Exhibit 10.125
Lease Agreement - Mission Viejo
COMPLETE WITH TENANT CHANGES TO EXECUTED LEASE
2/17/99
LEASE
BY AND BETWEEN
MISSION VIEJO ASSOCIATES LP,
a California limited partnership
AND
TOYS INTERNATIONAL
a California corporation
Mission Viejo Mall LEASE
THIS LEASE made this _________ day of ________________________________,
19______, by and between MISSION VIEJO ASSOCIATES LP, , a California limited
partnership ("Landlord"), and TOYS INTERNATIONAL, a California corporation
("Tenant");
WITNESSETH THAT, in consideration of the rents, covenants and agreements
hereinafter set forth, such parties enter into the following agreement:
ARTICLE I
BASIC LEASE INFORMATION AND DEFINITIONS
Section 1.1. Basic Lease Information.
This Article I is an integral part of this Lease and all of the terms
hereof are incorporated into this Lease in all respects. In addition to the
other provisions which are elsewhere defined in this Lease, the following,
whenever used in this Lease, shall have the meanings set forth in this Section:
Center: Mission Viejo Mall, situated in the City of Mission Viejo, County
of Orange, State of California.
Premises: Room 030. Landlord shall have the right to change the room
designation upon written notice to Tenant.
Store Floor Area: Approximately 5,959 square feet.
Lease Term: Commencing on the Commencement Date and continuing until the
last day of January next following the end of the tenth (10th) Lease Year.
Commencement Date: The earlier of (i) the date the Tenant opens for
business, or (ii) the Required Completion Date
Required Completion Date: The later of (i) September 1, 1999, (ii) the
grand re-opening of the Center including the opening of Nordstrom, or (iii)
ninety (90) days after the last to occur of (a) Tenant's receipt of Landlord's
written approval of Tenant's Plans, provided Tenant has submitted the same for
Landlord's review within fifteen (15) days of execution of this Lease, (b)
receipt of a fully executed copy of this Lease, (c) receipt of necessary
government permits and approvals required in order for Tenant to commence its
work in the Premises, provided such permits are promptly applied for and
diligently pursued by Tenant, and (d) the date Landlord has delivered possession
of the Premises to Tenant by notice to Tenant.
Minimum Annual Rent: A Minimum Annual Rent of One Hundred Fifty-Four
Thousand Nine Hundred Thirty-Four Dollars ($154,934.00) per annum (approximately
$26.00 per square foot of Store Floor Area), payable in equal monthly
installments, in advance upon the first day of each and every month commencing
upon the Commencement Date and continuing thereafter through and including the
last month of the second (2nd) Lease Year of the Lease Term; and
A Minimum Annual Rent of Two Hundred Two Thousand Six Hundred Six Dollars
($202,606.00) per annum (approximately $34.00 per square foot of Store Floor
Area), payable in equal monthly installments, in advance upon the first day of
each and every month commencing upon the third (3rd) Lease Year of the Lease
Term and continuing thereafter through and including the last month of the fifth
(5th) Lease Year of the Lease Term; and
A Minimum Annual Rent of Two Hundred Thirty-Eight Thousand Three Hundred
Sixty Dollars ($238,360.00) per annum (approximately $40.00 per square foot of
Store Floor Area), payable in equal monthly installments, in advance upon the
first day of each and every month commencing upon the sixth (6th) Lease Year of
the Lease Term and continuing thereafter through and including the last month of
the Lease Term.
Percentage Rent Rate: Six percent (6%).
Sales Breakpoint:$2,000,000.00 per annum from the Commencement Date through
and including the expiration of the second (2nd) Lease Year; and $2,800,000.00
per annum for the Lease Years third (3rd) through fifth (5th)Lease Years; and
$3,400,000.00 per annum for each Lease Year during the remainder of the Lease
Term (prorated for any Partial Lease Year).
Taxes: Calculated as set forth in Section 4.5.
Common Area Maintenance: Calculated as set forth in Section 6.2.
Trade Name: TOYS INTERNATIONAL.
Permitted Use: The Premises shall be occupied and used by Tenant solely for
the purpose of conducting therein the business of the retail sale of toys,
better quality collectibles, hobbies, arts and crafts, children's books, dolls,
model kits, child-oriented games, child-oriented video and audio cassettes,
child-oriented computer software, sporting goods and such other items as are
typically displayed in toy stores located within first class regional shopping
centers and Tenant shall not use or permit or suffer the use of the Premises for
any other business or purpose.
Insurance Charge: Thirty cents (30(cent)) per square foot of Store Floor
Area per annum, subject to adjustment as set forth herein (Section 11.1).
Promotional Fund Fixed Contribution: the greater of $1,000.00 or $1.00 per
square foot of Store Floor Area per annum, subject to adjustment as set forth
herein (Section 14.1).
Media Fund Charge: the greater of $1,000.00 or $1.00 per square foot of
Store Floor Area per annum, subject to adjustment as set forth herein (Section
14.3).
Notice Address:
Landlord MISSION VIEJO ASSOCIATES LP,
c/o M.S. Management Associates Inc.
National City Center
000 X. Xxxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Tenant TOYS INTERNATIONAL 000 Xxxxxxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000 Attention: President
Section 1.2. Definitions.
(a) "Center" shall mean, as the same may be changed from time to time, the
land and buildings and other improvements from time to time constituting an
integrated shopping center which Landlord and others have constructed or caused
to be constructed.
(b) "Landlord's Tract" shall mean that portion (or portions) of the land in
the Center and the buildings and other improvements thereon which at any time in
question Landlord owns or which Landlord leases as tenant under a sale leaseback
or under a ground lease or sublease, it being understood that Landlord may not
own or control portions of the Center. Subject to Article V, Landlord reserves
unto itself the unlimited right to modify the configuration of Landlord's Tract
at any time for the purpose of incorporating additional Major Tenants and other
buildings within the Center.
ARTICLE II
LEASED PREMISES AND TERM
Section 2.1. Leased Premises.
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
Premises as crosshatched on Exhibit "A". The Store Floor Area shall be measured
to the center line of all party or adjacent tenant walls, to the exterior faces
of all other walls and to the building line where there is no wall. The parties
agree that Landlord's determination of the Store Floor Area shall be final,
binding and conclusive. Either party shall have the right to re-measure Store
Floor Area and effectuate the adjustment of Minimum Monthly Rent provided for in
Section 4.1.
Section 2.2. Roof and Walls.
Landlord shall have the exclusive right to use all or any part of the
exterior of the side and rear walls of the Premises and the roof for any
purpose, including but not limited to erecting signs or other structures on or
over all or any part of the same, erecting scaffolds and other aids to the
construction and installation of the same, and installing, maintaining, using,
repairing and replacing pipes, ducts, conduits and wires leading through, to or
from the non-sales areas of the Premises and serving other parts of the Center
in locations which do not materially interfere with Tenant's use of the
Premises. Tenant shall have no right whatsoever in the exterior of exterior
walls of the Premises or the roof or any portion of the Center outside the
Premises, except as provided in Exhibit "B" hereof.
Section 2.3. Lease Term.
The term of this Lease (hereinafter called "Lease Term") shall commence
upon the Commencement Date and shall thereafter end on the last day of January
next following the number of Lease Years set forth in Article I unless sooner
terminated as herein provided.
Notwithstanding anything to the contrary contained in this Lease, in the
event Landlord has not delivered possession of the Premises to Tenant, with
Landlord's Work completed, on or before August 1, 1999, the expiration of the
ninety (90) day period referred to in Section 1.1(f) shall be postponed to June
1, 2000.
Section 2.4. Lease Year Defined.
"Lease Year," as used herein, means a period of twelve (12) consecutive
months during the Lease Term, the first full Lease Year commencing on the
Commencement Date and continuing through the twelfth (12th) full calendar month
occurring on or after the Commencement Date. "Partial Lease Year" means that
portion of the Lease Term prior to the first full Lease Year or following the
last full Lease Year.
Notwithstanding the foregoing, in the event the Commencement Date occurs
during the period from and including December 2, 1999 through and including
December 24, 1999, then the first Lease Year shall commence on the Commencement
Date and end on November 30, 2000.
Section 2.5. Relocation of Premises. INTENTIONALLY DELETED.
Section 2.6. Modifications to the Center.
Notwithstanding anything in this Lease contained, Landlord reserves the
right to change or modify and add to or subtract from the size and dimensions of
the Center or any part thereof, the number, location and dimensions of buildings
and stores, the size and configuration of the parking areas, entrances, exits
and parking aisle alignments, dimensions of hallways, malls and corridors, the
number of floors in any building, the location, size and number of tenants'
spaces and kiosks which may be erected in or fronting on any mall or otherwise,
the identity, type and location of other stores and tenants, and the size,
shape, location and arrangement of Common Areas (hereinafter defined), and to
design and decorate any portion of the Center as it desires, but the general
character of the Center and the approximate location of the Premises in relation
to the Major Tenants (as defined in Section 4.2 herein) shall not be
substantially changed.
Notwithstanding anything to the contrary contained in this Lease, in no
event may any changes which Landlord makes to the Center, or any portion
thereof, have any materially adverse effect upon access to and/or visibility of
the Premises. Landlord shall not install any kiosk, cart, information board or
other obstruction to visibility or access in the area of the enclosed mall
concourse directly in front of the Premises and bounded by an imaginary
elongation of the side lines of the Premises across the mall concourse.
If at any time (a) Landlord is required by any laws, ordinances, rules or
regulations of any governmental agency having jurisdiction over the Center to
provide additional parking in Landlord's Tract, or (b) Landlord proposes to
increase the total rentable floor area within the Center which would require
additional parking in the Center, Landlord may elect to provide such additional
parking by constructing deck or elevated or subterranean parking facilities,
hereinafter referred to as "Deck Parking". In the event Landlord so elects,
Tenant shall pay its proportionate share of the capital expense of providing
such Deck Parking. Tenant's proportionate share shall be determined by (a)
multiplying the total capital expense of providing such Deck Parking by a
fraction, the numerator of which is the Store Floor Area of the Premises and the
denominator of which is the total rentable floor area in Landlord's Tract,
either existing, or proposed by Landlord, as the case may be, at the time of
providing such Deck Parking; and (b) multiplying the figure derived pursuant to
the foregoing subsection (a) by a fraction, the numerator of which is the number
of full calendar months remaining in the term of the Lease, and the denominator
of which shall be the greater of (i) the number of months required to amortize
the permanent financing obtained by Landlord to finance the capital expense of
providing such Deck Parking, or (ii) fifteen (15) years. Tenant shall pay its
proportionate share of the capital expense of providing such Deck Parking in
equal monthly installments commencing upon the date the Deck Parking is open for
public use and continuing thereafter on the first day of every calendar month
during the remaining term hereof, plus interest thereon at the rate of nine
percent (9%) per annum.
ARTICLE III
TENANT'S WORK
Section 3.1.1. Landlord's Work.
Landlord shall at its expense construct the Premises in substantial
accordance with plans and specifications prepared or to be prepared by
Landlord's architect, incorporating in such construction all work described in
Exhibit "B" hereto as being required by Landlord (hereinafter called
("Landlord's Work").
Section 3.1. Tenant's Work.
All work not provided herein to be done by Landlord shall be performed by
Tenant (hereinafter called "Tenant's Work") including but not limited to all
work designated as Tenant's Work in Exhibit "B," and Tenant shall do and perform
at its expense all Tenant's Work diligently and promptly and in accordance with
the following provisions. Tenant agrees to accept the Premises in its present
"as is" condition Notwithstanding anything to the contrary contained in this
Lease, Tenant shall have the right without Landlord's consent to re-use any and
all improvements, fixtures and equipment existing in the Premises as of the date
of this Lease to the extent same are working, in good repair and have adequate
capacity and life. Landlord agrees that no such improvements, fixtures and/or
equipment shall be removed from the Premises prior to delivery of possession to
Tenant, except to the extent removed by the previous tenant of the Premises (or
portion thereof) pursuant to its lease. In the event that prior to or during the
construction of Tenant's Work any Hazardous Material is found in the Premises,
Landlord shall, at is sole cost, remove same, such removal to be in accordance
with applicable laws and regulations, and the ninety (90) day period referred to
in the definition of "Commencement Required Completion Date" shall be extended
by the number of days Tenant is delayed by virtue of such work by Landlord.
Further alterations of this room will be at the Tenant's sole expense and deemed
to be Tenant's Work, including, but not limited to, all work designated as
Tenant's Work in Exhibit "B", and Tenant shall do and perform all Tenant's Work
diligently and promptly and in accordance with the following provisions.
Section 3.2. Tenant's Obligations Before Commencement Date.
As soon as reasonably possible hereafter, Landlord shall deliver to Tenant
a drawing of the Premises and a copy of the Tenant Information Handbook and the
same shall become a part hereof by this reference as Exhibit "B-1" (hereinafter
referred to as "Handbook"). On or before the later of (i) June 1, 1999 or (ii)
Within forty five (45) days after Tenant receives a fully executed original the
date of this Lease or the date of receipt of a drawing of the Premises and
Tenant's Handbook, whichever is later, Tenant will submit to Landlord one (1)
reproducible set (sepia) and 3 copies of plans and specifications, prepared by a
registered architect or engineer, of all Tenant's Work to be done within the
Premises (hereinafter called "Tenant's Plans"), prepared in conformity with
Exhibit "B" and the Handbook. Within thirty (30) days after receipt of Tenant's
Plans, Landlord shall notify Tenant of any failures of Tenant's Plans to conform
to Exhibit "B," the Handbook or otherwise to meet with Landlord's approval.
Tenant shall within fifteen (15) days after receipt of any such notice cause
Tenant's Plans to be revised to the extent necessary to conform to Exhibit "B"
or the Handbook obtain Landlord's approval and resubmitted for Landlord's
approval. When Landlord has approved the original or revised Tenant's Plans,
Landlord shall initial and return one (1) set of approved Tenant's Plans to
Tenant and the same shall become a part hereof by this reference as Exhibit
"B-2." Approval of plans and specifications by Landlord shall not constitute the
assumption of any responsibility by Landlord for their accuracy or sufficiency
or conformity with applicable laws (including but not limited to the Americans
with Disabilities Act of 1990 and the Xxxxxxxx-Xxxxxxx Occupational Safety and
Health Act), and Tenant shall be solely responsible for such plans and
specifications. Tenant shall not commence any of Tenant's Work until Landlord
has approved Exhibit "B-2," unless prior Landlord approval has been obtained in
writing.
Notwithstanding anything to the contrary contained in the Handbook, (i)
Tenant shall not be required to make any plan submissions earlier than as
required pursuant to the terms and provisions of this Lease, (ii) Tenant shall
not be required to post, or to cause its contractor to post, a payment or
performance bond or other bond of any kind, (iii) Landlord shall not have a
right of approval with respect to the identity of Tenant's contractor(s), (iv)
except for Landlord's right to approve plans and specifications for Tenant's
Work, Landlord shall not have the right to design Tenant's store or any portion
thereof, (v) Tenant shall not be required to pay Landlord for any item of work,
installation or service, or any other sum whatsoever, that is not specifically
and expressly provided for (including the amount thereof) in the terms and
provisions of this Lease, (vi) Tenant shall not be required to include within
Tenant's Work any work not specifically required to be performed pursuant to
this Lease, (vii) there shall be no restriction on Tenant's use or placement of
fixtures, signs, advertisements, notices or decals except as specifically set
forth in this Lease, (viii) Tenant's obligation to use Landlord or a particular
contractor for the performance of any part of Tenant's Work is conditioned upon
Landlord or such contractor charging a competitive fee for its work or service
and being available to perform work or provide materials to Tenant when needed
by Tenant, (ix) Tenant's obligation to incorporate design suggestions and
comments of Landlord or its tenant coordinator is limited to those suggestions
and comments which are requried in order for the plans and specifications to
conform to the Handbook and this Lease, (x) Tenant shall not be obligated to use
union labor unless failure to do so is likely to cause labor unrest or a work
stoppage with respect to the Center, (xi) in the event of any conflict between
this Lease and the Handbook, this Lease shall control, and (xii) in the event of
any conflict between the Handbook and the approved Tenant's Plans, the approved
Tenant's Plans shall control.
Landlord shall notify Tenant not less than fifteen (15) days in advance of
the time when Tenant can commence Tenant's Work; and Tenant shall commence such
work not later than the date specified in such notice (although Landlord may not
have completed Landlord's Work on such date and may be in the Premises
concurrently with Tenant), complete the same in strict accordance with Exhibits
"B" and "B-2," install all store and trade fixtures, equipment, stock in trade,
merchandise and inventory, and open for business therein not later than the
Commencement Required Completion Date. Tenant hereby releases Landlord and its
contractors from any claim whatsoever for damages against Landlord or its
contractors for any delay in the date on which the Premises shall be ready for
delivery to Tenant. In the event possession of the Premises is not delivered to
Tenant within eighteen (18) months two (2) years of the date of this Lease, then
this Lease automatically shall become null and void and neither party shall have
any liability or obligation to the other hereunder.
Section 3.3. Failure of Tenant to Perform. INTENTIONALLY DELETED.
Section 3.4. Condition of Premises.
Except as provided in Section 3.1, Tenant's taking possession of the
Premises shall be conclusive evidence of Tenant's acceptance thereof in good
order and satisfactory condition. Tenant shall acknowledge taking possession of
the Premises in writing. Except as provided in Section 3.1, Tenant agrees that
Landlord has made no representations as to conformance with applicable laws
respecting the condition of the Premises or the presence or absence of Hazardous
Materials (hereinafter defined) in, at, under or abutting the Premises or the
environment. Tenant also agrees that no representations respecting the condition
of the Premises, no warranties or guarantees, expressed or implied, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, with respect to workmanship or any defects in material, and
no promise to decorate, alter, repair or improve the Premises either before or
after the execution hereof, have been made by Landlord or its agents to Tenant
unless the same are contained herein.
In the event that, on the date of delivery of possession of the Premises to
Tenant, the configuration of the Premises is not in substantial conformity with
that shown on the scaled drawings on which Tenant based Tenant's Plans or the
placement of columns, equipment or utility facilities in the Premises is
different than originally shown on the scaled drawings, and, in either case, the
degree of variation from the scaled drawings reasonably requires Tenant to
revise Tenant's Plans, then (i) Landlord shall reimburse to Tenant any
additional architectural and engineering costs incurred by Tenant to prepare
such revised Tenant's Plans, and (ii) the ninety (90) day period referred to in
Section 1.1(f) shall be extended by the amount of time required (a) to prepare
such revised Tenant's Plans and resubmit the same to Landlord for approval, (b)
for Tenant to obtain Landlord's approval of new Tenant's Plans, and (c) for
Tenant to obtain a new building permit, if required.
Section 3.5. Certification.
Within sixty (60) days after the date Tenant opens for business in the
Premises, Tenant shall deliver to Landlord the following: (a) Tenant's affidavit
stating that the work to be performed by Tenant pursuant to the terms of this
Lease has been completed in strict compliance with Exhibit "B" and Tenant's
Plans, as approved by Landlord, and that no security interest under the Uniform
Commercial Code or chattel mortgages are outstanding or have been filed, it
being intended that any such affidavit may be relied upon by Landlord and that
any deliberate misstatement by Tenant shall constitute an event of default
hereunder; (b) an affidavit of any general contractor performing Tenant's Work
stating that all subcontractors, laborers and material men who have performed
work on or furnished materials to the Premises (whose names and addresses shall
be recited in the affidavit) pursuant to contracts each involving more than
$10,000.00 have been paid in full and that all liens therefor that have or might
be filed have been discharged of record or waived; (c) a complete release and
waiver of lien with respect to the Premises from any general contractor and all
subcontractors who have performed work on or furnished material to the Premises
pursuant to contracts each involving more than $10,000.00, or in lieu thereof,
an attorney's certification that the lien period for the work performed on
Tenant's behalf in the Premises has expired and that no liens in connection
therewith have been filed; (d) Tenant's written acceptance of the Premises
stating that Landlord has completed all of Landlord's Work, if any, required to
be performed by Landlord pursuant to the terms of this Lease and that Tenant
reserves no claims, offsets or backcharges, or stating those claimed; (e) any
monies owing to Landlord for the cost of any work done for or on behalf of
Tenant, as set forth in Exhibit "B" annexed hereto or otherwise; and (f) all
certificates and approvals with respect to the work performed by Tenant or on
Tenant's behalf that may be required by any governmental authorities as a
condition for the issuance of an occupancy certificate for the Premises together
with a copy of any occupancy certificate issued by the proper governmental
authority for the Premises.
ARTICLE IV
RENT
Section 4.1. Minimum and Percentage Rent.
Tenant covenants and agrees to pay to Landlord, without notice or demand,
at Landlord's Address for notice the Minimum Rent set forth in Article I, in
advance upon the first day of each and every month of the Lease Term. If actual
Store Floor Area is modified in accordance with Section 2.l, the Minimum Annual
Rent (Break Points are not related to Minimum Rent or Store Floor Area) and the
Sales Breakpoint shall be deemed automatically increased or decreased based upon
the Store Floor Area as thus determined, and any overpayments or underpayments
of Minimum Monthly Rent (Break Points are not related to Minimum Rent or Store
Floor Area) and Percentage Rent to Landlord shall be adjusted accordingly. The
failure of Tenant to object to any statement, invoice, or billing presented by
Landlord, within thirty (30) days after receipt of such statement, invoice, or
billing based on Store Floor Area, shall constitute Tenant's acquiescence to the
actual Store Floor Area as so determined by Landlord.
In addition to the payment of Minimum Rent, Tenant covenants and agrees to
pay to Landlord, without notice or demand, at Landlord's Address for notice, an
amount, if any, equal to the Percentage Rent Rate applied against that portion
of Tenant's Adjusted Gross Sales during each Lease Year or Partial Lease Year in
excess of the Sales Breakpoint for such period (hereinafter referred to as
"Percentage Rent"). In the event of a Partial Lease Year, the Sales Breakpoint
shall be determined by multiplying the Sales Breakpoint for the full Lease Year,
by a fraction, the numerator of which shall be the number of days contained in
such Partial Lease Year and the denominator of which shall be 365 days. If
Minimum Rent for any Lease Year or Partial Lease Year is reduced or abated for
any reason, the Sales Breakpoint shall be reduced in direct proportion to the
reduction or abatement of Minimum Rent for the period of time that such
reduction or abatement of Minimum Rent is in effect. If the Sales Breakpoint
changes during a Lease Year, the Sales Breakpoint for that Lease Year shall be
appropriately adjusted.
Notwithstanding anything to the contrary contained in this Lease, for
purposes of calculating Percentage Rent for the Partial Lease Year at the end of
the Lease Term, Tenant's Gross Sales during the Partial Lease Year shall be
deemed to be the total Gross Sales for the final twelve (12) month period of the
Lease Term multiplied by a fraction the numerator of which is the number of
calendar days in the Partial Lease Year and the denominator of which is 365.
Section 4.2. Miscellaneous Rent Provisions.
If Tenant shall fail to pay any installment of Minimum Rent, Percentage
Rent or any item of Additional Rent within five (5) days after the date the same
became due and payable, then Tenant shall pay to Landlord a late payment service
charge ("Late Charge") covering administrative and overhead expenses equal to
the greater of (a) $250.00 or (b) 5(cent) per each dollar so overdue. Provision
herein for payment of the Late Charge shall not be construed to extend the date
for payment of any sums to be paid by Tenant hereunder or to relieve Tenant of
its obligation to pay all such sums at the times herein stipulated. If the
Commencement Date is other than the first day of a month, Tenant shall pay on
the Commencement Date a prorated partial Minimum Monthly Rent for the period
prior to the first day of the next calendar month, and thereafter Minimum
Monthly Rent payments shall be made not later than the first day of each
calendar month. Landlord has designed the Center to contain Four (4) Major
Tenants. For purposes of this Lease, a "Major Tenant" is herein defined as a
single tenant occupying at least 60,000 40,000 contiguous square feet of floor
area, and a variety or specialty store is herein defined as a single tenant
occupying a single store space containing at least 15,000 contiguous square feet
of floor area. If additional Major Tenants are added to the Center or an
existing Major Tenant is replaced by a Major Tenant of higher quality, the
Minimum Annual Rent and Minimum Monthly Rent herein provided for shall
automatically be increased ten percent (10%) at the time each additional or
higher quality Major Tenant opens for business. In addition to the foregoing, If
Landlord shall, at any time during the term of this Lease, renovate or expand
the Center, the cost of which exceeds Ten Million Dollars ($10,000,000.00), the
Minimum Rent herein provided for shall automatically be increased ten percent
(10%) upon the first day of the month following the completion of such
renovation or expansion.
Section 4.3. Percentage Rent.
Tenant shall (i) not later than the fifteenth (15th) fifth (5th) day after
the close of each calendar month, deliver to Landlord at the Center office a
written statement certified under oath by Tenant or an officer of Tenant,
showing Gross Sales and Adjusted Gross Sales made in such calendar month; and
(ii) not later than sixty (60) thirty (30) days after the end of each Lease Year
or Partial Lease Year, deliver to Landlord at the Center office a statement of
Gross Sales and Adjusted Gross Sales for such Lease Year or Partial Lease Year
the correctness of which is certified to by Tenant or an officer of Tenant. If
Tenant fails to prepare and deliver any statement of Gross Sales and Adjusted
Gross Sales required hereunder, within the time or times specified above, then
Landlord shall have the right, in addition to the other rights and remedies set
forth in this Lease, (a) to collect from Tenant a sum which shall be $250.00
which shall be deemed liquidated damages for administrative and overhead
expenses resulting from such failure, and (b) to estimate Tenant's Adjusted
Gross Sales for any non-reported period and xxxx Tenant's Percentage Rent
accordingly. Landlord shall reserves the right, at Landlord's option, to adjust
Percentage Rent xxxxxxxx when actual Adjusted Gross Sales reports are received.
Percentage Rent shall become due and payable in each Lease Year on the
twentieth (20th) fifteenth (15th) day of the month immediately following the
month during which Adjusted Gross Sales exceed the Sales Breakpoint for such
Lease Year, and thereafter shall be paid monthly on all additional Adjusted
Gross Sales made during the remainder of such Lease Year, such payments to be
made concurrently with the submission by Tenant to Landlord of the written
statement of monthly Adjusted Gross Sales as provided for herein.
Tenant will preserve for at least three (3) years at Tenant's notice
address all original books and records disclosing information pertaining to
Gross Sales and Adjusted Gross Sales and such other information respecting Gross
Sales and Adjusted Gross Sales as Landlord reasonably requires, including, but
not limited to, cash register tapes, sales slips, sales checks, non-consolidated
gross income and sales tax returns, bank deposit records, sales journals and
other supporting data including itemized records of permitted exclusions.
Landlord and its agents shall have the right during business hours to examine
and audit such books and records preserved by Tenant. If such examination or
audit discloses a liability for Percentage Rent three percent (3%) or more in
excess of the Percentage Rent paid by Tenant for any period Lease Year and at
least $500.00 of Percentage Rent is owed as the result of such audit, or if
Tenant's Gross Sales and Adjusted Gross Sales cannot be verified due to the
insufficiency or inadequacy of Tenant's records, Tenant shall promptly pay
Landlord the reasonable cost of said audit. Tenant shall, in any event, pay to
Landlord the amount of any deficiency in rents which is disclosed by such audit.
If such examination or audit discloses an overpayment of Percentage Rent, then
the excess, less the cost of such examination or audit, shall be credited to
Tenant's account. Tenant's obligation to preserve all original books and records
shall survive the expiration of the Lease Term or the earlier termination of
this Lease. Landlord agrees to maintain confidentiality with respect to all
information obtained as to Tenant's Adjusted Gross Sales and Gross Sales.
If Tenant shall fail to attain Adjusted Gross Sales in an amount equal to
$2,000,000.00 during the third (3rd), fourth (4th) or fifth (5th) Lease Years of
the Lease Term, or if Tenant shall fail to attain Adjusted Gross Sales
sufficient to incur Percentage Rent in an amount equal to at least twenty five
percent (25%) of the Minimum Annual Rent payable pursuant to Section 1.1(g) of
this Lease in any Lease Year after the fifth (5th) Lease Year of the Lease Term,
then Landlord may elect to terminate this Lease by written notice to Tenant
given within six (6) months after the end of the applicable Lease Year, and this
Lease shall terminate and be null and void ninety (90) days after delivery of
such notice. Tenant may render such notice of termination inoperative if Tenant
shall, within thirty (30) days after receipt of such notice, agree in writing to
increase the Minimum Annual Rent payable for each Lease Year thereafter
(including the Lease Year in which such notice of termination was received) by
an amount equal to twenty-five percent (25%) of the Minimum Annual Rent payable
for the Lease Year immediately preceding such notice of termination. Landlord's
failure to exercise such right of termination at the end of any Lease Year shall
not be deemed a waiver of Landlord's right to terminate the Lease at the end of
any subsequent Lease Year.
If Adjusted Gross Sales do not exceed One Million Six Hundred Thirty-eight
Thousand Seven Hundred Twenty-five and 00/100 Dollars ($1,638,725.00) during the
third (3rd) Lease Year of the Term, then Landlord or Tenant may elect to
terminate this Lease by notice to the other given not more than sixty (60) days
following the expiration of the third (3rd) Lease Year and this Lease shall
terminate and be null and void ninety (90) days after delivery of such notice,
and, upon such termination, both parties hereto shall be relieved from further
obligations hereunder. If Tenant exercises the right of termination, Tenant
shall pay back the unamortized portion of improvements Landlord's Contribution
based upon a ten (10) year straight line amortization schedule, computed from
the Commencement Date and as of the effective date of termination. In the event
that at any time or times during the third (3rd) Lease Year Tenant is prevented
from operating its business at the Premises due to matters set forth in Section
24.5 of this Lease, then for purposes of this paragraph only, Tenant's Adjusted
Gross Sales for such time or times during the third (3rd) Lease Year shall be
deemed to be equal to Tenant's Adjusted Gross Sales for the identical period(s)
during the most recent year as to which Tenant was not so prevented from
operating its business at the Premises..
Section 4.4. Gross Sales and Adjusted Gross Sales Defined.
As used herein, Gross Sales means the sale prices of all goods, wares and
merchandise sold and the charges for all services performed by Tenant or any
other person or entity in, at, or from the Premises for cash, credit or
otherwise, without reserve or deduction for uncollected amounts, including but
not limited to sales and services (i) where the orders originate in, at or from
the Premises, regardless from whence delivery or performance is made, (ii)
pursuant to mail, telephone, telegraph or otherwise received or filled at the
Premises, (iii) resulting from transactions originating in, at or from the
Premises, and (iv) deposits not refunded to customers. Excluded from Gross Sales
in order to determine Adjusted Gross Sales shall be: (i) exchanges of
merchandise between Tenant's stores made only for the convenient operation of
Tenant's business and not to consummate a sale made in, at or from the Premises,
(ii) returns to manufacturers, (iii) refunds to customers (but only to the
extent included in Gross Sales), (iv) sales of fixtures, machinery and equipment
after use in Tenant's business in the Premises, (v) sales to employees at a
discount, (vi) bad debts and/or bad checks on sales made at the Premises written
off during the normal course of business provided that if such bad debts and/or
bad checks are subsequently collected, they shall be included in Gross Sales for
the Lease Year during which they are collected, (vii) sums and credits received
in the settlement of claims for loss of or damage to merchandise, (viii) sales
of product to jobbers, liquidators or the like, (ix) gift certificates, or like
vouchers, until such time as the same shall have been converted into a sale by
redemption, (x) alteration workroom charges and delivery charges, (xi) sales
from vending machines installed solely for the use of Tenant's employees, (xii)
receipts from so-called "layaway" sales except as and to the extent actually
received by Tenant, (xiii) interest, service or sales carrying charges or other
charges, however denominated, paid by customers for extension of credit on
sales, (xiv) discounts and allowances made on merchandise returned or traded in
by customers, (xv) fees, discounts and charges paid by Tenant with respect to
check guarantees and/or to the issuers of credit cards on account of the use of
credit cards by customers of the Premises, and (xvi) sales, excise or similar
tax imposed by governmental authority and collected from customers and paid out
by Tenant. No other taxes shall be deducted from Gross Sales.
Section 4.5. Taxes.
A. Definition. Landlord shall pay or cause to be paid, upon the discretion
of Landlord but before delinquent, all Taxes (as hereinafter defined) levied,
assessed, imposed, become due and payable, or liens arising in connection with
the use, occupancy or possession of or become due and payable out of or for, the
Center or any part thereof during the Lease Term. As used in this Section 4.5
the term "Taxes" shall mean and include all property taxes, both real and
personal, public and governmental charges and assessments, and all other taxes
which Landlord is obligated to pay with respect to the development of the
Center, including all extraordinary or special assessments or assessments
against any of Landlord's personal property now or hereafter located in the
Center, all reasonable costs and expenses including, but not limited to
consulting, appraisal and attorneys' fees incurred by Landlord in researching,
reviewing, evaluating, contesting, appealing or negotiating with public
authorities (Landlord having the sole authority to conduct such a contest or
enter into such negotiations) as to any of the same and all sewer, water and
other utility taxes and impositions, but shall not include taxes on Tenant's
machinery, equipment, inventory or other personal property or assets of Tenant,
Tenant agreeing to pay all taxes upon or attributable to such excluded property
without apportionment.
Taxes shall not include interest and penalties due on delinquent Taxes, but
shall include interest on Taxes withheld by virtue of Landlord making partial
payment under protest in the event such partial payment is permitted in
connection with a tax appeal proceeding.
B. Tenant's Share. Tenant shall pay to Landlord, as additional rent, its
proportionate share of all calendar year or fiscal year Taxes, such
proportionate share to be prorated for periods at the beginning and end of the
Lease Term which do not constitute full calendar months or years. Tenant's
proportionate share of any such Taxes shall be that portion of such taxes which
bears the same ratio to the total Taxes as the Store Floor Area bears to the
average rentable floor area rented or occupied in the Center (hereinafter called
"Rented Floor Area") during the calendar year or fiscal year in which such Taxes
constitute a lien upon the Center. The floor area of (i) a Major Tenant, and
(ii) any tenant in a free standing premises, and (iii) Common Areas, as
hereinafter defined, shall not be included in the Rented Floor Area, and any
contributions to Taxes received by Landlord from such tenants (less any tax
payments recaptured against any other rents or payments due Landlord) shall be
deducted from Taxes prior to the calculating of Tenant's proportionate share.
Landlord reserves the right and option to cause one or more of the separate tax
lots to be established for components, which may consist of one or more tax
parcels, as determined by Landlord, of Landlord's Tract, in which case Tenant's
proportionate share will be computed on the basis of the component or components
as determined within the sole discretion of Landlord, in which the Premises is
located.
The ratio described in the preceding paragraph shall not be utilized if the
"Rented Floor Area" is less than eighty five percent (85%) of the rentable floor
area in the Center. If the "Rented Floor Area" is less than eighty five percent
(85%), the pro rata share of Tenant shall be determined by the ratio the Store
Floor Area bears to eighty five percent (85%) of the rentable floor area in the
Center.
C. Payment by Tenant. Tenant's proportionate share of Taxes shall be paid
in monthly installments commencing with the Commencement Date, in amounts
initially reasonably estimated by Landlord, one (1) such installment being due
on the first day of each full or partial month during the Lease Term. Upon
notice from Landlord, such monthly installments shall increase or decrease from
time to time to reflect the then current estimate of the amount of any Taxes
due. When the actual amount of any such Taxes is determined by Landlord,
Landlord will notify Tenant of such actual amount and the manner of calculating
Tenant's proportionate share (in a format to be determined by Landlord) and of
any excess or deficiency in the amount theretofore paid by Tenant as its share
of such Taxes. Any such excess will be credited to Tenant's account or refunded
to Tenant if no further payments are due Landlord pursuant to this Lease. Tenant
will pay the amount of any deficiency to Landlord within thirty (30) ten (10)
days following Landlord's notice thereof. Tenant acknowledges and stipulates
that Landlord has made no representations or agreement of any kind as to the
total dollar amount of such Taxes, actual or estimated, or Tenant's dollar share
thereof. With respect to any assessments which may be levied against or upon the
Premises and the Center, or which under the laws then in force may be evidenced
by improvement or other bonds, or may be paid in annual installments, only the
amount of such annual installment (with appropriate proration for any partial
year) shall be included within the computation of Tenant's pro rata share of
Taxes for any particular year. In no event shall Tenant be required to pay (a)
any portion of Landlord's general income, franchise, inheritance, estate or gift
taxes, (b) any business license tax or fee imposed upon Landlord which is
generally applicable to all real estate related and non-real estate related
business owners or operators in the city, county or state in which the Premises
is located, nor (c) any assessments levied in order to finance in whole or in
part the development or construction of any portion of the Center. Landlord
shall furnish Tenant with copies of all applicable bills pertaining to Taxes
upon Tenant's written request.
D. Other Taxes. Tenant's proportionate share of any governmental tax or
charge (other than income tax) levied, assessed, or imposed on account of the
payment by Tenant or receipt by Landlord, or based in whole or in part upon, the
rents in this Lease reserved or upon the Center or the value thereof shall be
paid by Tenant including any new direct or indirect tax or surcharge against the
Center, the parking areas, or the number of parking spaces in the Center or any
new direct or indirect tax or surcharge in addition to or by way of substitution
for any existing tax or assessment which Landlord becomes obligated to pay with
respect to the Center.
E. Larger Parcel. If the land under the Center is a part of a larger parcel
of land for assessment purposes (the "Larger Parcel"), the taxes and assessments
allocable to the land in the Center for the purpose of determining Taxes under
this Section shall be deemed a fractional portion of the taxes and assessments
levied against the Larger Parcel, the numerator of which is the acreage in the
Center and the denominator of which is the acreage in the Larger Parcel.
Section 4.6. Additional Rent.
All amounts required or provided to be paid by Tenant under this Lease
other than Minimum Annual Rent and Percentage Rent shall be deemed additional
rent and Minimum Annual Rent, Percentage Rent and additional rent shall in all
events be deemed rent.
Section 4.7. Sprinkler System. INTENTIONALLY DELETED
Section 4.8. Landlord's Expenses.
If Landlord pays any monies or incurs any expense to correct a breach of
this Lease by Tenant or to do anything in this Lease required to be done by
Tenant, or incurs any expense (including, but not limited to, attorneys' fees
and court costs), as a result of Tenant's failure to perform any of Tenant's
obligations under this Lease, all amounts so paid or incurred shall, on notice
to Tenant, be considered additional rent payable by Tenant with the first
Minimum Monthly Rent installment thereafter becoming due and payable, and may be
collected as by law provided in the case of rent.
ARTICLE V
PARKING AND COMMON AREAS AND FACILITIES
Section 5.1. Common Areas.
All parking areas, access roads and facilities furnished, made available or
maintained by Landlord in or near the Center, including employee parking areas,
truck ways, driveways, loading docks and areas, delivery areas, multi-story
parking facilities (if any), package pickup stations, elevators, escalators,
pedestrian sidewalks, malls, including the Enclosed Mall and Food Court, if any,
courts and ramps, landscaped areas, retaining walls, stairways, bus stops,
first-aid and comfort stations, lighting facilities, sanitary systems, utility
lines, water filtration and treatment facilities and other areas and
improvements provided by Landlord for the general use in common of tenants and
their customers and Major Tenants in the Center (all herein called "Common
Areas") shall at all times be subject to the exclusive control and management of
Landlord, and Landlord shall have the right, from time to time, to establish,
modify and enforce reasonable rules and regulations with respect to all Common
Areas. Tenant agrees to comply with all rules and regulations set forth in
Section 8.9 and all reasonable amendments thereto.
Landlord shall have the right from time to time to: change or modify and
add to or subtract from the sizes, locations, shapes and arrangements of parking
areas, entrances, exits, parking aisle alignments and other Common Areas,
provided, however, that the size of parking areas on Landlord's Tract shall not
be substantially reduced; restrict parking by Tenant's employees to designated
areas; construct surface, sub-surface or elevated parking areas and facilities;
establish and from time to time change the level or grade of parking surfaces;
enforce parking charges (by meters or otherwise) with appropriate provisions for
ticket validating; add to or subtract from the buildings in the Center; and do
and perform such other acts in and to said Common Areas as Landlord in its sole
discretion, reasonably applied, deems advisable for the use thereof by tenants
and their customers.
Section 5.2. Use of Common Areas.
Tenant and its business invitees, employees and customers shall have the
nonexclusive right, in common with Landlord and all others to whom Landlord has
granted or may hereafter grant rights, to use the Common Areas subject to such
reasonable regulations as Landlord may from time to time impose and the rights
of Landlord set forth above. If a car of Tenant, a concessionaire, employee or
agent of Tenant is parked outside any area designated by Landlord for employee
parking, Tenant authorizes Landlord to cause such car to be towed from the
Center and Tenant shall reimburse Landlord for the cost thereof upon demand, and
otherwise indemnify and hold Landlord harmless with respect thereto. Tenant
shall abide by all rules and regulations and cause its concessionaires,
officers, employees, agents, customers and invitees to abide thereby. Landlord
may at any time close temporarily any Common Areas to make repairs or changes,
prevent the acquisition of public rights therein, discourage noncustomer
parking, or for other reasonable purposes. Tenant shall furnish Landlord license
numbers and descriptions of cars used by Tenant and its concessionaires,
officers and employees. Tenant shall not interfere with Landlord's or other
tenants' rights to use any part of the Common Areas.
ARTICLE VI
COST AND MAINTENANCE OF COMMON AREAS
Section 6.1. Expense of Operating and Maintaining the Common Facilities.
Landlord will operate, manage, maintain and repair or cause to be operated,
managed, maintained or repaired, the Common Areas of the Center, to the extent
the same is not done by any Major Tenant. "Landlord's Common Area Costs" shall
mean all costs of operating, managing, and maintaining the Common Areas in a
manner deemed by Landlord appropriate for the best interests of tenants and
other occupants in the Center. Included among the costs and expenses which
constitute Landlord's Common Area Costs, but not limited thereto, shall be, at
the option of Landlord, all costs and expenses of protecting, operating, and
managing the Center; repairing; repaving; lighting, including bulbs, poles and
fixtures; cleaning; painting; striping; insuring (including but not limited to
fire and extended coverage insurance on Common Areas, insurance protecting
Landlord against liability for personal injury, death and property damage and
workers' compensation insurance, insurance against defamation and claims of
false arrest occurring in and about the Center); obtaining and operating public
transportation or shuttle bus systems, including off-site parking costs, as used
in connection with bringing customers to the Center whether or not required by
any environmental or other laws, rules, regulations, guidelines, or orders;
installing and operating music program services and loudspeaker systems; the
cost of personnel, including, without limitation, security, janitorial, and
maintenance personnel, mall manager and assistant mall manager, operations
director, secretaries and mall management bookkeepers (including, without
limitation, the payroll taxes and employee benefits of such personnel); removing
of snow, ice and debris; police protection, security and security patrol; fire
protection; regulating traffic; inspecting, repairing and maintaining of
machinery and equipment used in the operation of the Common Areas, including
heating, ventilating and air conditioning machinery and equipment; purchase
price or depreciation of the cost of machinery and equipment, if purchased, or
the rental fees for machinery and equipment, if leased, providing heating,
ventilating and air conditioning to the interior Common Area; cost and expense
of inspecting, maintaining, repairing and replacing storm and sanitary drainage
systems, including disposal plants and lift stations, sprinkler and other fire
protection systems, electrical, gas, water, telephone and irrigation systems,
parking lot surfaces, sidewalks, curbs, guardrails, bumpers, fences, screens,
seasonal decor, flagpoles, bicycle racks, Center identification signs,
directional signs, traffic signals, and other traffic markers and signs; cost
and expense of maintaining, repairing and replacing the Enclosed Mall and the
exterior of the buildings in the Center, including, but not limited to floors,
floor coverings, canopies, roofs, skylights, benches, fountains, fire exits,
doors and hardware, windows, glass and glazing, escalators, elevators, walls,
stairs and signs; cost and expense of installing, maintaining and repairing
burglar or fire alarm systems in the Center, including any utility systems in
connection with any of the foregoing systems; cost and expense of landscaping
and shrubbery; expenses of utilities; and administrative and overhead costs
equal to fifteen percent (15%) of all of the foregoing and all other of
Landlord's Common Area Costs. Landlord shall have the right to amortize any
portion of the foregoing costs and expenses over a period of years as determined
by Landlord. Any of the foregoing costs and expenses which Landlord has elected
to amortize over a period of years, whether paid or incurred prior to or
subsequent to the execution of this Lease shall be included in Common Area Costs
until such costs and expenses (together with interest thereon at the rate of the
Prime Rate as established by Citibank, N.A. plus two percent [2%] in effect as
of the date Landlord incurs such costs and expenses) have been fully amortized.
Notwithstanding the foregoing provisions, Landlord's Common Area Costs shall not
include: (a) depreciation (other than depreciation as above specified); (b)
costs of repairing and replacing to the extent that proceeds of insurance or
condemnation awards are received therefor; and (c) costs of a capital nature to
the extent they improve the Common Areas to beyond their original condition or
utility as they may be put from time to time by Landlord.
Section 6.2. Tenant to Bear Pro Rata Share of Expenses.
Tenant will pay Landlord, in addition to all other amounts in this Lease
provided, such portion of Landlord's Common Area Costs for each calendar year
during the Lease Term which bears the same ratio to the total of Landlord's
Common Area Costs as the Store Floor Area bears to the Rented Floor Area (as
defined in Section 4.5). The floor area of (i) a Major Tenant or variety or
specialty store, (ii) any tenant in a freestanding premises, (iii) any tenant
with no frontage on the Enclosed Mall or located on a mezzanine level, and (iv)
Common Areas, shall not be included in Rented Floor Area, and any contributions
to Landlord's Common Area costs received from such tenants (less any Common Area
payments recaptured against other rents or payments due Landlord) shall be
deducted from Landlord's Common Area Costs prior to the calculation of Tenant's
proportionate share.
The ratio described in the preceding paragraph shall not be utilized if the
"Rented Floor Area" is less than eighty five percent (85%) of the rentable floor
area in the Center. If the "Rented Floor Area" is less than eighty five percent
(85%), the pro rata share of Tenant shall be determined by the ratio the Store
Floor Area bears to eighty five percent (85%) of the rentable floor area in the
Center.
Notwithstanding anything contained in this Lease Article XIII to the
contrary, (i) in no event shall Tenant's proportionate share of Common Area
Costs exceed the sum of Nine and 40/100 Dollars ($9.40) per calendar year for
each square foot of Store Floor Area during the partial and first full calendar
year of the Term appropriately pro rated for the first twelve months of the Term
and a prorata sum for any partial calendar year during which the Commencement
Date occurs, Notwithstanding the foregoing provision, and (ii) in no event shall
the increase in Tenant's proportionate share of Landlord's Common Area Costs for
the second full calendar year following the Commencement Date and any subsequent
calendar year exceed six percent (6%) of Tenant's proportionate share of the
Landlord's Common Area Costs for the preceding calendar year.
Tenant's share of Landlord's Common Area Costs shall be paid in monthly
installments in amounts estimated from time to time by Landlord, one (1) such
installment being due on the first day of each month of each calendar year.
After the end of each calendar year the total Landlord's Common Area Costs for
such year (and at the end of the Lease Term, the total Landlord's Common Area
Costs for the period since the end of the immediately next preceding calendar
year) shall be determined by Landlord and Tenant's share paid for such period
shall immediately, upon such determination, be adjusted by credit of any excess
or payment of any deficiency. At Landlord's option, the year-end billing may
include a certification of Landlord's Common Area Costs by an independent
Certified Public Accounting firm designated by Landlord, and such certification
shall be deemed binding and conclusive as to the actual amount of Landlord's
Common Area Costs. The fee for such certification of Landlord's Common Area
Costs shall be included in Landlord's Common Area Costs. Tenant shall not have
the right to examine, inspect, or audit Landlord's records pertaining to
Landlord's Common Area Costs. Tenant acknowledges and stipulates that Landlord
has made no representation or agreement of any kind as to the total dollar
amount of such Common Area Costs, actual or estimated, or Tenant's dollar share
thereof.
ARTICLE VII
UTILITIES AND SERVICES
Section 7.1. Utilities.
Tenant shall not install any equipment which can exceed the capacity of any
utility facilities and if any equipment installed by Tenant requires additional
utility facilities, the same shall be installed at Tenant's expense in
compliance with all code requirements and plans and specifications which must be
approved in writing by Landlord. Tenant shall be solely responsible for and
promptly pay all charges for use or consumption of sewer, gas, electricity,
water and all other utility services. Landlord may make electrical service
available to the Premises, and so long as Landlord continues to provide such
electrical service Tenant agrees to purchase the same from Landlord and pay
Landlord for the electrical service (based upon Landlord's reasonable
determination from time to time of Tenant's consumption of electricity), as
additional rent, on the first day of each month in advance (and prorated for
partial months), commencing on the Commencement Date at the same cost as would
be charged to Tenant from time to time by the utility company which otherwise
would furnish such services to the Premises if it provided such services and
metered the same directly to the Premises, but in no event at a cost which is
less than the cost Landlord must pay in providing such electrical service.
Landlord may supply water or other utilities to the Premises, and so long as
Landlord continues to provide water or such other utilities Tenant shall pay
Landlord for same at the same cost as would be charged to Tenant by the utility
company which otherwise would furnish such service to the Premises if it
provided such service and metered the same directly to the Premises, but in no
event at a cost which is less than the cost Landlord must pay in providing such
service, and in no event less than the minimum monthly charge which would have
been charged by the utility company in providing such service. Subject to the
applicable rules and regulations of the State where the Center is located Public
Service Commission, Landlord may provide a shared tenant telephone service to
the Premises and so long as Landlord continues to provide such telephone service
Tenant agrees to purchase the same from Landlord and pay Landlord for the
telephone service at the same cost as would be charged to Tenant by the utility
company which otherwise would furnish such service to the Premises if it
provided such service directly to the Premises, but in no event at a cost which
is less than the cost Landlord must pay in providing such telephone service.
Landlord shall have the right to designate an alternate third party utility
company or provider to provide any such utility service to the Premises and/or
the Center.
Tenant shall operate its heating and air conditioning so that the
temperature in the Premises will be the same as that in the adjoining mall, and
set Tenant's thermostat at the same temperature as that thermostat in the mall
which is nearest the Premises. Tenant shall be responsible for the installation,
maintenance, repair and replacement of air conditioning, heating and ventilation
systems within and specifically for the Premises, including all components such
as air handling units, air distribution systems, motors, controls, grilles,
thermostats, filters and all other components. Tenant shall contract for, in its
own name, and shall pay for a qualified service contractor to periodically
inspect, adjust, clean and repair such systems, including changing filters on a
quarterly basis. Tenant shall promptly furnish a copy of each inspection and
service report to the Center manager. Tenant shall operate ventilation so that
the relative air pressure in the Premises will be the same as or less than that
in the adjoining mall as required by the Landlord. If Tenant's use of the
Premises results in special exhaust requirements, Tenant shall have the exhaust
fans interlocked with the make-up air units. If Tenant's use of the Premises
requires a grease trap, Tenant shall contract for, in its own name, and shall
pay for a qualified service contractor to inspect, clean and repair such grease
trap at such intervals as may be required by Tenant's use, but in no event less
frequently than once a month. Tenant shall promptly furnish a copy of the
inspection and service report to the Center manager. In the event such grease
trap services Tenant and other tenants in the Center, Landlord may elect to
perform such inspection, cleaning and repairing, and tenant shall pay to
Landlord its proportionate share of the cost thereof based upon the number of
tenants serviced by such grease trap. Tenant's proportionate share of such cost
shall be due and payable within ten (10) days after xxxxxxxx therefor are
rendered to Tenant.
In the event Tenant requires the use of telecommunication services,
including, but not limited to, credit card verification and/or other data
transmission, then Tenant shall contract for such services with one of the
service providers available at the Center.
Section 7.2. Enforcement and Termination.
In the event of any default by Tenant, Landlord reserves the right, in
addition to all other rights and remedies available to Landlord, to cut off and
discontinue, without notice or liability to Tenant, any utilities or services
provided in accordance with the provisions of this Article VII. Landlord shall
not be liable to Tenant in damages or otherwise if any utilities or services,
whether or not furnished by Landlord hereunder, are interrupted or terminated
because of repairs, installation or improvements, or any cause beyond Landlord's
reasonable control, nor shall any such termination relieve Tenant of any of its
obligations under this Lease. Notwithstanding anything to the contrary contained
in this Lease, in the event of any interruption in any utility service due to
any cause within Landlord's reasonable control, which interruption renders the
Premises wholly or partially untenantable for the reasonable operation of
Tenant's business therein, all rent and other charges under this Lease shall
xxxxx during such period of untenantability in proportion to the degree to which
Tenant's use of the Premises is impaired. At Tenant's option, Tenant may, at
Tenant's expense, install submeters on the Premises to monitor the consumption
of utilities. Tenant shall operate the Premises in such a way as shall not waste
fuel, energy or natural resources. Tenant shall cooperate with Landlord's
reasonable directives to reduce energy consumption, including installation of
new energy efficient equipment or the modification or replacement of existing
equipment, as the case may be. If any governmental authority shall order
mandatory energy conservation or if Landlord elects voluntarily to cooperate in
energy conservation at the request of any governmental authority, including,
without limitation, a reduction in operating hours or lighting usage, then
Tenant shall comply with such requirements. Landlord may cease to furnish any
one or more of said utilities or services to Tenant without liability for the
same, and no discontinuance of any utilities or services shall constitute a
constructive eviction.
ARTICLE VIII
CONDUCT OF BUSINESS BY TENANT
Section 8.1. Use of Premises.
The Premises shall be occupied and used by Tenant solely for the Permitted
Use set forth in Article I. Tenant expressly understands and acknowledges that
its Permitted Use is nonexclusive, and that other tenants may sell items
identical or similar to those sold by Tenant. Tenant hereby warrants that it has
the full and unfettered right to use the Trade Name, set forth in Article I, for
the entire Lease Term and that such use will not in any way infringe on the
rights of others. The Permitted Use is a material consideration to Tenant
entering into this Lease so as to permit Landlord to maintain an appropriate
tenant mix, or balance, both to the quality and quantity of sales, within the
Center in order to achieve the maximum gross sales for all tenants and to assure
the continued operation of a full service regional shopping center development.
Section 8.2. Prompt Occupancy and Use.
Tenant will occupy the Premises upon the Commencement Date and thereafter
continuously operate and conduct in one hundred percent (100%) of the Premises
during each hour of the entire Lease Term when Tenant is required under this
Lease to be open for business the business permitted under Section 8.1 hereof,
with an adequate full staff and adequate full stock of merchandise, using only
such minor portions of the Premises for storage and office purposes as are
reasonably required. The parties agree that: Landlord has relied upon Tenant's
occupancy and operation in accordance with the foregoing provisions; because of
the difficulty or impossibility of determining Landlord's damages which would
result from Tenant's violation of such provisions, including but not limited to
damages from loss of Percentage Rent from Tenant and percentage rent from other
tenants, and diminished saleability, mortgageability and economic value,
Landlord shall be entitled to liquidated damages if it elects to pursue such
remedy; therefore for any day that Tenant does not fully comply with the
provisions of this Section 8.2 the Minimum Annual Rent, prorated on a daily
basis, shall be increased by twenty-five percent (25%), such increased sum
representing the damages which the parties agree Landlord will suffer by
Tenant's noncompliance. In addition to all other remedies, Landlord shall have
the right to obtain specific performance by Tenant upon Tenant's failure to
comply with the provisions of this Section 8.2.
Section 8.3. Conduct of Business.
Such business shall be conducted under the Trade Name set forth in Article
I unless another name is previously approved in writing by the Landlord, which
approval shall not be unreasonably withheld, delayed or conditioned; in such
manner as shall assure the reasonable transaction of a maximum volume of
profitable business in and at the Premises. Tenant's store shall be and remain
open from 10:00 A.M. until 9:30 P.M. each day of the week except Sunday, on
Sunday from 12:00 P.M. until 6:00 P.M., and in addition, during all days, nights
and hours (including Sundays as permitted by law) that any two (2) Major Tenants
in the Center (as referred to in Section 4.2 above) is and tenants occupying
seventy percent (70%) of the rentable floor area of the Center, excluding Major
Tenants, are open for business, and such other days, nights and hours as
Landlord shall approve in writing. Notwithstanding anything to the contrary
contained in this Lease, Tenant may be closed up to two (2) days in any calendar
year for the purposes of taking inventory and Tenant shall not be required to be
open for business on Christmas Day, Easter, Thanksgiving Day and New Year's Day.
Section 8.4. Operation by Tenant.
Tenant covenants and agrees that it will: not place or maintain any
merchandise, vending machines or other articles in any vestibule or entry of the
Premises or outside the Premises; store garbage, trash, rubbish and other refuse
in rat-proof and insect-proof containers inside the Premises, and remove the
same frequently and regularly and, if directed by Landlord, by such means and
methods and at such times and intervals as are reasonably designated by
Landlord, all at Tenant's costs including a pre-stocking charge for the removal
of trash prior to the Commencement Date, and, upon Landlord's request, provide a
Waste Profile Sheet or equivalent information concerning contents of trash; not
permit any sound system audible or objectionable advertising medium visible
outside the Premises; keep all mechanical equipment free of vibration and noise
and in good working order and condition; not commit or permit waste or a
nuisance upon the Premises; not permit or cause odors to emanate or be dispelled
from the Premises; not solicit business in the Common Areas nor distribute
advertising matter to, in or upon any Common Area; not permit the loading or
unloading or the parking or standing of delivery vehicles outside any area
designated therefor, nor permit any use of vehicles which will interfere with
the use of any Common Areas; subject to Section 9.1, comply with all laws,
recommendations, ordinances, rules and regulations of governmental, public,
private and other authorities and agencies, including those with authority over
insurance rates, with respect to the use or occupancy of the Premises, and
including but not limited to the Americans with Disabilities Act of 1990 and the
Xxxxxxxx-Xxxxxxx Occupational Safety and Health Act; light the show windows of
the Premises and all signs each night of the year for not less than one (1) hour
after the Premises is permitted to be closed; not permit any noxious, toxic or
corrosive fuel or gas, dust, dirt or fly ash on the Premises; not place a load
on any floor in the Shopping Center which exceeds the floor load per square foot
which such floor was designed to carry; store in the Premises only merchandise
which Tenant intends to sell at, in or from the Premises, within a reasonable
time after receipt thereof.
Landlord may make additional services, including but not limited to, music
systems, pest control, trash removal, and/or trash compactor, cleaning,
maintenance, and security, available to the Premises and, in such event, to the
extent Tenant desires such services, Tenant shall utilize such services, at
Tenant's expense which shall be reasonable and competitive.
Section 8.5. Emissions and Hazardous Materials.
A. Emissions. Tenant shall not, without the prior written consent of
Landlord:
(i) make, or permit to be made, any use of the Premises or any portion
thereof which emits, or permits the emission of an unreasonable amount of dust,
sweepings, dirt, cinders, fumes or odors into the atmosphere, the ground or any
body of water, whether natural or artificial (including rivers, streams, lakes,
ponds, dams, canals, or flood control channels), or which emits, or permits the
emission of dust, sweepings, dirt, cinders, fumes or odors into the atmosphere,
the ground or any body of water, whether natural or artificial (including
rivers, streams, lakes, ponds, dams, canals, or flood control channels) which is
in violation of any federal, state or local law, ordinance, order, rule,
regulation, code or any other governmental restriction or requirement;
(ii) permit any vehicle on the Premises to emit exhaust which is in
violation of any federal, state or local law, ordinance, order, rule,
regulation, code or any other governmental restriction or requirement;
(iii) create, or permit to be created, any sound pressure level which will
interfere with the quiet enjoyment of any real property adjacent to the
Premises, or which will create a nuisance or violate any federal, state or local
law, ordinance, order, rule, regulation, code or any other governmental
restriction or requirement;
(iv) transmit, receive, or permit to be transmitted or received any
electromagnetic, microwave or other radiation which is harmful or hazardous to
any person or property in, on or about the Premises, or anywhere else, or which
interferes with the operation of any electrical, electronic, telephonic or other
equipment wherever located, whether on the Premises or anywhere else;
(v) create, or permit to be created, any ground vibration that is
discernible outside the Premises; or
(vi) produce or permit to be produced any intense glare, light or heat
except within an enclosed or screened area and then only in such manner that the
glare, light or heat shall not be discernible outside the Premises.
B. Hazardous Material
Tenant shall not, without the prior written consent of Landlord, knowingly
cause or permit knowingly or unknowingly, any Hazardous Material (hereinafter
defined) to be brought or remain upon, kept, used, discharged , leaked, or
emitted in or about, or treated at the Premises. As used in this Lease,
"Hazardous Material(s)" shall mean any hazardous, toxic or radioactive
substance, material, matter or waste which is or becomes regulated by any
federal, state or local law, ordinance, order, rule, regulation, code or any
other governmental restriction or requirement, and shall include asbestos,
petroleum products and the terms "Hazardous Substance" and "Hazardous Waste" as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), as amended, 42 U.S.C. ss. 9601 et seq., the Resource
Conservation and Recovery Act ("RCRA"), as amended, 42 U.S.C. ss. 6901 et seq.
To obtain Landlord's consent, Tenant shall have an "Environmental Audit"
prepared by a Qualified Engineer or Environmental Professional for Landlord's
review to be relied upon by Landlord and for Landlord's use. Such Environmental
Audit shall list: (1) the name(s) of each Hazardous Material and a Material
Safety Data Sheet (MSDS) as required by the Occupational Safety and Health Act;
(2) the volume proposed to be used, stored and/or treated at the Premises
(monthly); (3) the purpose of such Hazardous Material; (4) the proposed
on-premises storage location(s); (5) the type and description of such storage
area(s); (6) the location of sanitary and storm drains; (7) the name(s) of the
proposed off-premises disposal entity; and (8) an emergency preparedness plan in
the event of a release. Additionally, the Environmental Audit shall include
copies of all required federal, state, and local permits concerning or related
to the proposed use, storage, or treatment of Hazardous Materials at the
Premises. Tenant shall submit a new Environmental Audit whenever it proposes to
use, store, or treat a new Hazardous Material at the Premises or when the volume
of existing Hazardous Materials to be used, stored, or treated at the Premises
expands by ten percent (10%) during any thirty (30) day period. If Landlord in
its reasonable judgment finds the Environmental Audit acceptable, then Landlord
shall deliver to Tenant Landlord's written consent. Notwithstanding such
consent, Landlord may revoke its consent upon: (1) Tenant's failure to remain in
full compliance with applicable environmental permits and/or any other
requirements under any federal, state, or local law, ordinance, order, rule,
regulation, code or any other governmental restriction or requirement (including
but not limited to CERCLA and/or RCRA), related to environmental safety, human
health, or employee safety; (2) the Tenant's business operations pose or
potentially pose a human health risk to other tenants; or (3) the Tenant expands
its use, storage, or treatment of Hazardous Materials in a manner inconsistent
with the safe operation of a shopping center. Should Landlord consent in writing
to Tenant bringing, using, storing or treating any Hazardous Material in or upon
the Premises, Tenant shall strictly obey and adhere to any and all federal,
state or local laws, ordinances, orders, rules, regulations, codes or any other
governmental restrictions or requirements (including but not limited to CERCLA
and/or RCRA), which in any way regulates, governs or impacts Tenant's
possession, use, storage, treatment or disposal of said Hazardous Material. In
addition, Tenant represents and warrants to Landlord that (1) Tenant shall apply
for and remain in compliance with applicable RCRA and state permits; (2) Tenant
shall report to applicable governmental authorities any release of reportable
quantities of a hazardous substance(s) as mandated by Section 103(a) of CERCLA;
(3) Tenant, within five (5) days of receipt, shall send to Landlord a copy of
any notice, order, inspection report, or other document issued by any
governmental authorities relevant to the Tenant's compliance status with
environmental or health and safety laws; and, (4) Tenant shall remove from the
Premises all Hazardous Materials introduced by Tenant, Tenant's contractors or
agents at the termination of this Lease.
In addition to, and in no way limiting, Tenant's duties and obligations as
set forth in Section 11.6 of this Lease, should Tenant breach any of its duties
and obligations as set forth in this Section 8.5 of this Lease, or if the
presence of any Hazardous Material introduced by Tenant, Tenant's contractors or
agents on the Premises results in contamination of the Premises, the Center, any
land other than the Center, the atmosphere, or any water or waterway (including
groundwater), or if contamination of the Premises or of the Center by any
Hazardous Material otherwise occurs for which Tenant is otherwise legally liable
to Landlord for damages resulting therefrom, Tenant shall indemnify, save
harmless and, at Landlord's option and with attorneys approved in writing by
Landlord, defend Landlord, and its contractors, agents, employees, partners,
officers, directors, and mortgagees, if any, from any and all claims, demands,
damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions,
causes of action, and losses of any and every kind and nature (including,
without limitation, diminution in value of the Premises or the Center, damages
for the loss or restriction on use of the rentable or usable space or of any
amenity of the Premises or the Center, damages arising from any adverse impact
on marketing space in the Center, and sums paid in settlement of claims and for
attorney's fees, consultant fees and expert fees, which may arise during or
after the Lease Term or any extension thereof as a result of such
contamination). This includes, without limitation, costs and expenses, incurred
in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because the presence of Hazardous
Material introduced by Tenant, Tenant's contractors or agents on or about the
Premises or the Center, or because of the presence of Hazardous Material
anywhere else which came or otherwise emanated from Tenant or the Premises.
Without limiting the foregoing, if the presence of any Hazardous Material on or
about the Premises or the Center caused or permitted by Tenant results in any
contamination of the Premises or the Center, Tenant shall, at its sole expense,
promptly take all actions and expense as are necessary to return the Premises
and/or the Center to the condition existing prior to the introduction of any
such Hazardous Material to the Premises or the Center; provided, however, that
Landlord's approval of such actions shall first be obtained in writing.
Section 8.6. Painting, Decorating, Displays, Alterations.
Tenant will not paint, decorate or change the architectural treatment of
any part of the exterior of the Premises nor any part of the interior of the
Premises visible from the exterior nor make any structural alterations,
additions or changes in the Premises without Landlord's written approval
thereto, which shall not be unreasonably withheld, delayed or conditioned, and
will promptly remove any such paint, decoration, alteration, addition or changes
applied or installed without Landlord's approval when required and restore the
Premises to an acceptable condition or take such other action with respect
thereto as Landlord directs. Promptly after receipt of written request from
Tenant, Landlord shall execute and deliver to Tenant or Tenant's designee an
instrument, on the form submitted by Tenant's lender or lessor, pursuant to
which Landlord waives and relinquishes, in favor of any lender or lessor of
Tenant, any lien for rent and/or security interest which Landlord may have with
respect to Tenant's fixtures, machinery, equipment, furnishing, furniture,
merchandise, inventory and all other personal property now or hereafter placed
in or upon the Premises by Tenant.
Tenant will install and maintain at all times, subject to the other
provisions of this Section 8.6, merchandise displays in any show windows on the
Premises; the arrangement, style, color and general appearance thereof and of
displays in the interior of the Premises which are visible from the exterior,
including, but not limited to, window displays, advertising matter, signs,
merchandise and store fixtures, shall be maintained in keeping with the
character and standards of the Center.
Section 8.7. Other Operations.
If during the Lease Term Tenant directly or indirectly operates, manages or
has any interest whatsoever in any other store or business operated for a
purpose or business similar to or in competition with all or part of the
business permitted under Section 1.1 hereof and using the same or a
substantially identical trade name within three (3) highway miles of any
boundary line of the Center, it will injure Landlord's ability and right to
receive Percentage Rent (such ability and right being a major consideration for
this Lease and the construction of the Center). Accordingly, if Tenant operates,
manages or has such interest in any such store or business within such area,
100% of all sales made from any such other store or business shall be included
in the computation of Gross Sales and Adjusted Gross Sales for the purpose of
determining Percentage Rent under this Lease as though said Gross Sales and
Adjusted Gross Sales had actually been made at, in or from the Premises.
Landlord shall have all rights of inspection of books and records with respect
to such stores or businesses as it has with respect to the Premises; and Tenant
shall furnish to Landlord such reports with respect to Gross Sales and Adjusted
Gross Sales from such other store or business as it is herein required to
furnish with respect to the Premises.
Section 8.8. Sales and Dignified Use.
Tenant shall continuously and without interruption, throughout the Lease
Term in good faith, actively use, occupy and operate the entire Premises, with
fixtures and decor, an inventory of goods and merchandise and a staff of sales
personnel adequate, sufficient and appropriate to operate the Premises as a
"first-class", "high-quality", "fashionable" store or business (as opposed to a
"general", "promotional" or "self-service" store or business) as those standards
of operation may be interpreted from time to time during the Lease Term. The
foregoing description is intended only as a description of the general quality
of the merchandise or services Tenant may sell and the general quality of
customer service, merchandising, fixturing and decor Tenant must maintain in the
operation of the Premises. The foregoing description is not intended by Landlord
and will not be enforced to affect the retail selling price of Tenant's
merchandise or services. Tenant shall operate its business at the Premises in a
respectable, reputable, tasteful, competent and dignified manner in order to
enhance the image of the Center as a whole and its reputation as a dignified and
desirable place to shop. and to achieve the maximum volume of sales so that
Landlord will receive the maximum amount of Percentage Rent from Tenant or
percentage rent from other tenants and occupants of the Center. No public or
private auction or any fire, "going out of business," bankruptcy or similar
sales or auctions shall be conducted in or from the Premises and the Premises
shall not be used in a disreputable or immoral manner or in violation of
national, state or local laws.
Section 8.9. Rules and Regulations.
Tenant shall comply with the following rules and regulations and any
reasonable, nondiscriminatory amendments thereto as developed by Center
management: (i) Tenant shall advise and cause its vendors to deliver all
merchandise before noon on Mondays through Fridays, not at other times; (ii) all
deliveries are to be made to designated service or receiving areas and Tenant
shall request delivery trucks to approach their service or receiving areas by
designated service routes and drives; (iii) tractor trailers which must be
unhooked or parked must use steel plates under dolly wheels to prevent damage to
the asphalt paving surface. In addition, wheel blocking must be available for
use. Tractor trailers are to be removed from the loading areas after unloading.
No parking or storing of such trailers will be permitted in the Center; (iv)
except for small parcel packages, no deliveries will be permitted through the
malls unless Tenant does not have a rear service door. In such event, prior
arrangements must be made with the Mall Manager for delivery. Merchandise being
received shall immediately be moved into Tenant's Premises and not be left in
the service or receiving areas; (v) Tenant is responsible for storage and
removal of its trash, refuse and garbage. Tenant shall not dispose of the
following items in sinks or commodes: plastic products (plastic bags, straws,
boxes); sanitary napkins; tea bags; cooking fats, cooking oils; any meat scraps
or cutting residue; petroleum products (gasoline, naptha, kerosene, lubricating
oils); paint products (thinner, brushes); or any other item which the same are
not designed to receive. All Store Floor Area of Tenant, including vestibules,
entrances and returns, doors, fixtures, windows and plate glass, shall be
maintained in a safe, neat and clean condition; (vi) other than as permitted
under the provisions of the Lease, Tenant shall not permit or suffer any
advertising medium to be placed on mall walls, on Tenant's mall or exterior
windows, on standards in the mall, on the sidewalks or on the parking lot areas
or light poles. No permission, expressed or implied, is granted to exhibit or
display any banner, pennant, sign, and trade or seasonal decoration of any size,
style or material within the Center, outside the Premises; (vii) Tenant shall
not permit or suffer the use of any objectionable advertising medium which can
be heard or experienced outside of the Premises, including, without limiting the
generality of the foregoing, flashing lights, searchlights, loud speakers,
phonographs, radios or television. No radio, television, or other communication
antenna equipment or device is to be mounted, attached, or secured to any part
of the roof, exterior surface, or anywhere outside the Premises, unless Landlord
has previously given its written consent; (viii) Tenant shall not permit or
suffer merchandise of any kind at any time to be placed, exhibited or displayed
outside its Premises, nor shall Tenant use the exterior sidewalks or exterior
walkways of its Premises to display, store or place any merchandise. No sale of
merchandise by tent sale, truck load sale or the like, shall be permitted on the
parking lot or other common areas; (ix) Tenant shall not permit or suffer any
portion of the Premises to be used for lodging purposes, nor conduct or permit
any unusual firing, explosion or other damaging or dangerous hazard within the
Premises or the Common Area; (x) Tenant shall not permit or suffer any portion
of the Premises to be used for any warehouse operation, or any assembling,
manufacturing, distilling, refining, smelting, industrial, agricultural,
drilling or mining operation, adult bookstore or cinema, peepshow, entertainment
or sale of products of an obscene or pornographic nature or predominately sexual
nature; (xi) Tenant shall not, in or on any part of the Common Area: (a) vend,
peddle or solicit orders for sale or distribution of any merchandise, device,
service, periodical, book, pamphlet or other matter whatsoever; (b) exhibit any
sign, placard, banner, notice or other written material, except for activities
as approved in writing by Landlord; (c) distribute any circular, booklet,
handbill, placard or other material, except for activities as approved in
writing by Landlord; (d) solicit membership in any organization, group or
association or contribution for any purpose; (e) create a public or private
nuisance; (f) use any Common Areas (including the Enclosed Mall) for any purpose
when none of the other retail establishments within the Center is open for
business or employment, except for activities as approved in writing by
Landlord; (g) throw, discard or deposit any paper, glass or extraneous matter of
any kind except in designated receptacles, or create litter or hazards of any
kind; (h) deface, damage or demolish any sign, light standard or fixture,
landscaping materials or other improvement within the Center, or the property of
customers, business invitees or employees situated within the Center.
ARTICLE IX
MAINTENANCE OF LEASED PREMISES
Section 9.1. Maintenance by Landlord.
Landlord shall keep or cause to be kept the foundations, roof, exterior
walls and other structural portions of the walls of the Premises in compliance
with all applicable laws and governmental rules, ordinances, regulations and
requirements, and in good order, repair and condition except for damage thereto
due to the acts or omissions of Tenant, its agents or employees. or invitees.
The foregoing provision shall not prejudice Landlord's right to include the cost
of maintaining the roof over the Premises within the provisions of Article VI of
this Lease. Landlord shall commence required repairs as soon as reasonably
practicable after receiving written notice from Tenant thereof. This Section 9.1
shall not apply in case of damage or destruction by fire or other casualty or
condemnation or eminent domain, in which events the obligations of Landlord and
Tenant shall be controlled by Article XVI and XVII. Except as provided in this
Section 9.1 Lease Landlord shall not be obligated to make repairs, replacements
or improvements of any kind upon the Premises, or to any equipment, merchandise,
stock in trade, facilities or fixtures therein, all of which shall be Tenant's
responsibility, but Tenant shall give Landlord prompt written notice of any
accident, casualty, damage or other similar occurrence in or to the Premises or
the Common Areas of which Tenant has knowledge.
Section 9.2. Maintenance by Tenant.
Subject to Section 9.1, Tenant shall at all times, at Tenant's sole cost
and expense, keep the Premises (including all entrances and vestibules) and all
partitions, window and window frames and mouldings, glass, store fronts, doors,
door openers, fixtures, equipment and appurtenances thereof (including lighting,
heating, electrical, plumbing, ventilating and air conditioning fixtures and
systems and other mechanical equipment and appurtenances) and all parts of the
Premises, and parts of Tenant's Work not on the Premises, not required herein to
be maintained by Landlord, in good order, condition and repair and clean,
orderly, sanitary and safe, damage by unavoidable casualty excepted, (including
but not limited to doing such things as are necessary to cause the Premises to
comply with applicable laws, ordinances, rules, regulations and orders of
governmental and public bodies and agencies, such as but not limited to the
Americans with Disabilities Act of 1990 and the Xxxxxxxx-Xxxxxxx Occupational
Safety and Health Act). If replacement of equipment, fixtures and appurtenances
thereto is necessary, Tenant shall replace the same with new or completely
reconditioned equipment, fixtures and appurtenances, and repair all damages done
in or by such replacement. If Tenant fails to perform its obligations hereunder,
Landlord without notice may, but shall not be obligated to, perform Tenant's
obligations or perform work resulting from Tenant's acts, actions or omissions
and add the cost of the same to the next installment of Minimum Monthly Rent due
hereunder.
Section 9.3. Surrender of Premises.
At the expiration of the Lease Term, Tenant shall surrender the Premises in
good the same condition as they were required to be in on the Required
Completion Date, reasonable wear and tear and damage by unavoidable casualty
excepted, and deliver all keys for, and all combinations on locks, safes and
vaults in, the Premises to Landlord at Landlord's notice address as specified in
Section 1.1 or, at Landlord's option, to the office of the Center's general
manager.
ARTICLE X
ALTERATIONS AND TENANT'S LIENS
Section 10.1. Remodeling. INTENTIONALLY DELETED.
Section 10.2. Removal and Restoration by Tenant.
All alterations, changes and additions and all improvements, including
leasehold improvements, made by Tenant whether part of Tenant's Work or not,
shall immediately upon installation attach to the fee and become Landlord's
property and shall not be removed unless replaced by like property. If Tenant
fails to remove any shelving, decorations, equipment, trade fixtures or personal
property from the Premises prior to the end of the Lease Term, they shall become
Landlord's property and Tenant shall repair or pay for the repair of any damage
done to the Premises resulting from removing same but not for painting or
redecorating the Premises.
Section 10.3. Tenant's Liens.
A. Tenant shall not suffer any mechanics' or materialmen's lien to be filed
against the Premises or the Center by reason of work, labor, services or
materials performed or furnished to Tenant or anyone holding any part of the
Premises under Tenant. If any such lien shall at any time be filed as aforesaid,
Tenant may contest the same in good faith, but, notwithstanding such contest,
Tenant shall, within fifteen (15) days after the filing thereof, cause such lien
to be released of record by payment, bond, order of a court of competent
jurisdiction, or otherwise. In the event of Tenant's failure to release of
record any such lien within the aforesaid period, Landlord may remove said lien
by paying the full amount thereof or by bonding or in any other manner Landlord
deems appropriate, without investigating the validity thereof, and irrespective
of the fact that Tenant may contest the propriety or the amount thereof, and
Tenant, upon demand, shall pay Landlord the amount so paid out by Landlord in
connection with the discharge of said lien, together with interest thereon at
the rate of twelve percent (12%) per annum and reasonable expenses incurred in
connection therewith, including reasonable attorneys' fees, which amounts are
due and payable to Landlord as additional rent on the first day of the next
following month. Landlord shall have the right to deduct the expenses incurred
by Landlord pursuant to this Section 10.3 from Landlord's contribution towards
Tenant's Work, if any. Nothing contained in this Lease shall be construed as a
consent on the part of Landlord to subject Landlord's estate in the Premises to
any lien or liability under the lien laws of the State where the Center is
located. Tenant's obligation to observe and perform any of the provisions of
this Section 10.3 shall survive the expiration of the Lease Term or the earlier
termination of this Lease.
B. Tenant shall not create or suffer to be created a security interest or
other lien against any improvements, additions or other construction made by
Tenant in or to the Premises or against any equipment or fixtures installed by
Tenant therein (other than Tenant's property), and should any security interest
be created in breach of the foregoing, Landlord shall be entitled to discharge
the same by exercising the rights and remedies afforded it under paragraph A of
this Section.
ARTICLE XI
INSURANCE
Section 11.1. By Landlord.
Landlord shall carry commercial general liability insurance (either through
the purchase of insurance or a self-insurance plan) on those portions of the
Common Areas included in Landlord's Tract providing coverage of not less than
$5,000,000.00 against liability for bodily injury including death and personal
injury for any one (1) occurrence and $1,000,000.00 property damage insurance,
or combined single limit insurance in the amount of $5,000,000.00.
Landlord shall also carry insurance for fire, extended coverage, vandalism,
malicious mischief and other endorsements deemed advisable by Landlord, insuring
all improvements on Landlord's Tract, including the Premises and all leasehold
improvements thereon and appurtenances thereto (excluding Tenant's merchandise,
trade fixtures, furnishings, equipment, personal property and excluding plate
glass) for the full insurable value thereof, with such deductibles as Landlord
deems advisable, such insurance coverage to include improvements provided by
Tenant as set forth in Exhibit "B" and "B-2" as Tenant's Work (excluding wall
covering, floor covering, carpeting and drapes) and Landlord's Work as defined
in Exhibit "B"; Tenant agrees to pay Landlord, as additional rent, the Insurance
Charge set forth in Article I, payable in equal installments on the first day of
every calendar month during the Lease Term, prorated for partial months and
partial Lease Years, as Tenant's share of the cost of the premiums for such
insurance described above in this sentence. At the end of the first Partial
Lease Year and each Lease Year thereafter, the amount thus to be paid by Tenant
shall be adjusted from time to time as required (but shall never be less than
the above amount) in direct ratio to the increase or decrease in the cost of the
premiums paid by Landlord for such insurance coverage. Notwithstanding the
foregoing provision, in no event shall the increase in Tenant's Insurance Charge
for the second full calendar year following the Commencement Date and any
subsequent calendar year exceed six percent (6%) of Tenant's Insurance Charge
for the preceding calendar year.
Section 11.2. By Tenant.
Tenant agrees to carry commercial general liability insurance on the
Premises during the Lease Term, covering the Tenant and naming the Landlord,
Xxxxx XxXxxxxxx Group, Inc., and the property management company as additional
insureds with terms and companies reasonably satisfactory to Landlord, on an
Occurrence form with a limit of not less than $1,000,000.00 for any one (1)
occurrence, together with primary, Umbrella or Excess insurance in an amount of
not less than $2,000,000.00. Tenant's insurance will include contractual
liability coverage recognizing this Lease, products and completed operations
liability and providing that Landlord and Tenant shall be given a minimum of
thirty (30) days written notice by the insurance company prior to cancellation,
termination or change in such insurance. Tenant also agrees to carry insurance
against fire and such other risks as are from time to time required by Landlord,
including, but not limited to, a standard "All-Risk" (i.e. "Special Form"),
which may be a blanket policy, policy of property insurance protecting against
all risk of physical loss or damage, including without limitation, sprinkler
leakage coverage and plate glass insurance or self-insurance covering all plate
glass in the Premises (including store fronts), in amounts not less than 80% of
the actual replacement cost, covering all of Tenant's merchandise, trade
fixtures, furnishing, wall covering, floor covering, carpeting, drapes,
equipment and all items of personal property of Tenant located on or within the
Premises. Upon the Commencement Date and annually thereafter, Tenant shall
provide Landlord with certificates or, at Landlord's request, copies of the
policies, evidencing that such insurance is in full force and effect and stating
the terms thereof, including all endorsements. The minimum limits of the
commercial general liability policy of insurance shall in no way limit or
diminish Tenant's liability under Section 11.6 hereof and shall be subject to
increase, not to exceed a maximum limit of $3,000,000.00 combined single limit,
at any time, and from time to time, after the commencement of the fifth (5th)
year of the Lease Term if Landlord in the exercise of its reasonable judgment
shall deem same necessary for adequate protection. Within thirty (30) days after
demand therefor by Landlord, Tenant shall furnish Landlord with evidence that it
has complied with such demand. Prior to the Commencement Date, Tenant's
insurance coverage shall be governed by the provisions of Exhibit "B".
Notwithstanding the above mentioned commercial general liability insurance
policy limit for Tenant, if Tenant after obtaining Landlord's prior written
consent, does or intends to bring, possess, use, store, treat or dispose any
Hazardous Material (herein defined) in or upon the Premises or Center, Landlord
shall have the right, as a condition to such consent, to require Tenant to
purchase additional public liability insurance with coverage of no less than
Five Million and 00/100 Dollars ($5,000,000.00) and to purchase environmental
impairment liability insurance with coverage of no less than Five Million and
00/100 Dollars ($5,000,000.00) with a deductible of no greater than Fifty
Thousand and 00/100 Dollars ($50,000.00) to insure that anything contaminated
with or by the Hazardous Material be removed from the Premises and/or the
Center, and that the Premises and/or the Center be restored to a clean, neat,
attractive, healthy, sanitary and non-contaminated condition.
Section 11.3. Mutual Waiver of Subrogation Rights.
Notwithstanding anything to the contrary contained in this Lease, Landlord
and Tenant and all parties claiming, by, through or under them mutually release
and discharge each other from all claims and liabilities arising from or caused
by any casualty or hazard covered or required hereunder to be covered in whole
or in part by insurance on the Premises or Center in connection with property on
or activities conducted on the Premises or Center, and waive any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof and further agree to evidence such waiver by endorsement to the required
insurance policies, provided that such release shall not operate in any case
where the insurance industry in general takes the position that such waiver
would effect is to invalidate or increase the cost of such insurance coverage
(provided that in the case of increased cost, the other party shall have the
right, within thirty (30) days following written notice, to pay such increased
cost or, in Tenant's case, Tenant's pro rata share of such increased cost
thereby keeping such release and waiver in full force and effect).
Section 11.4. Waiver.
Notwithstanding anything to the contrary contained in this Lease, except to
the extent caused by the negligence, willful act or breach of this Lease by
Landlord, or its agents, employees or contractors, Landlord, its agents and
employees, shall not be liable for, and Tenant waives all claims for, loss or
damage, including but not limited to consequential damages, to person, property
or otherwise, sustained by Tenant or any person claiming through Tenant
resulting from any accident, casualty or occurrence in or upon any part of the
Center including, but not limited to, claims for damage resulting from: (a) any
equipment or appurtenances becoming out of repair; (b) Landlord's failure to
keep any part of the Center in repair; (c) injury done or caused by wind, water,
or other natural element; (d) any defect in or failure of plumbing, heating or
air conditioning equipment, electric wiring or installation thereof, gas, water,
and steam pipes, stairs, porches, railings or walks; (e) broken glass; (f) the
backing up of any sewer pipe or downspout; (g) the bursting, leaking or running
of any tank, tub, washstand, water closet, waste pipe, drain or any other pipe
or tank in, upon or about the Premises; (h) the escape of steam or hot water;
(i) water, snow or ice upon the Premises; (j) the falling of any fixture,
plaster or stucco; (k) damage to or loss by theft or otherwise of property of
Tenant or others; (l) acts or omissions of persons in the Premises, other
tenants in the Center, occupants of nearby properties, or any other persons; and
(m) any act or omission of owners of adjacent or contiguous property, or of
Landlord, its agents or employees. All property of Tenant kept in the Premises
shall be so kept at Tenant's risk only and Tenant shall save Landlord harmless
from claims arising out of damage to the same, including subrogation claims by
Tenant's insurance carrier.
Section 11.5. Insurance - Tenant's Operation.
Tenant will not do or suffer to be done anything which will contravene
Landlord's insurance policies or prevent Landlord from procuring such policies
in amounts and companies selected by Landlord. If anything done, omitted to be
done or suffered to be done by Tenant in, upon or about the Premises shall cause
the rates of any insurance effected or carried by Landlord on the Premises or
other property to be increased beyond the regular rate from time to time
applicable to the Premises for use for the purpose permitted under this Lease,
or such other property for the use or uses made thereof, Tenant will pay the
amount of such increase promptly upon Landlord's demand and Landlord shall have
the right to correct any such condition at Tenant's expense. In the event that
this Lease so permits and Tenant engages in the preparation of food or packaged
foods or engages in the use, sale or storage of inflammable or combustible
material, Tenant shall install chemical extinguishing devices (such as ansul)
approved by Underwriters Laboratories and Factory Mutual and the installation
thereof must be approved by the appropriate local authority. Tenant shall keep
such devices under service as required by such organizations. If gas is used in
the Premises, Tenant shall install gas cut-off devices (manual and automatic).
Section 11.6. Indemnification.
Notwithstanding anything to the contrary contained in this Lease, except to
the extent caused by the negligence, willful act or breach of this Lease by
Landlord, or its agents, employees or contractors, Tenant shall save harmless,
indemnify, and at Landlord's option, defend Landlord, its agents and employees,
and mortgagee, if any, from and against any and all liability, liens, claims,
demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings,
actions and causes of action of any and every kind and nature arising or growing
out of or in any way connected with Tenant's use, occupancy, management or
control of the Premises or Tenant's operations, conduct or activities in the
Center.
ARTICLE XII
OFFSET STATEMENT, ATTORNMENT, SUBORDINATION
Section 12.1. Offset Statement.
Within thirty (30) ten (10) days after Landlord's written request Tenant
shall deliver, executed in recordable form a declaration to any person
designated by Landlord (a) ratifying this Lease; (b) stating the commencement
and termination dates; and (c) certifying (i) that this Lease is in full force
and effect and has not been assigned, modified, supplemented or amended (except
by such writings as shall be stated), (ii) that all conditions under this Lease
to be performed by Landlord have been satisfied (stating exceptions, if any),
(iii) that no defenses or offsets against the enforcement of this Lease by
Landlord exist (or stating those claimed): (iv) as to advance rent, if any, paid
by Tenant, (v) the date to which rent has been paid, (vi) as to the amount of
security deposited with Landlord, and (vii) such other information as Landlord
reasonably requires. Persons receiving such statements shall be entitled to rely
upon them. Landlord shall execute and deliver similar statements to Tenant
within thirty (30) days after Tenant's request therefor from time to time.
Section 12.2. Attornment.
Tenant shall, in the event of a sale or assignment of Landlord's interest
in the Premises or the building in which the Premises is located or this Lease
or Landlord's Tract, or if the Premises or such building comes into the hands of
a mortgagee, ground lessor or any other person whether because of a mortgage
foreclosure, exercise of a power of sale under a mortgage, termination of the
ground lease, or otherwise, attorn to the purchaser or such mortgagee or other
person and recognize the same as Landlord hereunder. Tenant shall execute, at
Landlord's request, any attornment agreement reasonably required by any
mortgagee, ground lessor or other such person to be executed, containing such
provisions as such mortgagee, ground lessor or other person reasonably requires.
Section 12.3. Subordination.
A. Mortgage. This Lease shall be secondary, junior and inferior at all
times to the lien of any mortgage and to the lien of any deed of trust or other
method of financing or refinancing (hereinafter collectively referred to as
"mortgage") now or hereafter existing against all or a part of Landlord's Tract,
and to all renewals, modifications, replacements, consolidations and extensions
thereof, and Tenant shall execute and deliver all documents reasonably requested
by any mortgagee or security holder to effect such subordination. If Tenant
fails to execute and deliver any such document requested by a mortgagee or
security holder to effect such subordination, Landlord is hereby authorized to
execute such documents and take such other steps as are necessary to effect such
subordination on behalf of Tenant as Tenant's duly authorized irrevocable agent
and attorney-in-fact.
B. Construction, Operation and Reciprocal Easement Agreements. This Lease
is subject and subordinate to one (1) or more construction, operation,
reciprocal easement or similar agreements (hereinafter referred to as "Operating
Agreements") entered into or hereafter to be entered into between Landlord and
other owners or lessees of real estate (including but not limited to owners and
operators of department stores) within or near the Center (which Operating
Agreements have been or will be recorded in the official records of the County
wherein the Center is located) and to any and all easements and easement
agreements which may be or have been entered into with or granted to any persons
heretofore or hereafter, whether such persons are located within or upon the
Center or not, and Tenant shall execute such instruments as Landlord reasonably
requests to evidence such subordination.
Section 12.4. Failure to Execute Instruments.
Tenant's failure to execute instruments or certificates provided for in
this Article XII within twenty (20) fifteen (15) days after the mailing by
Landlord of a written request by Landlord, when such failure continues for an
additional 10 days after a second request by Landlord, shall be a default under
this Lease.
ARTICLE XIII
ASSIGNMENT, SUBLETTING AND CONCESSIONS
Section 13.1. Consent Required.
Tenant shall not sell, assign, mortgage, pledge or in any manner transfer
this Lease or any interest therein, nor sublet all or any part of the Premises,
nor license concessions nor lease departments therein, without Landlord's prior
written consent in each instance, which consent shall not be unreasonably
withheld, delayed or conditioned. Consent by Landlord to any assignment or
subletting shall not waive the necessity for consent to any subsequent
assignment or subletting. This prohibition shall include a prohibition against
any subletting or assignment by operation of law. If this Lease is assigned or
the Premises or any part sublet or occupied by anybody other than Tenant,
Landlord may collect rent from the assignee, subtenant or occupant and apply the
same to the rent herein reserved, but no such assignment, subletting, occupancy
or collection of rent shall be deemed a waiver of any restrictive covenant
contained in this Section 13.1 or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the performance by Tenant of any
covenants on the part of Tenant herein contained. Any assignment (a) as to which
Landlord has consented; or (b) which is required by reason of a final
nonappealable order of a court of competent jurisdiction; or (c) which is made
by reason of and in accordance with the provisions of any law or statute,
including, without limitation, the laws governing bankruptcy, insolvency or
receivership shall be subject to all terms and conditions of this Lease, and
shall not be effective or deemed valid unless, at the time of such assignment:
1. Each assignee or (as to its subleased space) sublessee shall agree, in a
written agreement satisfactory to Landlord, to assume and abide by all of the
terms and provisions of this Lease, including those which govern the permitted
uses of the Premises as described in Article VIII herein; and
2. Each assignee or sublessee has submitted a current financial statement,
audited by a certified public accountant, showing a net worth and working
capital in amounts reasonably determined by Landlord to be sufficient to assure
the future performance by such assignee or sublessee of Tenant's obligations
hereunder; and
3. Each assignee or sublessee has submitted, in writing, evidence
reasonably satisfactory to Landlord of substantial retailing experience in
shopping centers of comparable size to the Center and in the sale of merchandise
and services permitted under Article VIII of this Lease; and
4. The business reputation of each assignee or sublessee shall meet or
exceed generally acceptable commercial standards; and
5. The use of the Premises by each assignee or sublessee shall not violate,
or create any potential violation of applicable laws, codes or ordinances, nor
violate any other agreements affecting the Premises, Landlord or other tenants
in the Center, so long as such other agreements do not impair Tenant's ability
to use the Premises in accordance with Section 1.1(m).
6. Tenant shall pay Landlord an Assignment Fee as reimbursement to Landlord
for administrative and legal expenses incurred by Landlord in connection with
any assignment or subletting. The Assignment Fee initially will be One Thousand
and 00/100 Dollars ($1,000.00) and shall increase by One Hundred and 00/100
Dollars ($100.00) at the end of each full Lease Year of the Lease Term.
In the event of any assignment or subletting as provided above, there shall
be paid to Landlord, in addition to the Minimum Annual Rent and other charges
due Landlord pursuant to this Lease, such additional consideration as shall be
attributable to the right of use and occupancy of the Premises, whenever the
same is receivable by Tenant, together with, as additional rent, the greater of
(i) the excess, if any, of the rent and other charges payable by the assignee or
sublessee over the Minimum Annual Rent and other charges payable under the Lease
to Landlord by Tenant pursuant to this Lease, or (ii) the highest Percentage
Rent payable under the Lease by Tenant during the three (3) Lease Years
immediately preceding such assignment or subletting. Such additional rent shall
be paid to Landlord concurrently with the payments of Minimum Annual Rent
required under this Lease, and Tenant shall remain primarily liable for such
payments. Notwithstanding any assignment or subletting, Tenant shall remain
fully liable on this Lease and for the performance of all terms, covenants and
provisions of this Lease.
Neither Tenant nor any other person having an interest in the possession,
use, occupancy or utilization of the Premises shall enter into any lease,
sublease, license, concession, assignment or other agreement for use, occupancy
or utilization for space in the Premises which provides for rental or other
payment for such use, occupancy, or utilization based in whole or in part on the
net income or profits derived by any person from the part leased, used, occupied
or utilized (other than an amount based on a fixed percentage or percentages of
receipts or sales), and that any such proposed lease, sublease, license,
concession, assignment or other agreement shall be absolutely void and
ineffective as a conveyance of any right or interest in the possession, use,
occupancy or utilization of any part of the Premises.
Notwithstanding anything to the contrary contained in this Lease, without
Landlord's consent and without increase in rent and/or payment to Landlord,
Tenant shall have the right to assign this Lease and/or sublet the Premises to
any person, corporation or entity which is (i) Tenant's parent corporation, (ii)
a wholly-owned subsidiary of Tenant or of Tenant's parent corporation, (iii) a
corporation or entity of which a controlling interest is owned by Tenant or
Tenant's parent corporation, (iv) the surviving entity in the event of any
merger or consolidation involving Tenant; and/or (v) the buyer in one
transaction of all or substantially all of Tenant's assets.
In the event of a proposed assignment or sublease which requires Landlord's
consent hereunder, Landlord shall not unreasonably withhold its consent, with
respect to a proposed change of use and/or trade name in connection therewith.
Section 13.2. Change in Ownership. INTENTIONALLY DELETED.
ARTICLE XIV
PROMOTIONAL FUND AND ADVERTISING
Section 14.1. Provisions Relating to Promotional Fund.
Landlord may, at its option, create and maintain an advertising and
promotional fund (hereinafter referred to as the "Fund"), the primary purpose of
which is to provide sums necessary for professional advertising and promotional
services which benefit the tenants in the Center. In the event the Landlord does
create and maintain the Fund, Tenant agrees to contribute to such Fund,
beginning upon the later to occur of (a) the Commencement Date, or (b) the date
the Fund is created, the Promotional Fund Fixed Contribution set forth in
Article I, payable in equal monthly installments, in advance, on the first day
of each and every month (pro rated for partial months). Landlord shall
contribute an amount equal to one-fourth (1/4) of the monies collected from all
tenants in the Center during each calendar year, which sum may be paid in whole
or in part by Landlord, at its option, by providing the services of a Marketing
Director or other person or persons under Landlord's exclusive control to help
organize and implement advertising and promotional programs using assets from
the Fund. Any overpayment or underpayment of such amount by Landlord shall be
adjusted annually. The Promotional Fund Fixed Contribution shall be increased
annually commencing with the creation of the Fund based upon the lesser of (i)
five percent (5%) or (ii) the increase of the Consumer Price Index (as
hereinafter defined) during the preceding twelve (12) month period. In addition
to its other obligations contained herein, Tenant agrees that it shall
participate and cooperate in all special sales and promotions sponsored by the
Fund. The failure of any other tenant or any Major Tenant to contribute to the
Fund shall not affect Tenant's obligations hereunder.
The term "Consumer Price Index" as used in this Lease shall mean "United
States City Average All Items for All Urban Consumers (CPI-U, 1982-84=100)"
published by the Bureau of Labor Statistics of the U.S. Department of Labor. If
the publication of the Consumer Price Index of the U.S. Bureau of Labor
Statistics is discontinued, comparable statistics on the purchasing power of the
consumer dollar published by a responsible financial periodical selected by
Landlord shall be used for making such computations.
Section 14.2. Advertising. INTENTIONALLY DELETED.
Section 14.3. Media Fund.
Landlord may, at its option, create and maintain a Media Fund, the
exclusive purpose of which shall be to pay all costs and expenses associated
with the purchase of electronic, print or outdoor advertising for the promotion
of the Center. In the event Landlord does create and maintain the Media Fund,
Tenant agrees to contribute to such Fund, beginning upon the later to occur of
(a) the Commencement Date or (b) the date the Media Fund is created, the Media
Fund Charge set forth in Article I, payable in equal monthly installments, in
advance, on the first day of each and every month (pro rated for partial
months).
The Media Fund Charge shall be adjusted annually annually by a percentage
equal to the lesser of (i) five percent (5%) or (ii) the percentage increase or
decrease in the electronic, print and outdoor advertising rates of the media
used for advertising and promotions in the preceding calendar year in the media
market in which the Center is located, provided, however that said charge shall
not be less than as originally set forth herein. Following the close of each
calendar year, Landlord shall furnish Tenant a statement for the preceding
calendar year showing the amounts expended by Landlord for media advertising.
Tenant hereby authorizes Landlord to use Tenant's trade name and a brief
description of Tenant's business in connection with any media advertising
purchased pursuant to this Section.
ARTICLE XV
SECURITY DEPOSIT
Section 15.1. Amount of Deposit. INTENTIONALLY DELETED
ARTICLE XVI
DAMAGE AND DESTRUCTION
Section 16.1. Damage and Destruction.
If the Premises are hereafter damaged or destroyed or rendered partially
untenantable for their permitted use by fire or other casualty insured under the
coverage which Landlord is obligated to carry pursuant to Section 11.1 hereof,
Landlord shall promptly repair the same to substantially the condition which
they were in immediately prior to the happening of such casualty (excluding
stock in trade, fixtures, furniture, furnishings, carpeting, floor covering,
wall covering, drapes and equipment), and from the date of such casualty until
the earlier of (i) 60 days after Landlord has re-delivered the Premises to
Tenant in the same condition as it was in on the initial delivery to Tenant or
(ii) the date Tenant reopens in the Premises, Premises are so repaired and
restored, only the Minimum Monthly Rent and Additional Rent payments payable
hereunder shall xxxxx in such proportion as the part of said Premises thus
destroyed or rendered untenantable bears to the total Premises; PROVIDED,
HOWEVER, that Landlord be entitled to terminate this Lease shall not be
obligated to repair and restore if such casualty is not covered by the insurance
which Landlord is obligated to carry pursuant to Section 11.1 hereof and if
Landlord does not elect to terminate this Lease within sixty (60) days after the
occurance, Landlord shall be obligated to restore and rent shall xxxxx in the
manner provided above for insured events or is caused directly or indirectly by
the negligence of Tenant, its agents, and employees and in either of such
events, no portion of the Minimum Monthly Rent and other payments payable
hereunder shall xxxxx, and PROVIDED, FURTHER, that Landlord shall be entitled to
terminate this Lease if Landlord would otherwise be not be obligated to expend
for any repair or restoration an amount in excess of the insurance proceeds
received by Landlord therefor, and provided, further, that if the Premises be
damaged, destroyed or rendered untenantable for their accustomed uses by fire or
other casualty to the extent of more than fifty percent (50%) of the cost to
replace the Premises during the last three (3) years of the Lease Term, then
Landlord or Tenant shall have the right to terminate this Lease effective as of
the date of such casualty by giving to the other party Tenant, within sixty (60)
days after the happening of such casualty, written notice of such termination.
If such notice be given, this Lease shall terminate and Landlord shall promptly
repay to Tenant any rent theretofore paid in advance which was not earned at the
date of such casualty. Any time that Landlord repairs or restores the Premises
after damage or destruction, then Tenant shall promptly repair or replace its
stock in trade, fixtures, furnishings, furniture, carpeting, wall covering,
floor covering, drapes, equipment and Premises to substantially the same
condition as they were in immediately prior to the casualty, and if Tenant has
closed its business, Tenant shall promptly reopen for business upon the
completion of such repairs.
Notwithstanding anything to the contrary set forth herein, in the event all
or any portion of the Center shall be damaged or destroyed by fire or other
cause (notwithstanding that the Premises may be unaffected thereby), to the
extent the cost of restoration thereof would exceed thirty percent (30%) of the
amount it would have cost to replace the Center in its entirety at the time such
damage or destruction occurred, then Landlord provided that Landlord terminates
the leases of all other similarly situated tenants of the Center may terminate
this Lease by giving Tenant thirty (30) days prior notice of Landlord's election
to do so, which notice shall be given, if at all, within ninety (90) days
following the date of such occurrence. In the event of the termination of this
Lease as aforesaid, this Lease shall cease thirty (30) days after such notice is
given, and the rent and other charges hereunder shall be adjusted as of that
date.
Notwithstanding anything to the contrary contained in this Lease, in the
event the Center, or any portion thereof, is damaged or destroyed and as a
result thereof Tenant is denied reasonable access to the Premises and/or the
Common Areas, and is therefore unable to operate its business in the Premises
and in fact ceases such operation, then, all rent shall xxxxx from the date of
the casualty until Tenant is again reasonably able to operate its business in
the Premises.
Notwithstanding anything to the contrary contained in this Lease, Landlord
shall not be entitled to terminate this Lease pursuant to this Article XVI if
Landlord commences reconstruction of the Premises within twenty-four (24) months
following the date of the casualty.
ARTICLE XVII
EMINENT DOMAIN
Section 17.1. Condemnation.
If any portion of the Premises or fifteen percent (15%) or more of the
Center shall be acquired or condemned by right of eminent domain or transferred
by agreement in lieu of condemnation for any public or quasi public use or
purpose, or if an Operating Agreement is terminated as a result of such an
acquisition or condemnation, then Landlord at its election may terminate this
Lease by giving notice to Tenant of its election, and in such event rentals
shall be apportioned and adjusted as of the date of termination. If the Lease
shall not be terminated as aforesaid, then it shall continue in full force and
effect, and Landlord shall within a reasonable time after possession is
physically taken (subject to delays due to shortage of labor, materials or
equipment, labor difficulties, breakdown of equipment, government restrictions,
fires, other casualties or other causes beyond the reasonable control of
Landlord) repair or rebuild what remains of the Premises for Tenant's occupancy;
and a just proportion of the Minimum Annual Rent shall be abated, according to
the nature and extent of the injury to the Premises until such repairs and
rebuilding are completed, and thereafter for the balance of the Lease Term.
Section 17.2. Damages.
Landlord reserves, and Tenant assigns to Landlord, all rights to damages on
account of any taking or condemnation or any act of any public or quasi public
authority for which damages are payable. Tenant shall execute such instruments
of assignment as Landlord requires, join with Landlord in any action for the
recovery of damages, if requested by Landlord, and turn over to Landlord any
damages recovered in any proceeding. If Tenant fails to execute instruments
required by Landlord, or undertake such other steps as requested, Landlord shall
be deemed the duly authorized irrevocable agent and attorney-in-fact of Tenant
to execute such instruments and undertake such steps on behalf of Tenant.
However, Landlord does not reserve any damages payable for trade fixtures
installed by Tenant at its own cost which are not part of the realty.
ARTICLE XVIII
DEFAULT BY TENANT
Section 18.1. Right to Re-Enter.
The following shall be considered for all purposes to be defaults under and
breaches of this Lease: (a) any failure of Tenant to pay any rent or other
amount when due hereunder for more than ten (10) days after written notice of
such failure; (b) any failure by Tenant to perform or observe any other of the
terms, provisions, conditions and covenants of this Lease for more than thirty
(30) ten (10) days after written notice of such failure (or such additional time
as is reasonably required to correct such default); (c) a determination by
Landlord that Tenant has willfully submitted any false Gross Sales or Adjusted
Gross Sales report required to be furnished hereunder and Tenant subsequently
fails to submit a correct Gross Sales or Adjusted Gross Sales statement within
thirty (30) fifteen (15) days after receipt of written notice from Landlord; (d)
anything done by Tenant, for more than two (2) business days (excluding
holidays) after Tenant's receipt of written notice, at Tenant's notice address,
upon or in connection with the Premises or the construction of any part thereof
which directly or indirectly interferes in any way with, or results in a work
stoppage in connection with, construction of any part of the Center or any other
tenant's space; (e) the bankruptcy or insolvency of Tenant or the filing by or
against Tenant of a petition in bankruptcy or for reorganization or arrangement
or for the appointment of a receiver or trustee of all or a portion of Tenant's
property, or Tenant's assignment for the benefit of creditors; (f) if Tenant
abandons or vacates or does not do business in the Premises or (g) this Lease or
Tenant's interest herein or in the Premises or any improvements thereon or any
property of Tenant on or at the Premises are executed upon or attached; or (h)
the Premises come into the hands of any person other than expressly permitted
under this Lease, or (i) any claim or lien is asserted or recorded against the
interest of Landlord in the Premises or Center, or any portion thereof, on the
account of, or extending from any improvement or work done by or at the
instance, or for the benefit of Tenant at Tenant's request, or any person
claiming by, through or under Tenant or from any improvement or work the cost of
which is the responsibility of Tenant, and the same is not released, dismissed
or discharged within thirty (30) days after receipt of written demand from
Landlord. In any such event, and without grace period, demand or notice (the
same being hereby waived by Tenant), Landlord, in addition to all other rights
or remedies it may have, shall have the right thereupon or at any time
thereafter to terminate this Lease by giving notice to Tenant stating the date
upon which such termination shall be effective, and shall have the right, either
before or after any such termination, to re-enter and take possession of the
Premises, remove all persons and property from the Premises, store such property
at Tenant's expense, and sell such property if necessary to satisfy any
deficiency in payments by Tenant as required hereunder, all without notice or
resort to legal process and without being deemed guilty of trespass or becoming
liable for any loss or damage occasioned thereby. Nothing herein shall be
construed to require Landlord to give any notice before exercising any of its
rights and remedies provided for in Section 3.3 of this Lease. Notwithstanding
anything to the contrary herein contained, if Tenant commits any default
hereunder for or precedent to which or with respect to which notice is herein
required, and commits such defaults within twelve (12) months thereafter, no
notice shall thereafter be required to be given by Landlord as to or precedent
to any such subsequent default during such twelve (12) month period (as Tenant
hereby waiving the same) before exercising any or all remedies available to
Landlord.
Section 18.2. Right to Relet.
If Landlord re-enters the Premises as above provided, or if it takes
possession pursuant to legal proceedings or otherwise, it may either terminate
this Lease, but Tenant shall remain liable for all obligations arising during
the balance of the original stated term as hereafter provided as if this Lease
had remained in full force and effect, or it may, from time to time, without
terminating this Lease, make such alterations and repairs as it deems advisable
to relet the Premises, and relet the Premises or any part thereof for such term
or terms (which may extend beyond the Lease Term) and at such rentals and upon
such other terms and conditions as Landlord in its sole discretion deems
advisable; upon each such reletting all rentals received by Landlord therefrom
shall be applied, first, to any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to pay any costs and expenses of reletting,
including brokers and attorneys' fees and costs of alterations and repairs;
third, to rent due hereunder, and the residue, if any, shall be held by Landlord
and applied in payment of future rent as it becomes due hereunder.
If rentals received from such reletting during any month are less than that
to be paid during that month by Tenant hereunder, Tenant shall immediately pay
any such deficiency to Landlord. No re-entry or taking possession of the
Premises by Landlord shall be construed as an election to terminate this Lease
unless a written notice of such termination is given by Landlord.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter terminate this Lease for any prior breach or default. If
Landlord terminates this Lease for any breach, or otherwise takes any action on
account of Tenant's breach or default hereunder, in addition to any other
remedies it may have, it may recover from Tenant all damages incurred by reason
of such breach or default, including the cost of recovering the Premises,
brokerage fees and expenses of placing the Premises in rentable condition,
attorneys' fees, and an amount equal to the difference between the Minimum Rent
and all items of additional rents reserved hereunder for the period which
otherwise would have constituted the balance of the Lease Term and the then
present rental value of the Premises for such period, both discounted in
accordance with accepted financial practice to the then present worth, at the
average rate established and announced for United States Treasury Bills, with a
maturity of thirteen (13) weeks at the four (4) weekly auctions held immediately
prior to the date of such termination [the four (4) week average xxxx rate], all
of which shall immediately be due and payable by Tenant to Landlord. In
determining the rental value of the Premises, the rental realized by any
reletting, if such reletting be accomplished by Landlord within a reasonable
time after the termination of this Lease, shall be deemed prima facie to be the
rental value, but if Landlord shall not undertake to relet or having undertaken
to relet, has not accomplished reletting, then it will be conclusively presumed
that the Minimum Rent and all items of additional rent reserved under this Lease
represent the rental value of the Premises for the purposes herein (in which
event Landlord may recover from Tenant, the full total of all Minimum Rent and
all items of additional rent due hereunder, discounted to present value as
hereinbefore provided). Landlord shall, however, account to Tenant for the
Minimum Rent and additional rents received from persons using or occupying the
Premises during the period representing that which would have constituted the
balance of the Lease Term, but only at the end of said period, and only if
Tenant shall have paid to Landlord its damages as provided herein, and only to
the extent of sums recovered from Tenant as Landlord's damages, Tenant waiving
any claim to any surplus. Nothing herein contained, however, shall limit or
prejudice the right of Landlord to prove and obtain as damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved.
Tenant's obligation to reimburse Landlord for attorneys' fees as referred
to in this Lease shall include all reasonable legal costs, fees and expenses
arising out of (i) Tenant's default in the performance or observance of any of
the terms, covenants, conditions or obligations contained in this Lease and
Landlord places the enforcement of all or any part of this Lease, the collection
of any rent due or to become due or the recovery of possession of the Premises
in the hands of an attorney or (ii) Landlord's incurring any fees or out of
pocket costs in any litigation, negotiation or transaction in which Tenant
causes Landlord to be involved or concerned, in either event regardless of
whether or not suit is actually filed.
In the event of any breach or threatened breach by Tenant of any of the
terms and provisions of this Lease, Landlord shall have the right to injunctive
relief as if no other remedies were provided for herein for such breach.
Any rights and remedies reserved by, or granted to, Landlord under this
Lease, at law or in equity, are distinct, separate and cumulative, and the
exercise of any one of them shall not be deemed to preclude, waive or prejudice
Landlord's right to exercise any or all others.
Tenant expressly waives any right to assert a defense based on merger and
agrees that neither the commencement of any action or proceeding, nor the
settlement thereof, nor the entry of judgment therein, shall bar Landlord from
bringing any subsequent actions or proceedings from time to time.
Wherever in this Lease Landlord has reserved or is granted the right of
"reentry" into the Premises, the use of such word is not intended, nor shall it
be construed, to be limited to its technical legal meaning.
Tenant waives and releases any claim arising out of or related to the
payment of percentage rent by any successor tenant in the Premises, to whom
Landlord may relet the Premises. , but nothing contained herein shall obligate
Landlord to relet if Tenant shall default hereunder.
Except as otherwise specifically required by this Lease, Tenant waives any
and all statutory and legal notice requirements.
Any action, suit or proceeding relating to, arising out of or in connection
with the terms, conditions and covenants of this Lease shall may be brought by
Landlord against Tenant in the Circuit or Superior Court of Orange Xxxxxx
County, California. Indiana Tenant hereby waives any objection to jurisdiction
or venue in any proceeding before said Court. Nothing contained herein shall
affect the right of Landlord to bring any action, suit or proceeding against
Tenant in the courts of any other jurisdictions.
Section 18.3. Counterclaim.
If Landlord commences any proceedings for non-payment of rent (Minimum
Annual Rent, Percentage Rent or additional rent), Tenant will not interpose any
permissive or noncompulsory or mandatory counterclaim. required by the
applicable procedural rules of the Court. The covenants to pay rent and other
amounts hereunder are independent covenants and Tenant shall have no right to
hold back, offset or fail to pay any such amounts for default by Landlord or any
other reason whatsoever.
Section 18.4. Waiver of Rights of Redemption.
To the extent permitted by law, Landlord and Tenant waives any and all
rights of redemption granted by or under any present or future laws if Tenant is
evicted or dispossessed for any cause, or if Landlord obtains possession of the
Premises due to Tenant's default hereunder or otherwise.
Section 18.5. Waiver of Trial by Jury.
To the extent permitted by applicable law, Tenant hereby waives trial by
jury in any action, proceeding or counterclaim brought by either party against
the other on any matter whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant created hereby, Tenant's use
or occupancy of the Premises or any claim or injury or damage.
Section 18.6. Bankruptcy.
A. Assumption of Lease. In the event Tenant shall become a Debtor under
Chapter 7 of the Bankruptcy Code ("Code") or a petition for reorganization or
adjustment of debts is filed concerning Tenant under Chapters 11 or 13 of the
Code, or a proceeding is filed under Chapter 7 and is transferred to Chapters 11
or 13, the Trustee or Tenant, as Debtor and as Debtor-In-Possession, may not
elect to assume this Lease unless, at the time of such assumption, the Trustee
or Tenant has:
1. Cured or provided Landlord "Adequate Assurance" (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee or
Tenant will cure all monetary defaults under this Lease and compensate Landlord
for any actual pecuniary loss resulting from any existing default, including
without limitation, Landlord's reasonable costs, expenses, accrued interest as
set forth in Section 4.2 of the Lease, and attorneys' fees incurred as a result
of the default;
(b) Within thirty (30) days from the date of such assumption the Trustee or
Tenant will cure all non-monetary defaults under this Lease; and
(c) The assumption will be subject to all of the provisions of this Lease.
2. For purposes of this Section 18.6, Landlord and Tenant acknowledge that,
in the context of a bankruptcy proceeding of Tenant, at a minimum "Adequate
Assurance" shall mean:
(a) The Trustee or Tenant has and will continue to have sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the Trustee or Tenant will have
sufficient funds to fulfill the obligations of Tenant under this Lease, and to
keep the Premises stocked with merchandise and properly staffed with sufficient
employees to conduct a fully-operational, actively promoted business in the
Premises; and
(b) The Bankruptcy Court shall have entered an Order segregating sufficient
cash payable to Landlord and/or the Trustee or Tenant shall have granted a valid
and perfected first lien and security interest and/or mortgage in property of
Trustee or Tenant acceptable as to value and kind to Landlord, to secure to
Landlord the obligation of the Trustee or Tenant to cure the monetary and/or
non-monetary defaults under this Lease within the time periods set forth above;
and
(c) The Trustee or Tenant at the very least shall deposit a sum equal to
one (1) month's rent to be held by Landlord (without any allowance for interest
thereon) to secure Tenant's future performance under the Lease.
B. Assignment of Lease. If the Trustee or Tenant has assumed the Lease
pursuant to the provisions of this Section 18.6 for the purpose of assigning
Tenant's interest hereunder to any other person or entity, such interest may be
assigned only after the Trustee, Tenant or the proposed assignee have complied
with all of the terms, covenants and conditions of Section 13.1 herein,
including, without limitation, those with respect to additional rent and the use
of the Premises only as permitted in Article VIII herein; Landlord and Tenant
acknowledging that such terms, covenants and conditions are commercially
reasonable in the context of a bankruptcy proceeding of Tenant. Any person or
entity to which this Lease is assigned pursuant to the provisions of the Code
shall be deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of such assignment.
Any such assignee shall upon request execute and deliver to Landlord an
instrument confirming such assignment.
C. Adequate Protection. Upon the filing of a petition by or against Tenant
under the Code, Tenant, as Debtor and as Debtor-in-Possession, and any Trustee
who may be appointed agree to adequately protect Landlord as follows:
(1) To perform each and every obligation of Tenant under this Lease until
such time as this Lease is either rejected or assumed by Order of the Bankruptcy
Court; and
(2) To pay all monetary obligations required under this Lease, including
without limitation, prorated from the date of filing until the date of rejection
or assumption of the Lease or the payment of Minimum Monthly Rent, and such
other additional rent charges payable hereunder which is considered reasonable
compensation for the use and occupancy of the Premises; and
(3) Provide Landlord a minimum thirty (30) days prior written notice,
unless a shorter period is agreed to in writing by the parties, of any
proceeding relating to any assumption of this Lease or any intent to abandon the
Premises, which abandonment shall be deemed a rejection of this Lease; and
(4) To perform to the benefit of Landlord otherwise required under the
Code.
The failure of Tenant to comply with the above shall result in an automatic
rejection of this Lease.
D. Accumulative Rights. The rights, remedies and liabilities of Landlord
and Tenant set forth in this Section 18.6 shall be in addition to those which
may now or hereafter be accorded, or imposed upon, Landlord and Tenant by the
Code. -------------------
ARTICLE XIX
DEFAULT BY LANDLORD
Section 19.1. Default Defined, Notice.
Landlord shall in no event be charged with default in any of its
obligations hereunder unless and until Landlord shall have failed to perform
such obligations within thirty (30) days (or such additional time as is
reasonably required to correct any such default) after written notice to
Landlord by Tenant, specifically describing such failure.
Section 19.2. Notice to First Mortgagee.
If the holder of the first mortgage covering the Premises shall have given
written notice to Tenant of the address to which notices to such holder are to
be sent, Tenant shall give such holder written notice simultaneously with any
notice given to Landlord of any default of Landlord, and if Landlord fails to
cure any default asserted in said notice within the time provided above, Tenant
shall notify such holder in writing of the failure to cure, and said holder
shall have the right but not the obligation, within thirty (30) days after
receipt of such second notice, to cure such default before Tenant may take any
action by reason of such default.
ARTICLE XX
TENANT'S PROPERTY
Section 20.1. Taxes on Leasehold.
Tenant shall be responsible for and shall pay before delinquent all
municipal, county, federal or state taxes coming due during or after the Lease
Term against Tenant's interest in this Lease or against personal property of any
kind owned or placed in, upon or about the Premises by Tenant.
Section 20.2. Assets of Tenant. INTENTIONALLY DELETED.
ARTICLE XXI
ACCESS BY LANDLORD
Section 21.1. Right of Entry.
Landlord, its agents and employees shall have the right to enter the
Premises from time to time at reasonable times to examine the same, show them to
prospective purchasers and other persons, and upon reasonable prior notice to
Tenant, make such repairs, alterations, improvements or additions as Landlord
deems desirable. Except as herein provided, rent shall not xxxxx while any such
repairs, alterations, improvements, or additions are being made. During the last
six (6) months of the Lease Term, Landlord may exhibit the Premises to
prospective tenants. and maintain upon the Premises notices deemed advisable by
Landlord. In addition, during any apparent emergency, Landlord or its agents may
enter the Premises forcibly without liability therefor and without in any manner
affecting Tenant's obligations under this Lease. Nothing herein contained,
however, shall be deemed to impose upon Landlord any obligation, responsibility
or liability whatsoever, for any care, maintenance or repair except as otherwise
herein expressly provided. During any entry into the Premises Landlord shall use
its best efforts to minimize interference with Tenant's business operations.
Notwithstanding anything to the contrary contained in this Lease, in the event
that due to any entry by or on behalf of Landlord into the Premises, the
Premises are rendered wholly or partially untenantable, then during the period
of such untenantablity all rent and charges shall xxxxx in proportion to the
degree to which Tenant's use of the Premises is impaired.
ARTICLE XXII
HOLDING OVER, SUCCESSORS
Section 22.1. Holding Over.
If Tenant holds over or occupies the Premises beyond the Lease Term (it
being agreed there shall be no such holding over or occupancy without Landlord's
written consent), no tenancy or interest in the Premises shall result therefrom
but such holding over shall be subject to immediate eviction and removal, and
effective upon notice from Landlord to Tenant, Tenant shall pay Landlord for
each day of such holding over a sum equal to the greater of (a) one hundred
fifty percent (150%) twice the Minimum Monthly Rent prorated for the number of
days of such holding over, or (b) Minimum Annual Rent plus Percentage Rent
prorated for the number of days of such holding over, plus, whichever of (a) or
(b) is applicable, a prorata portion of all other amounts which Tenant would
have been required to pay hereunder had this Lease been in effect.
Section 22.2. Successors.
All rights and liabilities herein given to or imposed upon the respective
parties hereto shall bind and inure to the several respective heirs, successors,
administrators, executors and assigns of the parties and if Tenant is more than
one (1) person, they shall be bound jointly and severally by this Lease except
that no rights shall inure to the benefit of any assignee or subtenant of Tenant
unless the assignment or sublease was approved by Landlord in writing as
provided in Section 13.1 hereof. Landlord, at any time and from time to time,
may make an assignment of its interest in this Lease and, in the event of such
assignment, Landlord and its successors and assigns (other than the assignee of
Landlord's interest in this Lease) shall be released from any and all liability
thereafter accruing hereunder.
ARTICLE XXIII
QUIET ENJOYMENT
Section 23.1. Landlord's Covenant.
If Tenant pays the rents and other amounts herein provided, observes and
performs all the covenants, terms and conditions hereof, Tenant shall peaceably
and quietly hold and enjoy the Premises for the Lease Term without interruption
by Landlord or any person or persons claiming by, through or under Landlord,
subject, nevertheless, to the terms and conditions of this Lease.
ARTICLE XXIV
MISCELLANEOUS
Section 24.1. Waiver.
No waiver by Landlord or Tenant of any breach of any term, covenant or
condition hereof shall be deemed a waiver of the same or any subsequent breach
of the same or any other term, covenant or condition. The acceptance of rent by
Landlord shall not be deemed a waiver of any earlier breach by Tenant of any
term, covenant or condition hereof, regardless of Landlord's knowledge of such
breach when such rent is accepted. No covenant, term or condition of this Lease
shall be deemed waived by Landlord or Tenant unless waived in writing.
Section 24.2. Accord and Satisfaction.
Landlord is entitled to accept, receive and cash or deposit any payment
made by Tenant for any reason or purpose or in any amount whatsoever, and apply
the same at Landlord's option to any obligation of Tenant and the same shall not
constitute payment of any amount owed except that to which Landlord has applied
the same. No endorsement or statement on any check or letter of Tenant shall be
deemed an accord and satisfaction or otherwise recognized for any purpose
whatsoever. The acceptance of any such check or payment shall be without
prejudice to Landlord's right to recover any and all amounts owed by Tenant
hereunder and Landlord's right to pursue any other available remedy.
Section 24.3. Entire Agreement.
There are no representations, covenants, warranties, promises, agreements,
conditions or undertakings, oral or written, between Landlord and Tenant other
than herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless in writing and signed by them. Tenant acknowledges
that it has independently investigated the potential for the success of its
operations in the Center and has not relied upon any inducements or
representations on the part of Landlord or Landlord's representatives, other
than those contained in the Lease. Tenant also acknowledges and agrees that, to
the extent any projections, materials or discussions have related to Tenant's
projected or likely sales volume, customer traffic or profitability, Tenant
understands that any and all such projections, materials and discussions are
based solely upon Landlord's experiences at other properties or upon
standardized marketing studies, and that such projections, materials and
discussions shall not be construed as a promise or guarantee that Tenant will
realize the same or similar results.
Section 24.4. No Partnership.
Landlord does not, in any way or for any purpose, become a partner,
employer, principal, master, agent or joint venturer of or with Tenant.
Section 24.5. Force Majeure.
If either party hereto shall be delayed or hindered in or prevented from
the performance of any act required hereunder by reason of strikes, lockouts,
labor troubles, inability to procure material, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war, environmental
remediation work whether ordered by any governmental body or voluntarily
initiated or other reason of a like nature not the fault of the party delayed in
performing work or doing acts required under this Lease, the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay. Notwithstanding the foregoing, from and after the
Commencement Date the provisions of this Section 24.5 shall at no time operate
to excuse Tenant from the obligation to open for business on the Commencement
Date, except in the event of an industry wide strike, nor any obligations for
payment of Minimum Annual Rent, Percentage Rent, additional rent or any other
payments required by the terms of this Lease when the same are due, and all such
amounts shall be paid when due. In the event Tenant encounters any of the
foregoing prior to the Commencement Date, the Commencement Date shall be
postponed by a period equal to the length of any such prevention, delay or
stoppage, but in to no event shall the Commencement Date be postponed to a date
later than the date Tenant initially opens the Premises for business to the
public.
Section 24.6. Submission of Lease.
Submission of this Lease to Tenant does not constitute an offer to lease;
this Lease shall become effective only upon execution and delivery thereof by
Landlord and Tenant. Upon execution of this Lease by Tenant, Landlord is granted
an irrevocable option for fifteen (15) sixty (60) days to execute this Lease
within said period and thereafter return a fully executed copy to Tenant. The
effective date of this Lease shall be the date filled in on Page 1 hereof by
Landlord, which shall be the date of execution by the last of the parties to
execute the Lease.
Section 24.7. Notices.
All notices and other communications ("Notice") to be given hereunder by
either party shall be written and sent by registered or certified mail, return
receipt requested, postage pre-paid or by an express mail delivery service,
addressed to the party intended to be notified at the address set forth in
Article I. Either party may, at any time, or from time to time, notify the other
in writing of a substitute address for that above set forth, and thereafter
notices shall be directed to such substitute address. Notice given as aforesaid
shall be sufficient service thereof and shall be deemed given as of the date
received or the date on which delivery is first refused, as evidenced by the
return receipt of the registered or certified mail or the express mail delivery
receipt, as the case may be. A duplicate copy of all notices from Tenant shall
be sent to any mortgagee as provided for in Section 19.2.
Section 24.8. Captions and Section Numbers.
This Lease shall be construed without reference to titles of Articles and
Sections, which are inserted only for convenience of reference.
Section 24.9. Number and Gender.
The use herein of a singular term shall include the plural and use of the
masculine, feminine or neuter genders shall include all others.
Section 24.10. Objection to Statements. INTENTIONALLY DELETED.
Section 24.11. Representation by Tenant.
If Tenant is or will be a corporation, the persons executing this Lease on
behalf of Tenant hereby covenants and warrants that Tenant is a duly qualified
corporation authorized to do business in the state where the Center is located,
that all franchise and corporate taxes have been paid to date and all future
forms, reports, fees and other documents necessary to comply with applicable
laws will be filed when due, and the person signing this Lease on behalf of the
corporation is an officer of Tenant, and is duly authorized to sign and execute
this Lease.
Tenant hereby represents and warrants that (a) there are no proceedings
pending or so far as Tenant knows threatened before any court or administrative
agency that would materially adversely affect the financial condition of Tenant,
the ability of Tenant to enter into this Lease or the validity or enforceability
of this Lease; (b) there is no provision of any existing mortgage, indenture,
contract or agreement binding on Tenant which would conflict with or in any way
prevent the execution, delivery or performance of the terms of this Lease; (c)
the financial statement of Tenant provided to Landlord in connection with this
Lease are complete and correct and fairly present the financial condition of
Tenant as of the date and for the period referred to therein and have been
prepared in accordance with generally accepted accounting principles
consistently applied; and (d) there has been no material adverse change in the
financial condition of Tenant since the date of such financial statement and to
the knowledge of Tenant, no such material adverse changes are pending or
threatened. Tenant acknowledges that Landlord is executing this Lease in
reliance upon the foregoing representation and warranty and that such
representation and warranty is a material element of the consideration inducing
Landlord to enter into and execute this Lease.
Section 24.12. Joint and Several Liability.
If Tenant is a partnership or other business organization the members of
which are subject to personal liability, the liability of each such member shall
be deemed to be joint and several.
Section 24.13. Limitation of Liability.
Anything to the contrary herein notwithstanding, no general or limited
partner of the Landlord, or any general or limited partner of any partner of the
Landlord, or any shareholder of any corporate partner of any partner of the
Landlord, or any other holder of any equity interest in the Landlord, or in any
entity comprising the Landlord or its partners, shall be personally liable with
respect to any of the terms, covenants, conditions and provisions of this Lease,
or the performance of Landlord's obligations under this Lease, nor shall
Landlord or any of said constituent parties have any liability to Tenant for any
consequential damages such as, but not limited to, lost profits. The liability
of Landlord for Landlord's obligations under this Lease shall be limited to
Landlord's interest in the Center, and Tenant shall look solely to the interest
of Landlord, its successors and assigns, in the Center, for the satisfaction of
each and every remedy of Tenant against Landlord. Tenant shall not look to any
of Landlord's other assets seeking either to enforce Landlord's obligations
under this Lease, or to satisfy any money or deficiency judgment for Landlord's
failure to perform such obligations, such exculpation of personal liability is
and shall be absolute and without any exception whatsoever.
The term "Landlord" shall mean only the owner at the time in question of
the present Landlord's interest in the Center. In the event of a sale or
transfer of the Center (by operation of law or otherwise) or in the event of the
making of a lease of all or substantially all of the Center, or in the event of
a sale or transfer (by operation of law or otherwise) of the leasehold estate
under any such lease, the grantor, transferor or lessor, as the case may be,
shall be and hereby is (to the extent of the interest or portion of the Center
or leasehold estate sold, transferred or leased) automatically and entirely
released and discharged, from and after the date of such sale, transfer or
leasing of all liability with respect of the performance of any of the terms of
this Lease on the part of Landlord thereafter to be performed; provided that the
purchaser, transferee or lessee (collectively, "Transferee") shall be deemed to
have assumed and agreed to perform, subject to the limitations of this Section
(and without further agreement between the other parties hereto, or among such
parties and the Transferee) and only during and in respect of the Transferee's
period of ownership of the Landlord's interest under this Lease, all of the
terms of this Lease on the part of Landlord to be performed during such period
of ownership, it being intended that Landlord's obligations hereunder shall, as
limited by this Section, be binding on Landlord, its successors and assigns only
during and in respect of their respective, successive periods of ownership.
Section 24.14. Broker's Commission.
Except for Tenant's agreement with BDH Associates, each party represents
and warrants that it has caused or incurred no claims for brokerage commissions
or finder's fees in connection with the execution of this Lease, and each party
shall indemnify and hold the other harmless against and from all liabilities
arising from any such claims caused or incurred by it (including without
limitation, the cost of attorneys' fees in connection therewith).
Section 24.15. Partial Invalidity.
If any provision of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby and each provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law. ; provided, however, if Tenant's
obligation to pay Percentage Rent or Tenant's obligation to continuously operate
its business in the Premises is deemed invalid or unenforceable as determined by
Landlord based upon the then applicable statutes or case law, then Landlord may,
at any time thereafter, terminate this Lease by giving Tenant notice of its
election, and this Lease shall terminate and become null and void thirty (30)
days after said notice.
Section 24.16. Recording.
The parties agree not to place this Lease of record but each party shall,
at the request of the other, execute and acknowledge so that the same may be
recorded a Short Form Lease or Memorandum of Lease, indicating the Lease Term,
but omitting rent and other terms, and an Agreement specifying the date of
commencement and termination of the Lease Term; provided, however, that the
failure to record said Short Form Lease, Memorandum of Lease or Agreement shall
not affect or impair the validity and effectiveness of this Lease. The party
requesting the instrument Tenant shall pay all costs, taxes, fees and other
expenses in connection with or prerequisite to recording.
Section 24.17. Applicable Law.
This Lease shall be construed under the laws of the state where the Center
is located.
Section 24.18. Mortgagee's Approval. INTENTIONALLY DELETED.
Section 24.19. Unrelated Business Taxable Income.
A. If at any time and from time to time during the term of this Lease,
Landlord is advised by its counsel or counsel to a tax exempt partner of the
managing partner of Landlord that any provision of this Lease, including without
limitation the provisions relating to the payment of rent and additional rent,
or the absence of any provision might give rise to unrelated business taxable
income within the meaning of sections 512 of the Internal Revenue Code of 1986,
as amended, or the regulations issued thereunder, or may jeopardize the
tax-exempt status of any partner in Landlord or any partner in a partnership
that is a partner in Landlord, or may prevent any such partner from obtaining
such tax-exempt status, then this Lease shall may be unilaterally amended by
Landlord in such manner as shall meet the requirements reasonably specified by
counsel for Landlord and Tenant agrees that it will execute all documents or
instruments reasonably necessary to effect such amendments, provided that no
such amendment shall increase Tenant's obligations nor decrease Tenant's rights,
nor result on an estimated or actual basis in Tenant having to pay in the
aggregate more on account of its occupancy of the Premises than it would be
required to pay under the terms of this Lease, or having to receive fewer
services or services of lesser quality than it is presently entitled to receive
under this Lease.
B. Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option, be furnished from time to
time, in whole or in part, by employees of Landlord or the managing agent of the
Project or its employees or by one or more third persons hired by Landlord or
the managing agent of the Project. Tenant agrees that upon Landlord's written
request it will enter into direct agreements with the managing agent of the
Project or other parties designated by Landlord for the furnishing of any such
services required to be furnished by Landlord herein, in form and content
approved by Landlord, provided, however, that no such contract shall result on
an estimated or actual basis in Tenant having to pay in the aggregate more money
on account of its occupancy of the Premises under the terms of this Lease, or
having to receive fewer services or services of a lesser quality than it is
presently entitled to receive under this Lease.
Section 24.20. Parties To Have No Liability If Shopping Center Not Open.
INTENTIONALLY DELETED.
Section 24.21. Landlord's Contribution Toward Tenant's Work.
Within thirty (30) days after the date When Tenant has completed all of
Tenant's Work in strict accordance with Exhibit "B" and "B-2" by the Required
Completion Date and furnishes evidence reasonably satisfactory to Landlord of
such completion and that all of Tenant's Work has been paid for in full and no
liens have attached or may attach as the result thereof, provided that Tenant
shall not be required to provide lien waivers or other proof as to contractors
or materialmen having contracts involving $10,000.00 or less each, and no
default in, breach of, or failure to perform, this Lease exists after notice and
expiration of the applicable cure period, and Tenant has paid or reimbursed
Landlord all amounts owed to Landlord pursuant to this Lease and has opened its
store for business and accepted the Premises in writing in a form reasonably
prescribed by Landlord or its mortgagee, and has executed such other instruments
and documents as are required by Landlord's mortgagee to be executed, Landlord
shall pay to Tenant as Landlord's Contribution, if any, for Tenant's Work the
sum equal to the lesser of (i) $148,975.00, determined as provided for in
Section 2.1 hereof, or (ii) the actual cost of Tenant's Work (excluding trade
fixtures, furniture and furnishings or other personal property), and no more,
subject to Landlord's right to deduct any Minimum Rent, Percentage Rent,
additional rent, expenditures by Landlord pursuant to Section 10.3 of the Lease,
or other amounts owed by Tenant to Landlord pursuant to the terms of this Lease
as of the date of payment. Landlord's Contribution shall be used only for
alterations, improvements, fixtures and equipment that become part of or
attached or affixed to the Premises, but excluding trade fixtures, furniture and
furnishings or other personal property. If any portion of Landlord's
Contribution is not paid by Landlord to Tenant when due, such sum shall bear
interest at the rate of ten percent (10%) per annum from the date due until
paid.
Section 24.22 Addendum.
Notwithstanding anything contained in this Lease to the contrary, Landlord
shall not lease space to any other tenant in Landlord's Tract for the primary
purpose of operating a toy store ("Additional Toy Store"), except for a maximum
of two (2) Additional Toy Stores each with space of 2,000 square feet or less.
In the event Landlord violates this covenant, then Tenant shall pay to Landlord,
in lieu of Minimum Annual Rent and Percentage Rent, six percent (6%) of monthly
Adjusted Gross Sales effective upon the date such Additional Toy Store opens for
business and such reduction shall continue until such time as such Additional
Toy Store ceases operating its business in Landlord's Tract. The provisions of
this Section 24.22 shall only be effective so long as Tenant continues, subject
to Section 24.5, to remain open and is operating its business in accordance with
the Permitted Use terms, conditions and covenants of this Lease and is not
otherwise in default of the terms, conditions and covenants of this Lease after
expiration of any applicable notice and cure period. For purposes of this
Section, a store shall be deemed to be used for the primary purpose of operating
a toy store if more than fifty percent (50%) or more of the store floor area is
devoted to the sale of toys.
Section 24.23 Addendum.
If either Landlord or Tenant institutes any action or proceeding against
the other relating to the provisions of this Lease or any default hereunder, the
nonprevailing party in such action or proceeding shall reimburse the prevailing
party for the reasonable expenses of attorneys fees and all costs and
disbursements incurred therein by the prevailing party, including, without
limitation, any such fees, costs and disbursements incurred on any appeal from
such action or proceeding. Subject to the provisions of local law, the
prevailing party shall recover all such fees, costs or disbursements as costs
taxable by the court or arbiter in the action or proceeding itself without the
necessity for a cross-action by the prevailing party.
Section 24.24. Special Construction Provision; Waiver of Construction
Chargebacks.
Notwithstanding anything herein in this Lease, any exhibits attached hereto
or any other documents incorporated herein, Tenant shall not be required to pay
or reimburse Landlord for any work performed by Landlord at Tenant's expense
(commonly referred to as "Construction Chargebacks") and Landlord hereby waives
all Construction Chargebacks therefor.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease
as of the day and year first above written.
(LANDLORD)
MISSION VIEJO ASSOCIATES, L.P., a California limited partnership
By: SIMON PROPERTY GROUP, L.P., a Delaware limited partnership, General Partner
By: SIMON PROPERTY GROUP, INC., a Delaware corporation, Managing General Partner
By:
Xxxxx Xxxxx, Chief Executive Officer
(TENANT)
If Corporation TOYS INTERNATIONAL
a California corporation
By:
Attest
DESCRIPTION OF TENANT'S WORK
I. TENANT'S WORK - The following work required to complete and place the
Premises in finished condition ready to open for business is to be performed by
the Tenant at the Tenant's own expense and shall be in addition to any work
described in the Tenant Information Handbook. Tenant's Work includes, but is not
limited to, the following: --------
A. GENERAL PROVISIONS: All work done by Tenant shall be governed in all
respects by, and be subject to the following:
1. Payment and Performance Bonds. Landlord shall have the right to require
Tenant to furnish payment and performance bonds or other security in form
satisfactory to Landlord for the prompt and faithful performance of Tenant's
Work, assuring completion of Tenant's Work and conditioned that Landlord will be
held harmless from payment of any claim either by way of damages or liens on
account of bills for labor or material in connection with Tenant's Work.
2. Tenant's Work Standards. All Tenant's Work shall conform to applicable
statutes, ordinances, regulations, codes, all requirements of Factory Mutual,
all rating bureaus, and the Tenant Information Handbook which contains the basic
architectural, electrical and mechanical information necessary for the
preparation of Tenant's Plans, and which by this reference is incorporated into
and made a part of this Lease. Tenant shall obtain and convey to Landlord all
approvals, tests and inspections with respect to electrical, HVAC, plumbing and
telephone work, all as may be required by any agency or utility company.
Landlord reserves the right to require changes in Tenant's Work when necessary
by reason of the aforementioned standards.
3. Landlord Approvals. No approval by Landlord or Tenant shall be deemed
valid unless in writing and signed. by Landlord.
4. Space Verification. Tenant shall be obligated to have its architect,
store planner, engineer or contractor conduct an on-site verification of all
dimensions and field conditions prior to proceeding with Tenant's Work.
5. Insurance Requirements. Prior to commencement of Tenant's Work and until
completion thereof, or commencement of the Lease Term, whichever is the last to
occur, Tenant shall effect and maintain Builder's Risk Insurance covering
Landlord, Landlord's general contractor, Tenant, Tenant's contractors and
Tenant's subcontractors, as their interest may appear against loss or damage by
fire, vandalism and malicious mischief and such other risks as are customarily
covered by a standard "All Risk" policy of insurance protecting against all risk
of physical loss or damage to all Tenant's Work in place and all materials
stored at the site of Tenant's Work, and all materials, equipment, supplies and
temporary structures of all kinds incidental to Tenant's Work, and equipment,
all while forming a part of or contained in such improvements or temporary
structures, or while on the Premises or within the Landlord's Tract, all to the
actual replacement cost thereof at all times on a completed value basis. In
addition, Tenant agrees to indemnify and hold Landlord harmless against any and
all claims for injury to persons or damage to property by reason of the use of
the Premises for the performance of Tenant's Work, and claims, fines, and
penalties arising out of any failure of Tenant or its agents, contractors and
employees to comply with any law, ordinance, code requirement, regulations or
other requirement applicable to Tenant's Work and Tenant agrees to require all
contractors and subcontractors engaged in the performance of Tenant's Work to
effect and maintain and deliver to Tenant and Landlord, certificates evidencing
the existence of, and covering Landlord, Tenant and Tenant's contractors, prior
to commencement of Tenant's Work and until completion thereof, the following
insurance coverages:
a. Workmen's Compensation and Occupational Disease insurance in accordance
with laws of the State in which the property is located and Employer's Insurance
to the limit of $100,000.00.
b. Commercial General Liability Insurance affording protection for bodily
injury, death, personal injury and property damage, and including coverage for
contractual liability, independent contractors, completed operations and
products liability with limits of not less than $3,000,000.00 combined single
limit per occurrence.
c. Comprehensive Automobile Liability Insurance, including coverage for
"non-owned" automobiles, for property damage, bodily injury, including death
resulting therefrom with limits of not less than $1,000,000.00 for any one
occurrence combined single limit.
d. Owners and contractors protective liability coverage for an amount not
less than $1,000,000.00.
6. Damage Deposit. Prior to commencement of construction in the Premises,
Tenant or its agent shall deliver a $1,000.00 damage deposit in the form of a
cashier's check made payable to Landlord. Landlord shall have the right to use
all or any part of said damage deposit as reimbursement for any damage caused by
Tenant or its contractors to any mall finishes. Any balance shall be refunded.
7. Temporary Services. Any temporary services required by Tenant during its
construction period, including, but not limited to, HVAC, plumbing, electrical
service and dumpster service for trash removal shall be secured by Tenant or
Tenant's agent at a specified cost per square foot of the Premises.
8. Impact Fees. Tenant shall pay impact fees assessed by applicable
governmental authorities having jurisdiction or reimburse Landlord for impact
fees paid on the Tenant's behalf.
9. Construction Rules. Tenant will abide by and cause its contractors,
subcontractors, agents and employees to abide by the reasonable rules and
regulations published by Landlord from time to time, including, but not limited
to, those pertaining to parking, toilet facilities, safety conduct, delivery of
materials and supplies, employee egress to the Center, trash storage or
collection or removal, and cooperation with Landlord's architect, general
contractor and subcontractors or other agents.
10. Reasonable Easement. Landlord specifically reserves the rights (and
Tenant shall permit Landlord or its employees, agents or contractors reasonable
access to the Premises for the purpose of exercising such rights), to install,
maintain, repair and replace in the ceiling space and/or under the concrete slab
in the Premises, all such electrical, plumbing, HVAC and other system components
that may be required to service the Common Areas or other tenants in the Center.
Adequate access panels or doors shall be incorporated into Tenant Work for
inspection, service and replacement of both Landlord and Tenant equipment.
B. STORE DESIGN AND CONSTRUCTION. This shall include, without limitation,
design and consulting fees, storefront and signing, interior partitions, all
interior finishes, visual merchandising and fixturing, furnishings and
equipment, lighting, plumbing, HVAC, mechanical and electrical systems
interface, all as described herein and in the Tenant Information Handbook. In
connection with Tenant's Work, Tenant shall file all drawings, plans and
specifications, pay all fees and obtain all permits and applications from
applicable governmental authorities having jurisdiction.
1. Roof. Tenant shall provide any required supports, blocking, temporary
flashing, counterflashing or other work necessary to complete installation of
Tenant's equipment on Landlord's roof. Cant strips and weatherproofing shall be
done only by contractor designated by Landlord. Tenant will be required to
supplement existing construction to achieve assembly ratings, thermal values or
additional criteria as required by Tenant's Work.
2. Floor Slab. Where required, lower level tenants shall provide 3000 PSI
concrete slab with welded wire mesh reinforcing.
3. Walls and Doors. Tenant shall furnish and install 5/8" fire-rated gypsum
board, taped, floated, airtight against the deck above on the interior of all
common partitions in the Premises. Where required by Landlord, Tenant shall
provide transfer air openings to match the rating of the partition. All other
interior partitions in the Premises shall be constructed of non-combustible
materials in accordance with applicable code requirements. Where required,
Tenant shall provide and install an exit door with hardware between the Premises
and the Common Area or to the service courts. Tenant will be responsible for
repair, maintenance and replacement of the exit doors from the time Tenant's
contractor commences Tenant's Work in the Premises. If panic hardware is
required, it shall be provided by Tenant.
4. Ceiling. All interior finishes beyond the exposed structural systems
will be made by Tenant. Ceilings may be required by the Landlord to maintain
assembly ratings and building system functions.
5. Utilities and Services. Tenant is responsible for all connections to the
following utilities to make a complete, approved and operating system:
a. HVAC System. Tenant will utilize Landlord-specified VAV box(es) and
temperature controls to complete HVAC system including toilet, process, kitchen
and thermal exhaust systems.
b. Plumbing. Tenant will complete waste, grease waste, water and vent
systems utilizing Landlord-supplied utilities.
c. Fire Protection. Modifications to automatic fire sprinkler system will
be performed by contractor designated by Landlord. This work may include, but
not be limited to, the cost of relocating, re-sizing, adding sprinkler mains or
heads, draining the system and fire watch during system down-time.
d. Natural Gas. If available, gas will be used only for food service
process loads. Tenant shall make all necessary arrangements for service to the
Premises and complete the installation.
e. Electrical. Tenant shall furnish and pull required wiring in empty
conduit provided by Landlord to a specified electrical room. Tenant shall
install all electrical improvements within the Premises. Tenant shall employ
contractor designated by Landlord to complete all connections to Landlord
switchgear and for fuse installation. Tenant shall furnish the required fuse.
Tenant shall provide necessary components and devices so that HVAC systems may
be interlocked with Landlord's energy management system.
f. Communication Services. Tenant shall make all necessary arrangements
with available vendor(s) for communication services to the Premises. Special
applications will require Landlord's written approval prior to proceeding with
the work.
g. Life Safety Systems. Tenant shall provide all required life safety
system components necessary to comply with code and complete Landlord's
monitoring and alarm systems. Installations shall be performed by contractor
designated by Landlord.
6. Special Equipment. Tenant shall provide, as required, alarm systems or
other protective devices, public address system, conveyors, time clocks,
delivery door buzzers, fire extinguishers, dry chemical fire protection systems
or any other equipment peculiar to Tenant's business needs.
7. Signing. Tenant will not erect any signs except in conformity with the
following:
a. The size of all Tenant's signs shall be limited. The scale and concept
of the enclosed mall requires the use of signs which are not larger than
necessary to be legible from within the mall. Thus except for department store
signs, Tenant's signs shall be located within the limits of its storefront and
shall not project more than six inches beyond the storefront and shall conform
to the following proportionate height criteria:
30-foot storefront 18" capitals 12" body
30 to 60-foot storefront 24" capitals 18" body
60-foot and over storefront 30" capitals 24" body
b. In addition to complying with the above criteria, signs in the enclosed
malls shall be limited in length to 70% of Tenant's frontage on the mall and
shall in no case exceed a length of thirty feet.
c. Painted or printed signs on the exterior surface of any building shall
be prohibited, except for those tenants who have exterior storefronts. In this
case, small-scale signs relative to store name and stating store hours may be
professionally lettered on the glass of the storefront subject to Landlord's
written approval.
d. Public safety decals on glass in minimum sizes to comply with applicable
Code, subject to the approval of Landlord, may be used as required by building
codes or other governmental regulations.
e. Paper signs, stickers, banners or flags are prohibited.
f. Except as otherwise approved in writing by Landlord, only one storefront
identification sign for Tenant will be permitted with the enclosed mall areas,
except that corner tenants may have two such signs.
g. Tenant shall not install any roof-top signs or pylon signs. No signs
will be permitted at the rear of any building.
C. CLOSE-OUT REQUIREMENTS. Tenant's Work shall be deemed completed at such
time as Tenant, at its sole expense and without cost to Landlord, shall provide:
1. Proof of Payment. Furnish evidence satisfactory to Landlord that all of
Tenant's Work has been completed and paid for in full, provided that Tenant
shall not be required to provide lien waivers or other proof as to contractors
or materialmen having contracts involving $10,000.00 or less each, (and that
such work has been accepted by Landlord), including the costs for Tenant's Work
that may have been done by Landlord and the costs for any other work done by
Landlord which Landlord may be entitled to payment in accordance with the
provisions of this Exhibit "B", the Tenant Information Handbook, or elsewhere in
the Lease, that any and all liens therefor that have been or might be filed have
been discharged of record or waived, and that no security interests relating
thereto are outstanding.
2. Tenant's Affidavit. Furnish an affidavit from Tenant listing all
contractors and any material suppliers in the employ of said Tenant who have
provided goods or services for the completion of Tenant's Work in the Premises.
3. Tenant Contractor's Affidavit. Furnish an affidavit from Tenant's
general contractor listing all parties who have furnished materials or labor or
services to that contractor for completion of Tenant's Work in the Premises.
4. Certificate of Occupancy. Furnish all certificates and other approvals
with respect to Tenant's Work that may be required from any governmental
authority and any board of fire underwriter's or similar body for the use and
occupancy of the Premises.
5. Record Drawings. Furnish Landlord with one set of reproducible record
drawings of the Premises showing any changes made during construction.
6. Estoppel Certificate. Furnish a Tenant-executed estoppel certificate as
may be required by Landlord or Landlord's mortgagee.
GUARANTY
FOR VALUE RECEIVED, and in consideration of the execution of a certain
Lease of even date herewith and concurrently herewith covering certain premises
in the Mission Viejo Mall Shopping Center, the creation of the tenancy under
said Lease and the extension of credit by Mission Viejo Associates, L.P., a
California limited partnership (Landlord) to Play Co. Toys International &
Entertainment Corp., a California Delaware corporation (Tenant), and for the
purpose of inducing Landlord to enter into such Lease, the undersigned, jointly
and severally, do hereby absolutely and unconditionally guarantee to Landlord,
its successors and assigns, the full and prompt payment when due, of all rents,
charges and additional sums coming due under said Lease, together with the
performance of all covenants and agreements of the Tenant therein contained and
together with the full and prompt payment of all damages that may arise or be
incurred by Landlord in consequence of Tenant's failure to perform such
covenants and agreements (all such obligations hereinafter collectively referred
to as "Liabilities"), and the undersigned further agree to pay all expenses,
including attorneys' fees and legal expenses, paid or incurred by Landlord in
endeavoring to collect or enforce the Liabilities or any part thereof and in
enforcing this guaranty, such payment and performance to be made or performed by
the undersigned forthwith upon a default by Tenant.
In the event of the death, incompetency, dissolution, bankruptcy or
insolvency of Tenant, or the inability of Tenant to pay debts as they mature, or
an assignment by Tenant for the benefit of creditors, or the institution of any
bankruptcy or other proceedings by or against Tenant alleging that Tenant is
insolvent or unable to pay debts as they mature, or Tenant's default under this
Lease, and if such event shall occur at a time when any of the Liabilities may
not then be due and payable, the undersigned agree to pay to Landlord upon
demand, the full amount which would be payable hereunder by the undersigned if
all Liabilities were then due and payable.
This Guaranty shall be an absolute and unconditional guaranty and shall
remain in full force and effect as to the undersigned during the demised term of
said Lease, and any renewal or extension thereof, and thereafter so long as any
Liabilities remain due and payable even though the demised term or any renewal
or extension thereof shall have expired. An Assignment of said Lease or any
subletting thereunder shall not release or relieve the undersigned from their
liability hereunder.
Landlord may, from time to time, without notice to the undersigned: (a)
retain or obtain a security interest in any property to secure any of the
Liabilities or any obligation hereunder, (b) retain or obtain the primary or
secondary liability or any party or parties, in addition to the undersigned,
with respect to any of the Liabilities, (c) extend or renew for any period
(whether or not longer than the original period), alter or exchange said Lease
or any of the Liabilities, (d) release, waive or compromise any liability of any
of the undersigned hereunder or any liability of any other party or parties
primarily or secondarily liable on any of the Liabilities, (e) release or impair
any security interest or lien, if any, in all or any property securing any of
the Liabilities or any obligation hereunder and permit any substitution or
exchange for any such property, and (f) resort to the undersigned for payment of
any of the Liabilities, whether or not Landlord shall have resorted to any
property securing any of the Liabilities or any obligation hereunder or shall
have proceeded against any other of the undersigned or against Tenant or any
other party primarily or secondarily liable on any of the Liabilities. No such
action or failure to act by Landlord shall affect the undersigned's liability
hereunder in any manner whatsoever. Any amount received by Landlord from
whatsoever source and applied by it toward the payment of the Liabilities shall
be applied in such order of application as Landlord may from time to time elect.
The undersigned hereby expressly waive: (a) notice of the acceptance of
this Guaranty, (b) notice of the existence, creation, amount, modification,
amendment, alteration or extension of the Lease or all or any of the
Liabilities, whether or not such notice is required to be given to Tenant under
the terms of the Lease, (c) presentment, demand, notice of dishonor, protest,
and all other notices whatsoever, (d) any benefit of valuation, appraisement,
homestead or other exemption law, now or hereafter in effect in any jurisdiction
in which enforcement of this Guaranty is sought, and (e) all diligence in
collection, perfection or protection of or realization upon the Liabilities or
any thereof, any obligation hereunder, or any security for any of the foregoing.
No delay on the part of Landlord in the exercise of any right or remedy
shall operate as a waiver thereof, and no final or partial exercise by Landlord
of any right or remedy shall preclude other or further exercises thereof or the
exercises of any other right or remedy.
The validity of this Guaranty and the obligations of the undersigned
hereunder shall not be terminated, affected or impaired by reason of any action
which Landlord may take or fail to take against Tenant or by reason of any
waiver of, or failure to enforce, any of the rights or remedies reserved to
Landlord in said Lease, or otherwise, or by reason of the bankruptcy or
insolvency of Tenant and whether or not the term of said Lease shall terminate
by reason of said bankruptcy or insolvency.
This Guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned and shall be
governed by the laws of the State of California. Indiana.
If this Guaranty is executed by a corporation, association, partnership
(general or limited), joint venture, syndicate, trust or any other type of
organization other than individuals, the individual signatories hereto
undersigned represents and warrants that they, the individual signatories
hereto, and each of them, are duly authorized to execute this Guaranty for and
on behalf of such organization and that such organization is the sole owner of
all ownership interest in the Tenant.
IN WITNESS WHEREOF, the undersigned have executed this instrument, or
caused this instrument to be executed by its officers, duly authorized in the
premises, on this _______ day of _______________, 19_____.
Attest Play Co. Toys & Entertainment Corp.
______________________________________ By:__________________________________
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000 Xxxxxxxxx Xxxxx
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Xxx Xxxxxx Xxxxxxxxxx 00000
