other persons referred to above shall be furnished to the
Sublessor;
3. Sublessee shall also indemnify and save harmless Sublessor against any
and all bills for labor performed and equipment, fixtures and material furnished
to Sublessee in connection with said work as aforesaid, and against any and all
liens, bills or claims therefor or against the Premises; and within twenty (20)
days, bond or discharge any such liens, the failure to do so shall be deemed a
material breach of this Sublease; and
4. Sublessee, at his/her own cost and expense, with respect to any repairs
or alterations made by him, shall promptly comply with all laws, ordinances,
orders, rules and regulations of each and every department and bureau of the
city and state and the United States and any other lawful authority asserting
jurisdiction over the Premises, as well as all rules and regulations contained
in the Head Lease and shall reimburse Sublessor for any expenses incurred on
account of failure by Sublessee to comply with any such requirements, and any
expenses so incurred by Sublessor as aforesaid, shall be deemed "additional
rent" under this Sublease and due and payable by Sublessee to Sublessor on the
first day of the month following the payment of same by Sublessor. Sublessee, or
any contractors employed by Sublessee, or any other persons who will do the work
or install the equipment as aforesaid, shall be fully covered by Worker's
Compensation Insurance and liability insurance in the minimum amount of
$l,000,000/$2,000,000 and certificates thereof shall be furnished to Sublessor
before commencement of any work by any such contractor or persons as aforesaid.
(e) If Sublessee requests Sublessor to guarantee an obligation to the
architect 6r contractor commissioned by Sublessee for the improvements, and
Sublessor agrees to do so in a separate instrument. Sublessee agrees that any
default in payment by Sublessee to the architect or contractor shall constitute
a material breach hereof and shall be treated as though Sublessee has defaulted
in the payment of rent hereunder. Sublessee acknowledges that any such guarantee
will be given by Sublessor merely as an accommodation to Sublessee and Sublessee
agrees to hold Sublessor harmless thereunder. This provision shall not be
construed to be an agreement by Sublessor to make such a guarantee, which can
only be made in a separate instrument.
3. Term:
----
(a) This Sublease shall commence on the date hereof and shall end one day
prior to the end of the Head Lease.
(b) Sublessee shall have such options to renew this Sublease as are
provided to Sublessor in the Head Lease to renew same, if any, which options
shall be conditioned upon Sublessor exercising in each instance, the option in
the Head Lease to which Sublessee's option relates and shall be conditioned upon
the License Agreement being in full force and effect and Sublessee being in full
compliance therewith.
(c) Each option period, if any, shall run for one (1) day less than the
period available to Sublessor under the Head Lease and shall therefore expire
one (1) day prior to the end of the then-current term.
4. Rental:
------
(a) The fixed rental payable by Sublessee shall be __________________
Dollars ($______________________); the fixed common, area maintenance payable by
Sublessee shall be _______________ Dollars ($________________); the fixed real
estate taxes payable by Sublessee shall be __________________ Dollars
($______________).
The above rental, common area maintenance and real estate taxes are the net
payments and shall be absolutely net to the Sublessor without any right of
offset, claim or withholding,, payable during the initial term of the Head Lease
and shall increase during any renewal terms thereof.
(b) In the event the Head Lease contains a provision which may result in
the rental payable by Sublessor under the Head Lease being adjusted on the basis
of percentage rent charges, or being adjusted during the term hereof or in any
renewal term because of cost of living index changes or other incremental
increases, and in the event such an adjustment is in fact made under the Head
Lease, the fixed minimum rental payable hereunder shall be adjusted by the same
percentage as the rent under the Head Lease is adjusted.
(c) The fixed monthly rental installments and additional rents and charges
shall be paid directly to Sublessor via a direct debit system implemented by the
Sublessor. This procedure shall be conducted pursuant to a written agreement
entered into between Sublessee and Sublessor which will-permit Sublessor to
automatically deduct Sublessee's rental payments via electronic funds transfer.
This mechanism for payment of rent cannot be altered or cancelled by Sublessee
without the prior written consent of the Sublessor.
(d) Any monies due to Licensor from Sublessee or other payments to be made
by Sublessee pursuant to the License Agreement shall be deemed additional rent
hereunder.
(e) All rent payments and other amounts which Sublessee is required to pay
to Sublessor hereunder shall bear interest from and after their respective due
dates until paid in full at a rate equal to eighteen (18%) percent per annum,
calculated and payable weekly. Sublessee acknowledges that this section shall
not constitute Sublessor's agreement to accept such payments after they are due
or a commitment by Sublessor to extend credit to or otherwise "finance"
Sublessee's Agency. Further, Sublessee acknowledges that his/her failure to pay
all amounts when due will constitute a breach of this Sublease as provided in
Section 10, notwithstanding the provisions of this section. Further, acceptance
of any interest payment shall not be construed as a waiver by the Sublessor of
its right in respect of the default giving rise to such payment and shall be
without prejudice to the Sublessor's right to terminate this Sublease in respect
of such default.
5. Sublessee's Franchise from Licensor:
-----------------------------------
(a) Simultaneously with, or prior to, execution of this Sublease, Sublessee
has also entered into the License Agreement solely for the operation of the
Agency at the Premises. Sublessee agrees that if the aforesaid License Agreement
shall be terminated either by Sublessee or by Licensor for any reason. Sublessor
shall, in either event, then have the unqualified and absolute right to
terminate this Sublease upon five (5) days' written notice, and at the end of
said five (5) day notice period, the Sublessor may re-enter or may institute
summary or holdover proceedings to evict Sublessee and all those in possession
of the Premises by reason of the termination of this Sublease as herein
provided.
(b) Any uncured default under the License Agreement by Sublessee shall
constitute a material default hereunder and shall entitle Sublessor to re-enter
the Premises, without being liable for trespass, or institute summary or
holdover proceedings to evict Sublessee and all those in possession in the event
such default remains uncured, and, wherever the default under the License
Agreement shall pertain to the payment of money by Sublessee, such default
thereunder shall constitute a default in the payment of rent hereunder and
Sublessee shall have all remedies available to it hereunder as though the same
were a default in the payment of the fixed minimum rental.
(c) Any uncured default hereunder shall constitute a material default under
the License Agreement and shall entitle the Licensor to terminate the License
Agreement on the basis of such default.
6. Head Lease Inclusions and Exclusions;
------------------------------------
(a) The parties hereby agree that all of the other covenants and agreements
by the Licensor or Sublessor, including all extra charges and obligations, if
any, which are contained in the aforesaid Head Lease, including all riders and
addenda hereto (being Exhibit "A" hereto) are hereby assumed by Sublessee and by
this reference are made a part hereof and included in this Sublease as if herein
fully written and as if the words "Sublessor" and "Sublease: were originally
wherever the words "Lessor" and "Lessee" appear therein.
(b) With reference to the included paragraphs of said Head Lease,
pertaining to the insurance obligations of Sublessor which along with all others
are hereby taken over from the Sublessor and assumed by Sublessee, it is agreed
that the insured parties under all of said insurance policies shall be as their
interest may appear (in addition to Sublessee).
(c) It is further understood by and between the Sublessor and Sublessee
hereto that the Licensor/Sublessor shall have no liability whatsoever if
Sublessee defaults under the terms of the Head Lease and the Lessor elects to
cancel said Head Lease for the Premises.
7. Tax and Security Deposits:
-------------------------
(a) When and if requested. Sublessee agrees to pay to Sublessor in advance,
on each monthly rental payment date, an additional amount equal to one twelfth
(1/12) of the annual taxes and assessments levied against the demised Premises
for the period for which collected. Sublessor shall use such monies for payment
of such taxes or assessments as they become due and payable. In the event such
monies are insufficient for such purpose. Sublessee shall immediately, upon
notice, pay the difference to Sublessor. In remitting such taxes or assessments.
Sublessor shall not be responsible for their validity, accuracy or
reasonableness and shall not be required to make advances thereof. Sublessor
shall not be required to pay any interest on any payments made hereunder by
Sublessee and Sublessee hereby expressly waives any right, statutory or
otherwise, to have Sublessor pay interest on said payment.
(b) Upon execution of this Sublease, Sublessee shall be required to remit
to Sublessor a security deposit equal to ______( ) months rent Said security
deposit shall be held by Sublessor, throughout the term of this Sublease,
without liability for interest, as security for the faithful performance by
Sublessee of all of the terms, covenants and conditions of this Sublease by said
Sublessee to be kept and performed during the term hereof.
(i) In the event of the failure of Sublessee to keep and perform any of the
terms, covenants and conditions of this Sublease to be kept and performed by
Sublessee, then Sublessor at its option and without notice may appropriate and
apply said entire deposit, or so much thereof as may be necessary, to compensate
Sublessor for loss or damage sustained or suffered by Sublessor due to such
breach on the part of Sublessee. Should the entire deposit, or any portion
thereof, be appropriated and applied by Sublessor for the payment of overdue
rent or other sums due and payable to Sublessor by Sublessee hereunder, then
Sublessee shall, upon the written demand of Sublessor, forthwith remit to
Sublessor a sufficient amount in cash to restore said security to the original
sum deposited, and Sublessee's failure to do so within ten (10) days after
receipt of such demand shall constitute a breach of this.Sublease. Should
Sublessee comply with all of said terms, covenants and conditions and promptly
pay all of the rental herein provided for as it falls due, and all other sums
payable by Sublessee to Sublessor hereunder, the said deposit shall be returned
in full to Sublessee at the end of the term of this Sublease, or upon the
earlier termination of this Sublease.
(ii) Sublessor may deliver the funds deposited hereunder by Sublessee to
the purchaser of Sublessor's interest in the Premises, in the event that such
interest be sold, and thereupon Sublessee agrees that Sublessor shall be
discharged from any further liability with respect to such deposit.
8. Assignment and Subletting:
-------------------------
(a) Sublessee shall not sell, transfer, convey, mortgage, quitclaim,
pledge, assign or sublet or otherwise grant any party any interest in this
Sublease or the Premises, in whole or in part, except in conjunction with a
transfer of the License Agreement and upon the terms and conditions relating to
transfers contained in the License Agreement and the Head Lease. This Sublease
and the Sublessee's interest herein shall not be assignable by operation of law.
(b) Sublessor may at any time assign this Sublease and its rights,
privileges, duties and obligations hereunder.
9. Notices:
-------
All notices to be given to the Sublessor or Sublessee may be given in
writing personally or by certifie mail, return receipt requested, postage
prepaid; sent to Sublessee at the Demised Premises and to the Sublessor at 000
Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000. Delivery thereof shall be
conclusively presumed as having bee made within three (3) days from the date of
mailing.
10. Termination, Default, and Remedies:
----------------------------------
(a) Notwithstanding anything to the contrary herein or elsewhere expressed
or implied, Subless* shall have the right to terminate this Sublease upon
written notice hereof to Sublessee upon the occurrence of any oi or more of the
following events or conditions: .
(i) Any failure by Sublessee to pay any rental or other amount due
hereunder when and as the same may be due and payable and failure to cure such
default within five (5) days following receipt of written notice of default from
Sublessor;
(ii) Any other failure by Sublessee to comply with any other provision of
this Sublease. and failure to cure such default within fifteen (15) days
following receipt of written notice of default from Sublessoor
(iii) Any action or inaction by Sublessee, or the sufferance of any act or
condition I Sublessee, which would constitute a default by the Sublessor under
the Head Lease, regardless of whether or not the Landlord seeks to enforce the
applicable default provisions of the Head Lease.
(b) Upon termination of this Sublease for any reason whatsoever. Sublessee
shall immediate. surrender the Premises to Sublessor in the same condition as
existed on the commencement of this Sublease, reasonable wear and tear excepted,
and shall immediately vacate the Premises leaving all furniture, fixtures and
equipment. Six (60) days following said termination, and provided Sublessee
increases the amount of security held by Sublessor cover the shortfall on the
guaranteed rental payments by Sublessee, Sublessor will release to Sublessee the
furniture movable and unattached fixtures and equipment ("FF&E"). In the event
Sublessee fails to put up the additional security to cover the rental for the
balance of the term of the Head Lease, Sublessor shall have the right to assume
ownership of the FF&E, after crediting Sublessee with the depreciated value of
same. This credit shall be added to the security deposit that is in Sublessor's
possession. If the amount that this sum equals or is greater than the rental
due, Sublessee shall be paid the balance. Sublessor shall use its best efforts
to find a replacement sublessee/licensee. If there is deficiency at the time a
replacement sublessee/licensee is found. Sublessee shall be personally
responsible for th deficiency. If no deficiency exists. Sublessee shall be paid
what is owed to him. The depreciated value shall I calculated by reducing the
value of the FF&E by 50% at the time of purchase of same, and then depreciating
the FF&E by 20% each year, with a minimum depreciated value of 10% of the
original purchase price. By way of example, if the cost of the FF&E is $12,000,
the immediate depreciation is $6,000 and each year thereafter it shall
depreciate by 20% or a pro rata amount depending on the months involved if not a
full year. Sublessor shall have the right to file appropriate Uniform Commercial
Code forms for the purpose of perfecting its security interest in the FF&E.
Sublessee shall nevertheless be obligated to pay the monthly rental until such
time as Sublessor secures a substitu licensee/sublessee for the Premises.
Sublessor shall have the right to deduct such monthly rental from the security
deposit, which now includes the FF&E credit discussed herein, being held by
Sublessor until a substitute is found. Once a new sublessee has been secured,
Sublessee shall be paid the balance that is left over for the FF&E, less the
depreciation, the rental paid, after deducting same from the security deposit.
In the event the FF&E has been leased through a third party leasing company.
Sublessor's lien shall be subordinated to the prior lienholder.
(c) In the event this Sublease is terminated due to a default of its terms
and not as a result of default under the License Agreement and Sublessee elects
to remain in the Travel Network system. Sublessor, at its absolute discretion
may permit Licensee to do so, provided the new agency is at least five (5) miles
away from the Premises. In the event that this occurs, Licensee shall have the
right to continue to solicit his/her customer base, but wi not have any rights
in and to the telephone number of the Agency, as per the License Agreement.
(d) In addition to the remedies of Sublessor specified in the aforesaid
paragraphs, the parties hereto agree that the only notices necessary to
terminate this Sublease and License Agreement are those enumerated herein, with
all other notices and demands required by statute or law being hereby waived by
Sublessee, and further that .this Sublease and the License Agreement may also be
terminated at the election of Sublessor without farther notice or demand in the
following event:
(i) If Sublessee establishes a pattern of repeated defaults in that
Sublessee fails to make any payment of money under this Sublease when due, or
defaults in the performance of any covenants, undertakings, or obligations other
than for the payment of money required by this Sublease to be performed by
Sublessee, in three (3) consecutive calendar months or in any four (4) months
during the same calendar year (whether the same or different failures or
defaults are involved), then notwithstanding that Sublessee has cured within the
times prescribed for any such failures and defaults occurring in the first two
(2) consecutive months or in any three (3) months in the same calendar year, it
is nevertheless agreed that the occurrence of such failure of default for the
third consecutive calendar month or for the fourth month in the same calendar
year shall be conclusively deemed to be an immediate material breach of this
Sublease permitting termination without further demand or notice of any kind and
without any right on the part of Sublessee to cure; and
(ii) If Sublessee willfully falsifies any statement or report required to
be submitted to Sublessor under the terms of this Sublease.
11. Right of Entry and/or Possession:
--------------------------------
If, for any reason. Sublessee should be in default of his/her obligations
hereunder or in his/her obligations under the License Agreement, or any
stipulation signed by Sublessee, the Sublessor shall have the right to enter
upon the Premises of Sublessee at any hour, not just Sublessee's business hours,
to take possession of the Agency and Sublessee agrees that the Sublessor shall
not be required to obtain prior permission to enter upon the premises and
operate the Agency; Sublessee hereby grants the Sublessor the limited power of
attorney to obtain an order and judgment in the Sublessee's behalf in any court
of competent jurisdiction to order and authorize the entry of the Sublessor on
the premises and the operation of the Agency. Licensee further agrees that if
the Sublessor is forced to resort to this procedure by any interference with the
Sublessors rights hereunder or for any other reason. Sublessee shall pay all
attorney's fees and other costs associated with the Sublessor's obtaining such
order and judgment on its behalf.
12. Insurance:
---------
Sublessee shall, at his/her sole cost and expense, obtain and maintain the
insurance required by the Head Lease and License Agreement with respect to the
Premises. Sublessee expressly agrees to be bound by all of the terms of the
License Agreement and the Head Lease with respect to such insurance coverage
requirements, including without limitation, the duty to name Sublessor,
Licensor, the Landlord and any other required parties as additional insureds
and/or loss payees as their respective interests may appear. This obligation
includes securing an Errors and Omissions policy with at least a $1,000,000
policy limit.
13. Guaranty By Sublessee:
---------------------
In consideration of the making of this Sublease by Sublessor, the
undersigned Sublessee does hereby guarantee to Sublessor the payment of all
rent, additional rent, impositions and charges of any kind required herein to be
paid by Sublessee and the performance by Sublessee of all of the terms and
conditions of this Sublease. Sublessee hereby waives any notices hereunder or
acceptance hereof and consents to any extension of time, indulgence or waivers
granted by Sublessor to Sublessee or any other action or modification of the
Sublease terms regardless of whether they affect the extent or nature of the
obligations of the Sublessee and Sublessee agrees to pay all of the Sublessor's
expense, including attorneys fees incurred by Sublessor in enforcing this
Guaranty or the obligations of the Sublessee herein.
14. Dispute Resolution:
------------------
Arbitration: Any and all controversies or disputes arising out of, or
relating to, this Sublease or performance Agreement or interpretation thereof,
shall be submitted to final and binding arbitration as the sole and exclusive
remedy for any such controversy or dispute including any claim of persons in
privity with or claiming through, on behalf of or in the right of Sublessee
including, but are not limited to, spouses and other family members, heirs,
executors, representatives, successors and assigns.
Unless prohibited by applicable law, any claim by Sublessee or its
representatives against Sublessor and its affiliates, officers, directors, and
employees, shall be made by filing a written demand for arbitration within one
(1) year following the conduct, act or other event or occurrence first giving
rise to the claim. Failure by Franchisee to file a claim within one (1) year
will result in the loss and waiver forever of any such claim. The Federal
Arbitration Act, as amended, governs the rights and duties in any arbitration.
Arbitration shall take place according to the commercial arbitration rules
of the American Arbitration Association in effect as of the date the demand for
arbitration is filed. The arbitration shall take place at a location in Bergen
County, New Jersey selected by the American Arbitration Association.
Arbitration shall be conducted before one arbitrator appointed by the
American Arbitration Association. The prevailing party in any such arbitration
proceeding shall be entitled to recover its expenses, including reasonable
attorney's fees and accounting fees, in addition to any other relief to which it
is found entitled, including, without limitation, all administrative fees and
expenses, arbitrator's compensation, rental fees for hearing room and other
costs associated with the arbitration. The arbitrator shall have no authority to
amend or modify the terms of this Agreement.
Each party farther agrees that, unless such a limitation is prohibited by
applicable law, the other party shall not be liable for punitive or exemplary
damages and the arbitrator shall have no authority to award the same. The award
or decision by the arbitrator shall be final and binding on the parties and may
be enforced by court judgment or order. The parties consent to the exercise of
personal jurisdiction over them and to the propriety of venue set forth herein
for the purpose of carrying out this provision; and they waive any objections
that they would otherwise have-to the same.
In the event any provision in this Section is determined by a court of
competent jurisdiction to be legally invalid or unenforceable under the law
applicable in a particular case, then it is tile intention of the parties to
this Agreement that such provision be deemed inoperative and stricken from this
Agreement, and that the remainder of this Section, to the extent not legally
invalid or unenforceable under applicable law, be enforced as written and as if
the invalid or unenforceable provision or provisions had not been included in
this Section 14.
Sublessor shall have die right to seek from any court of competent
jurisdiction, provisional remedies including, but not limited to, temporary
restraining orders or preliminary injunctions before, during or after
arbitration. Sublessor need not await the outcome of the arbitration before
seeking provisional remedies. Seeking any such remedies shall not be deemed to
be a waiver of either party's right to compel arbitration. The parties consent
to the exercise of personal jurisdiction and to the propriety of venue in any
such courts for the purpose of carrying out this provision; they waive any
objections that they would otherwise have to the same; and they waive the right
to have any such action decided by a jury.
15. Miscellaneous:
-------------
(a) The words "Sublessor" and "Sublessee" shall mean respectively all
parties of Sublessor or Sublessee, regardless of number, and the word "he" or
"she" shall be synonymous with "she", "its" and "their".
(b) All remedies of the parties hereto are cumulative.
(c) No waiver by Sublessor of any provision or undertaking hereunder shall
be valid unless in writing signed by an authorized officer of Sublessor. No
waiver by either party hereto of any provision of default hereunder, whether in
a single instance or repeatedly, shall be deemed a future waiver of such
provision or default Receipt of acceptance of rent by Sublessor shall not be
deemed a waiver of any default under the covenants, agreements, terms,
provisions and conditions of this Sublease, or of any right which Sublessor may
be entitled to exercise under this Sublease.
(d) All provisions set forth in the License Agreement, where appropriate,
shall apply to this Sublease, be incorporated herein by reference and bind
Sublessor and Sublessee as if the same were set forth herein.
(e) As between Sublessor and Sublessee, in the event there is a conflict
between the terms of the Head Lease and this Sublease, the terms of this
Sublease shall control. Whenever in the Head Lease the term "Tenant/Lessee" or
an equivalent term is used, the term "Sublessee" shall be substituted therefor,
and whenever the term "Landlord"/"Lessor" or an equivalent term is used, the
term "Sublessor" shall be substituted therefor except that Sublessor shall not
be deemed to be assuming the obligations of the Landlord/Lessor under the Head
Lease. Sublessor will make reasonable efforts to enforce the obligations of
Landlord/Lessor under the Lease.
(f) Any provision of this Sublease and/or License Agreement which imposes
obligations which survive the termination or expiration hereof, shall survive
such termination or expiration.
(g) All provisions of this Sublease are severable and this Sublease shall
be interpreted and enforced as if all completely invalid or unenforceable
provisions were not contained herein and partially valid and enforceable
provisions shall be enforced to the extent valid and enforceable. If any
applicable and binding law or rule of any jurisdiction requires a greater prior
notice of termination of or refusal to renew this Sublease than is required
hereunder, or if under any applicable and binding law or rule of any
jurisdiction, any provision of this Sublease is invalid or unenforceable, the
prior notice requirements hereof, or such invalid or unenforceable provision,
shall be modified to the extent required to be valid and enforceable. Such
modifications to this Sublease shall be effective only in such jurisdiction and
shall be enforced as originally made and entered into in all other
jurisdictions.
(h) This Sublease shall be governed by and construed in accordance with the
laws of the State of New Jersey.
(i) This Sublease shall take effect upon the date of Sublessor's execution
and delivery of this Sublease to Sublessee.
IN WITNESS WHEREOF, die parties have executed this instrument the day and
year first above written.
SUBLESSOR:
TRAVEL NETWORK, LTD. SUBLESSEE
(NAME):
BY:____________________________________ (SIGNATURE)______________________
XXXXXXX X. XXXXX, PRESIDENT WITNESS:
WTTNTNESS: WTTNTNESS:
--------------------------------------- ----------------------------------
EXHIBIT "A"
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Copy of Head Lease
