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Exhibit 10.19
AGREEMENT OF LEASE
BETWEEN
BELLWETHER PROPERTIES OF MASSACHUSETTS,
LIMITED PARTNERSHIP
AND
THE LIMITED STORES, INC.
d/b/a "The Limited"
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ................................................. 1-1
ARTICLE 2 CONSTRUCTION
Section 2.1 Tenant's Work ............................................... 2-1
Section 2.2 Performance of Tenant's Work ................................ 2-1
Section 2.3 Remedies for Tenant's Failure or Delay to Submit
Plans or Perform Work ....................................... 2-2
Section 2.4 Ownership of Improvements ................................... 2-2
Section 2.5 Failure to Open or to do Business ........................... 2-2
ARTICLE 3 RENT
Section 3.1 Payment ..................................................... 3-1
Section 3.2 Fixed Rent .................................................. 3-1
Section 3.3 Percentage Rent ............................................. 3-1
Section 3.4 Tax Rent .................................................... 3-5
Section 3.5 Common Area Rent ............................................ 3-6
Section 3.6 Additional Rent ............................................. 3-8
Section 3.7 Rent for a Partial Month .................................... 3-8
Section 3.8 Interest .................................................... 3-8
Section 3.9 Taxes ....................................................... 3-8
ARTICLE 4 COMMON AREAS ................................................ 4-1
ARTICLE 5 LANDLORD'S ADDITIONAL COVENANTS
Section 5.1 Repairs by Landlord ......................................... 5-1
Section 5.2 Quiet Enjoyment ............................................. 5-1
ARTICLE 6 TENANT'S ADDITIONAL COVENANTS
Section 6.1 Affirmative Covenants ....................................... 6-1
Section 6.2 Negative Covenants .......................................... 6-8
ARTICLE 7 DESTRUCTION: CONDEMNATION
Section 7.1 Fire or Other Casualty ...................................... 7-1
Section 7.2 Eminent Domain .............................................. 7-2
ARTICLE 8 DEFAULTS AND REMEDIES
Section 8.1 Bankruptcy .................................................. 8-1
Section 8.2 Default ..................................................... 8-1
Section 8.3 Remedies of Landlord ........................................ 8-2
Section 8.4 Waiver of Trial by Jury: Tenant Not to Counter-Claim ........ 8-3
Section 8.5 Holdover by Tenant .......................................... 8-4
Section 8.6 Landlord's Right to Cure Defaults ........................... 8-4
Section 8.7 Effect of Waivers of Default ................................ 8-4
Section 8.8 Security Deposit ............................................ 8-4
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ARTICLE 9 MISCELLANEOUS PROVISIONS
Section 9.1 Notices from One Party to the Other ......................... 9-1
Section 9.2 Brokerage ................................................... 9-1
Section 9.3 Estoppel Certificates ....................................... 9-1
Section 9.4 Applicable Law and Construction ............................. 9-1
Section 9.5 Relationship of the Parties ................................. 9-2
Section 9.6 Limitations on Liability .................................... 9-2
Section 9.7 Landlord's Entry Rights ..................................... 9-2
Section 9.8 Subordination ............................................... 9-3
Section 9.9 Construction on Adjacent Premises or Buildings .............. 9-4
Section 9.10 Mall Expansion .............................................. 9-5
Section 9.11 Short Form Lease ............................................ 9-6
Section 9.12 Binding Effect of Lease ..................................... 9-6
Section 9.13 Effect of Unavoidable Delays ................................ 9-6
Section 9.14 No Oral Changes ............................................. 9-7
Section 9.15 Executed Counterparts of Lease .............................. 9-7
Section 9.16 Landlord's Liability ........................................ 9-7
Section 9.17 Managing Agent .............................................. 9-8
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AGREEMENT OF LEASE made as of AUG 27 1997, between BELLWETHER PROPERTIES
OF MASSACHUSETTS, L.P. a Massachusetts business trust, having its principal
place of business c/o CORPORATE PROPERTY INVESTORS, 3 Dag Hammarskjold Plaza
(305 East 47th Street), New York, New York 10017, Attention: Corporate Secretary
(the Landlord) and THE LIMITED STORES, INC. d/b/a "The Limited", a Delaware
corporation, having an office at Three Limited Parkway, P.O. Box 16528,
Columbus, OH 43216 Attn: Real Estate Department* (the Tenant).
RECITAL
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord, the Premises, for the Term, commencing on the Commencement Date,
subject to the terms, covenants, conditions and provisions of this Lease. If the
Commencement Date is not the first (1st) day of a month, Rent for the month in
which the Commencement Date occurs shall be prorated to the end of the month,
the first (1st) full monthly installment of Rent shall be due on the first (1st)
day of the next month and after the expiration of the number of years in the
Term, the Term shall expire on the last day of the same month in which the
Commencement Date of the Term occurred, it being the intention of the parties
that the Term expire on the last day of a month. When the Commencement Date has
been determined, Landlord and Tenant shall execute, acknowledge and deliver a
written statement in recordable form specifying the Commencement and expiration
dates of the Term and, if there shall have been any changes in the Floor Space
of the Premises, such statement shall reflect such change or changes. Said
statement upon execution and delivery shall be deemed to be a part of this
Lease.
*with a copy to:
The Limited, Inc.
Three Limited Parkway
P.O. Box 16000
Columbus, OH 43216
Attn: Corporate Real Estate Department
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ARTICLE 1
Definitions
Whenever used in this Lease, the following terms shall have the meanings
indicated below.
Premises Store No. 1101/1102, Lower Level, as shown
on Exhibit B.
Term Ten (10) Years
Commencement Date The earlier of (i) the date following the
last day of Tenant's Work Period, or (ii)
the day Tenant Opens for business in the
Premises.
Size of Premises 5,250 square feet
Fixed Rent $236,250.00 per year for the first sixty
(60) full months plus the initial partial
month, if any, at the beginning of the Term
and;
$262,500.00 per year for the remainder of
the Term.
Percentage Rent Rate Five (5%) Percent
Merchants' Association Dues $9,187.50 per year initially or such other
greater amount as shall be determined by the
Shopping center Merchants' Association
pursuant to Section 6.1L.
Security Deposit None
Tenant's Work Period The period of one hundred twenty (120) days
after the date possession of the Premises is
made available to Tenant; however, Tenant
shall not be required to accept Possession
prior to August 11, 1997.
Tenant's Trade Name "The Limited"
Guarantor None
Broker None
Construction Barrier Fee See Rider amending Section 6.1 F.
Number of Department Stores Four (4)
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Percentage of Advertising Required None
Permitted Use Tenant shall use the Premises for the use
set forth below and for no other purpose:
The operation of a retail store for the sale
and display of women's clothing and apparel.
In addition, the sale of men's and
children's clothing and apparel and related
accessories for men, women and children;
provided such men's and children's clothing
and apparel and related accessories shall be
limited to forty-five (45%) percent of
Tenant's sales area. Any other type or
category of fashion merchandise may be sold
or displayed but shall be limited to five
(5%) percent of Tenant's sales area and no
such merchandise shall become so prevalent
(by display, advertising or otherwise) in
the Premises so as to constitute Tenant's
primary business therein. The nature of
Tenant's operation at the Premises shall,
throughout the Term of this Lease, be
comparable to that of other fashion-oriented
retail stores with first class business
operations in Landlord's Shopping center.
Additional Rent The Percentage Rent, Basement Rent, if any,
common Area Rent, Tax Rent and Taxes,
Merchants' Association dues and all other
amounts, except Fixed Rent, payable by
Tenant under this Lease.
Affiliate Any Person which controls or is controlled
by the Person in question or is controlled
by the same Persons which shall then control
the Person in question and any Person which
is a member with the Person in question in a
relationship of joint venture, partnership
or other form of business association; the
term "control" means, with respect to a
corporation, the ownership of stock
possessing, or the right to exercise, at
least twenty-five (25%) percent of the total
combined voting power of all classes of the
controlled corporation, issued, outstanding
and entitled to vote for the election of
directors, whether such ownership be direct
ownership or indirect ownership through
another Person.
Common Areas As defined in Section 4.1.
Common Area Operating Costs As defined in Subsections 3.5B and 3.5C.
Common Area Rent As defined in Subsection 3.5A.
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Department Store A retail store occupying not less than an
aggregate of 50,000 square feet of Floor
Space on one or more levels. for the sale in
combination or solely, of a variety of goods
and services such as wearing apparel,
accessories, general merchandise, home
furnishings, fittings, appliances,
housewares, furniture, floor coverings and
the like. Except for the purposes described
in Section 3.2 and Subsection 6.1B, the term
"Department Store" shall be deemed to
include any other building, improvements or
structure, not devoted primarily to retail
use, such as an office building or
hotel/motel, unless same is deemed by
Landlord not to be part of the Shopping
Center.
Floor Space The space available for occupancy by each
tenant within the exterior faces of the
walls between the tenant's premises and any
Common Area or, if the tenant's premises are
enclosed by one or more walls abutting
leaseable space, the space within such
exterior faces and the center of such walls;
if the tenant's premises are not surrounded
by walls, then the space within and up to
the lease line of the premises shall be
included in the computation. For the
purposes of the definition, store fronts
shall not be deemed to be walls. No
deduction or exclusion shall be made from
Floor Space otherwise computed by reason of
stairs, elevators, escalators, interior
partitions or other interior construction or
equipment.
Governmental Authority The United States, the state, county, city,
town, village and any water, sewer or school
or other district covering the area in which
the Shopping Center is located, and any
political subdivision thereof or any local
public or quasi-public authority, agency,
department, commission, board, bureau or
instrumentality of any of them including,
with respect to matters pertaining to
insurance, boards of fire underwriters,
rating bureaus and the like, to the extent
they have power to impose conditions on the
issuance of policies or the coverage
thereof.
Governmental Requirement Any law, ordinance, code, order, rule or
regulation of any Governmental Authority.
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Gross Leaseable Area The aggregate of all Floor Space in the
Shopping Center excluding below ground level
space, if any, ("Basement Space") not used
as retail sales area and excluding for the
purposes of the computation of Tax Rent
pursuant to Section 3.4., Floor Space which
is part of either a parcel or improvement
which is separately assessed for the purpose
of assessment of Taxes, to the extent the
Taxes thereon are paid by the tenant or
occupant thereof.
Gross Sales As defined in Subsection 3.3B.
Landlord The party named as Landlord herein until a
sale, transfer or lease, and thereafter the
Person or Persons, collectively, who shall,
for the time being, be liable for the
obligations of Landlord under the provisions
of Subsection 9.16A of this Lease.
Lease Year For the purposes of Percentage Rent only,
the period of twelve (12) consecutive months
from January 1 to December 31 of each year
during the Term. If the date Tenant opens
for business or the expiration of the Term
does not coincide with the beginning or end
of a Lease Year, the periods preceding or
following the commencement or end of each
full Lease Year, as the case may be, shall
be deemed independent, partial Lease Years.
Necessary Approvals Any permit, license, certificate or approval
or other evidence of compliance with any
Governmental Requirement necessary to the
lawful occupancy of the Premises for the
Permitted Use and the issuance of the
insurance required to be carried by Tenant.
Percentage Rent As defined in Subsections 3.3A and 3.3B
Person A natural person, firm, partnership,
association, business trust or corporation,
as the case may be.
Rent The Fixed Rent and the Additional Rent.
Retail Restriction Limit As defined in Subsection 6.2A.
Shopping Center Burlington Mall, shown on Exhibit A hereto,
located in Burlington, Massachusetts, plus
(i) any other parcels of
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land at any time designated by Landlord to
be added thereto (but only so long as any
such designation remains unrevoked) which
are used for Shopping Center or related
purposes, including, but not limited to,
recharge or catch basins, sumps, if any,
access and circulatory roads or ways, to and
from any public street, parking, or the
furnishings to the Shopping Center of any
utility or other service, or for any other
improvement appropriate or related to the
operation or functioning of the Shopping
Center; together with (ii) all present and
future buildings on and improvements to any
such parcels.
Tax Rent and Taxes As defined in Section 3.4.
Tenant's Work As set forth in Sections 2.1 and 2.2.
Exhibit A Shopping Center.
Exhibit B Premises.
Exhibit C Utilities
Exhibit D (optional) Food Court Area
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ARTICLE 2
Construction
Section 2.1. Tenant's Work. Not later than the twentieth (20th) day after
the execution and delivery of this Lease by Landlord, Tenant shall furnish to
Landlord for Landlord's approval, in accordance with the Shopping Center
Information Manual and Design Criteria, plans and specifications which shall
provide for the complete remodeling (or finishing in the event the Premises have
not been previously occupied) of the Premises. Tenant's plans and specifications
shall provide for the installation of such water saving devices as low flow
flush valves for toilets, self-closing faucets, flow restrictors for faucets and
any other devices needed to comply with the Commonwealth of Massachusetts
plumbing code in effect at the time Tenant's Work is performed. Tenant agrees,
at its sole cost and expense, to construct and make such improvements in the
Premises in accordance with the approved plans and specifications. Tenant has
inspected the Premises, is familiar with their condition and accepts same "as
is': and in their present condition and Landlord shall not be obligated to do
any further construction or to make any additional improvements in the Premises.
except as may otherwise be expressly provided herein. Tenant understands that
Landlord's approval of its plans and specifications is primarily for conceptual
purposes and such approval shall not constitute a representation or warranty of
any kind with respect thereto, including, without limitation, the cost of
Tenant's Work, compliance with Governmental Requirements or suitability of
design. Tenant acknowledges receipt of the Shopping Center Tenant Information
Manual and Design Criteria, the provisions of which are incorporated herein by
reference.
Section 2.2. Performance of Tenant's Work. As soon as practicable after
Landlord shall have approved Tenant's plans and specifications and possession of
the Premises shall be made available to Tenant and Tenant shall have obtained
all necessary approvals with respect to commencement of Tenant's Work, Tenant
shall enter the Premises and shall proceed with due diligence and dispatch to
make improvements and install fixtures and other equipment and a full stock of
inventory therein, in accordance with the approved plans and specifications and
all Governmental Requirements. Such work and installation shall not interfere
with any work to be done by Landlord in other portions of the Shopping Center,
shall be done with labor which is not incompatible with other labor employed at
the Shopping Center without creating any conflict or work stoppage with, under
or as a result of any labor agreement to which Landlord or its contractors may
be a party, and in compliance with such rules and regulations as Landlord may
reasonably make. Except for Landlord's negligence and willfull acts (subject,
however, to the waiver of subrogation elsewhere set-forth in this Lease),
Landlord shall have no responsibility or liability whatsoever for any loss of or
damage to any fixtures or other equipment or inventory installed or left in the
Premises, and Tenant's entry on and occupancy of the Premises shall be governed
by and subject to all the provisions, covenants and conditions of this Lease
other than those requiring payment of Rent. Prior to commencing any construction
work in the Premises, Tenant shall obtain a building permit and furnish a copy
of same to Landlord. Tenant shall
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also obtain and furnish to Landlord, to be delivered not later than the end of
Tenant's Work Period, lien waivers from all contractors, subcontractors and
materialmen, and all licenses, certificates and approvals with respect to work
done and installations made by Tenant that may be required from the Governmental
Authorities with respect to Tenant's Work, use and occupancy. Tenant shall
complete Tenant's Work and open for business to the public not later than the
expiration of Tenant's Work Period. Landlord and Tenant agree that the timely
performance of Tenant's obligations under this Article 2 is a material
inducement to the execution and delivery of this Lease by Landlord.
Section 2.3. Remedies for Tenant's Failure or Delay to Submit Plans or
Perform Work. If Tenant fails or omits to make timely submission to Landlord of
any plans or specifications or delays in performing or completing Tenant's Work,
such failure or delay shall constitute a default hereunder and shall be governed
by Article 8 hererof.
Section 2.4. Ownership of Improvements. All installations, alterations,
additions or improvements upon the Premises, made by either party, including all
heating, ventilating and air conditioning equipment, electrical and plumbing
equipment and fixtures, carpeting or other floor covering and wall coverings,
pipes, ducts, conduits, wiring, paneling, partitions, railings, mezzanine
floors, galleries and the like, shall, unless Landlord otherwise elects by
giving Tenant notice not less than thirty (30) days prior to the expiration or
other termination of this Lease, become the property of Landlord and shall
remain upon and be surrendered with the Premises as a part thereof at the
expiration or sooner termination of the Term. None of the foregoing shall be
deemed to include Tenant's trade fixtures, furniture and other personal
property. Tenant shall not be required to remove at the end of the Term any
installations made with Landlord's consent unless Landlord shall so specify at
the time its consent is given.
Section 2.5. Failure to Open or to do Business. The parties covenant and
agree that because of the difficulty or impossibility of determining Landlord's
damages, should Tenant (i) subject to Unavoidable Delays, fail to open for
business within the number of days allowed for Tenant's Work Period, or (ii) at
any time during the Term, vacate, abandon or desert the Premises, or (iii)
subject to Unavoidable Delays, at any time during the Term, cease operating its
business therein, then, in any such event if Landlord does not terminate this
Lease, Tenant shall pay to Landlord, in addition to Fixed and Additional Rent,
one-thirtieth (1130) of the monthly installment of Fixed Rent, for each and
every day the Premises and Tenant's business therein are not continuously and
uninterruptedly operated by Tenant.
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ARTICLE 3
Rent
Section 3.1. Payment. Tenant covenants and agrees, at all times during the
Term, to perform promptly all of the obligations of Tenant set forth in this
Lease and to pay when due all Rent, charges, costs and other sums (all of which
shall be deemed to be Additional Rent) which, by the terms of this Lease are to
be paid by Tenant. All Rent shall be paid in lawful money of the United States
which shall be legal tender for payment of all debts and dues, public and
private, at the time of payment, at the address of Landlord set forth in this
Lease oral such other place as Landlord in writing may designate, without
(except as may be otherwise herein expressly provided) any set-off or deduction
whatsoever and without any prior demand or notice therefor.
Section 3.2. Fixed Rent. Tenant shall pay the annual Fixed Rent in equal
monthly installments in advance on the first (1st) day of each calendar month
included in the Term. If the Shopping Center shall, at any time during the Term
of this Lease, contain in excess of the number of Department Stores set forth in
Article 1, the Fixed Rent herein provided for shall automatically be increased
by ten (10%) percent upon the date each additional Department Store is opened
for business.
Section 3.3. Percentage Rent.
A. Tenant shall also pay, as "Percentage Rent" for each Lease Year
included in the Term, payable as hereinafter provided, the amount, if any, by
which Tenant's Gross Sales transacted during such Lease Year, multiplied by the
Percentage Rent Rate, shall exceed the Fixed Rent payable for the same period;
provided, however, that there shall be excluded from such computation any Fixed
Rent payable for any part of such period during which Tenant was not open for
business in violation of this Lease.
B. The term "Gross Sales" as used herein is defined to mean the total
amount in dollars of the actual prices charged, whether for cash or on credit or
trade-in or partly for cash, credit or trade-in, for all sales or leases of
merchandise, food, beverages and services (including finance or service charges
thereon), redeemed gift or merchandise certificates, irrespective of where sold,
and all other receipts of business conducted at, in, on, about or from the
Premises, including, but not limited to, all mail or telephone orders received
or filled at, in, on, about or from the Premises, and including all deposits not
refunded, all orders taken at, in, on, about or from the Premises, whether or
not said orders are filled elsewhere; total receipts of sales through any
vending machine or other coin or token operated device, other than not more than
two (2) vending machines used exclusively by Tenant's employees, and total
sales by any sublessee, concessionaire or licensee or any other occupant
otherwise at, in, on, about or from the Premises, and sales and receipts
occurring or arising as a result of solicitation off the Premises conducted by
personnel operating from,
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or reporting to, or under the supervision of any employee of Tenant located at
the Premises. Provided that Tenant keeps proper evidence thereof, Gross Sales
shall not, however, include (i) any sums collected and paid out for any retail
sales tax or retail excise tax imposed by any Governmental Authority and paid
directly by Tenant to that Governmental Authority and separately stated, (ii)
any exchange of goods or merchandise between the stores or warehouses of Tenant
where such exchange of goods or merchandise is made solely for the convenient
operation of the business of Tenant and not for the purpose of consummating a
sale which had theretofore been made at, in, on, about or from the Premises, nor
for the purpose of depriving Landlord of the benefits of a sale which otherwise
would be made at, in, on, about or from the Premises (iii) the amount of returns
to shippers or manufacturers, (iv) the amount of any cash or credit refund,
limited to the sales prices, made upon any sale where the merchandise sold, or
some part thereof, is thereafter returned by the purchaser and accepted by
Tenant, (v) sales of fixtures (after use thereof) which are not a part of
Tenant's stock-in-trade, (vi) the amount of any discount on sales to employees
of the Premises, (vii) to the extent that the amount thereof was previously
included in Gross Sales, bad debts, not exceeding two (2%) percent of Gross
Sales per Lease Year, (viii) to the extent such charges do not materially exceed
Tenant's costs, separately stated charges for alterations, repairs, giftwrapping
and delivery services rendered to Tenant's customers, and (ix) sales of gift
certificates. Each layaway sale shall be treated as a sale (to the extent of the
amount received) when Tenant shall receive any payment from its customer. Each
sale upon installment or credit shall be treated as a sale for the full amount
when Tenant shall receive any payment from its customer, and subject to the
limitation set forth above, no deduction shall be allowed for uncollectible
credit accounts. Each lease of merchandise shall be treated as a sale in the
month in which made for a price equal to the total rent payable during the term
of the lease. Notwithstanding anything contained in this Subsection with respect
to inclusion in Gross Sales of all receipts of sales made through any vending
machine or other coin or token operated device, the operation of any such device
shall be subject to the prior written consent of Landlord, as provided in
Subsection 6.2E hereof.
C. Tenant shall utilize, and cause to be utilized, cash registers equipped
with sealed continuous totals or such other devices for recording sales as
Landlord shall reasonably approve to record all sales, and Tenant shall keep at
its principal office in the continental United States for at least thirty-six
(36) months after expiration of each Lease Year full, true and accurate books of
account and records conforming to generally accepted accounting principles
showing all of the Gross Sales transacted at, in, on, about or from the Premises
for such Lease Year, including all sales or similar tax reports and returns,
dated cash register tapes, sales checks, sales books, bank deposit records,
computer tapes, disc, chips, printouts or ether storage media and any other
records normally maintained by Tenant and other supporting data. Landlord shall
have the right, from time to time, to inspect Tenant's recordkeeping system and,
in connection therewith, to make test audits of Gross Sales. Within fifteen (15)
days after the end of each calendar month, or portion thereof, Tenant shall
furnish to Landlord a statement signed and verified by Tenant (or by an
authorized officer if Tenant be a corporation) of the Gross Sales transacted
during such month or portion
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thereof; and within sixty (60) days after the end of each Lease Year and within
sixty (60) days after the end of the Term, Tenant shall furnish to Landlord a
statement, hereinafter called the annual statement, certified to Landlord by an
executive officer of Tenant, of Gross Sales transacted during the preceding
Lease Year included in the Term. The certification by said officer shall
expressly state that the Gross Sales shown on said statement conform with and
are computed in compliance with the definition thereof contained in Subsection
3.3B hereof. In the event Gross Sales for each of two (2) Lease Years are
misstated by more than two (2%) percent, thereafter the annual statement of
Gross Sales must be certified by an independent certified public accountant
Landlord shall have the right, from time to time, by its accountants or
representatives, to audit Tenant's Gross Sales and, in connection with such
audits, to examine all of Tenant's records (including sales or similar tax
returns, an actual inventory of Tenant's stock-in-trade and all supporting data
and any other records from which Gross Sales may be tested or determined) of
Gross Sales disclosed in any statement given to Landlord by Tenant and Tenant
shall make all such records readily available at Tenant's main office, for such
examination. If any such audit discloses that the Gross Sales transacted by
Tenant exceed those reported, Tenant shall forthwith pay to Landlord such
additional Percentage Rent as may be so shown to be payable and, if the actual
Gross Sales exceed the Gross Sales reported by Tenant by more than two (2%)
percent, or if Tenant's records or systems do not comply with the requirements
of this Subsection, Tenant shall also then pay the reasonable cost of such audit
and examination, including travel, food and lodging and related expenses of
Landlord's auditors. In the event Tenant has understated Gross Sales by four
(4%) percent or more, Landlord may, in addition to any other remedies, terminate
this Lease but Tenant shall remain liable hereunder as set forth in Article 8;
provided, however, that Landlord shall not exercise its right to terminate this
Lease if Tenant shall demonstrate to Landlord's reasonable satisfaction that
such understatement was made inadvertently. Any information obtained by Landlord
pursuant to the provisions of this Subsection shall be treated as confidential,
except in any litigation or arbitration proceedings between the parties and,
except further, that Landlord may disclose such information to prospective
buyers, to prospective or existing lenders, in any registration statement filed
with the Securities and Exchange Commission or other similar body or in
compliance with subpoenas and judicial orders. In no event shall this Subsection
be deemed to limit Landlord's rights of pre-trial discovery and disclosure in
any action or proceeding.
D. If Tenant fails to submit a monthly statement of Gross Sales within
fifteen (15) days following Landlord's request therefor, then until such
statement is received by Landlord, Gross Sales for such month shall be deemed
equal to Tenant's highest previously reported monthly Gross Sales (or, if Tenant
has never previously reported, to the Gross Sales reasonably estimated by
Landlord), and if such failure shall occur twice in any Lease Year, Landlord
may, at Tenant's expense, conduct an audit of Tenant's Gross Sales as set forth
in Subsection 3.3C above.
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E. Percentage Rent shall be payable by Tenant not later than the fifteenth
(15th) day of each calendar month for and in respect to the preceeding calendar
month. Such payment shall be a sum equal to the amount by which Tenant's Gross
Sales for the then current Lease Year, through the last day of the preceding
month, multiplied by the Percentage Rent Rate, shall exceed the Fixed Rent
payable for said period, less payments previously made with respect to such
Lease Year. Upon receipt by Landlord of the certified annual statement of Gross
Sales to be furnished as hereinabove provided, there shall be an adjustment
between Landlord and Tenant with payment to or credit by Landlord, as the case
may be, to the end that Landlord shall receive the entire amount of Percentage
Rent payable under this Lease for the preceding Lease Year and no more.
Section 3.4. Tax Rent.
A. Tenant shall pay to Landlord, as Additional Rent, Tax Rent in an amount
equal to the product obtained by multiplying Taxes by a fraction, the numerator
of which shall be the Floor Space of the Premises excluding basement space, if
any, not used as retail sales area, and the denominator of which shall be the
portion of the Gross Leaseable Area of the Shopping Center which is included in
the assessment which constitutes the basis for the Taxes, but excluding
buildings or areas occupied by Department Stores, and stores occupying Gross
Leaseable Area not fronting on the enclosed mall. Tax Rent shall be payable at
least thirty (30) days prior to the due date of any Taxes or installment
thereof; however, Landlord may, if it so elects, collect Tax Rent from Tenant on
a monthly basis, in which event Tenant shall pay, with each monthly installment
of Fixed Rent, one-twelfth (1/12) of the annual amount estimated by Landlord to
be due hereunder. In the event Taxes for the then current tax year are not
known, monthly installments shall be based on the preceding tax year with
immediate adjustment as soon as current taxes become known. If at the time any
Taxes or installments are required to be paid, the amount of Tenant's previously
made monthly payments is insufficient to pay Tenant's share, Tenant shall pay
such deficiency within ten (10) days after demand therefor. In the event of any
excess, it shall be credited and applied to future Tax Rent payments, except
that any excess in the last year of the Term shall be refunded at the end of the
Term.
B. Should the taxing authority include in Taxes as a separately stated
item the value of any improvements made by Tenant, or include machinery,
equipment, fixtures, inventory or other personal property or assets of Tenant,
then Tenant shall pay the entire tax attributable to such items.
C. Nothing herein contained shall be construed to include as a tax which
shall be the basis of Tax Rent, any inheritance, estate, succession, transfer,
gift, franchise, corporation, income or profit tax or capital levy that is or
may be imposed upon Landlord, provided, however, that if, at any time during the
Term, the method of taxation prevailing at the Commencement Date of this Lease
shall be altered so that in lieu of or as a substitute for the
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whole or any part of the taxes now levied, assessed or imposed on real estate as
such, there shall be levied, assessed or imposed (i) a tax on the rents received
from real estate, or (ii) a tax or license fee imposed on Landlord which is
otherwise measured by or based, in whole or in part, upon the Shopping Center or
any portion thereof, then the same shall be included in the computation of Tax
Rent hereunder, computed as if the amount of such tax or fee so payable were
that due if the Shopping Center were the only property of Landlord subject
thereto.
D. For the purpose of this Section 3.4, the term 'Taxes" shall include all
real estate taxes, assessments, license fees or charges, excise on rent, water
and sewer rents, any sums including interest or any payments in lieu or in
substitution thereof on any bonds or debt (except industrial revenue bonds or
similar indebtedness incurred for construction of nonpublic facilities) incurred
by any Governmental Authority and payable by Landlord in connection with the
Shopping Center and other governmental impositions, payments and charges of
every kind and nature whatsoever, extraordinary as well as ordinary, foreseeable
and unforeseeable, and each and every installment thereof which shall or may
during the Term of this Lease be levied, assessed, imposed, become due and
payable, or liens upon or arising in connection with the use, occupancy or
possession of or grow due or payable out of, or for, the Shopping Center, or any
part thereof or any land, building or other improvements therein, including any
and all fees or expenses incurred in connection with the institution,
prosecution, conduct and maintenance of any negotiations, settlements, actions
or proceedings with respect to the amount of any Taxes, less the contributions
or payments, if any, paid to Landlord with respect to Taxes by Department Stores
and stores occupying Gross Leaseable Area not fronting on the enclosed mall,
such deduction to be credited to the year in which actually received. Taxes
shall not include any of the foregoing relating to any parcel or improvement
included in the Shopping Center which, except for insignificant portions
thereof, comprises a separate tax lot or is separately assessed or valued for
the purpose of real estate taxes to the extent the taxes thereon are paid by a
single tenant or occupant thereof, and further excluding any charge such as a
water meter charge, sewer rent, if any, based thereon, which is measured by the
consumption by the actual user of the item or service for which the charge is
made. Whether or not Landlord shall take the benefit of the provisions of any
statute or ordinance permitting an assessment for public betterment or
improvements to be paid over a period of time, Landlord shall, nevertheless, be
deemed to have taken such benefit so that the term Taxes shall include only the
current annual installment of any such assessment and the interest on unpaid
installments. A tax bill or copy thereof submitted by Landlord to Tenant shall
be conclusive evidence of the amount of taxes or installments thereof.
E. In the event Landlord shall obtain a tax refund as a result of tax
reduction proceedings or other proceedings of similar nature, then Tenant shall,
provided Tenant is not then in default beyond any opportunity to cure elsewhere
set forth in this Lease, and after the final conclusion of all appeals or other
remedies, be entitled to its pro rata share of the net refund obtained based
upon Tax Rent paid by Tenant which is the subject of the
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refund. As used herein, the term "net refund" means the refund plus interest, if
any, thereon, less appraisal, engineering, expert testimony, attorneys',
printing and filing fees and all other costs and expenses of the proceeding, to
the extent such fees, costs and expenses have not been previously included in
Taxes under Subsection 3.4D, and less an administrative fee to Landlord in the
amount of not more than fifteen (15%) percent of the original refund. Tenant
shall not have the right to institute or participate in any such proceedings, it
being understood that the commencement, maintenance, settlement or conduct
thereof shall be in the sole discretion of Landlord.
Section 3.5. Common Area Rent.
A. Tenant shall pay to Landlord as Additional Rent, an amount equal to the
product obtained by multiplying Common Area Operating Costs for each fiscal year
adopted by Landlord by a fraction, the numerator of which shall be the Floor
Space of the Premises excluding basement space, if any, not used as retail sales
area, and the denominator of which shall be the aggregate of all leased and
occupied Floor Space in the Shopping Center, excluding the Floor Space of stores
whose public entrances do not front on the enclosed mall, basement space, if
any, not used as retail sales area and any buildings or areas occupied by
Department Stores; provided, however, that the denominator of said fraction
shall never be less than seventy (70%) percent of the Gross Leaseable Area of
the Shopping Center, exclusive of Department Stores and stores whose public
entrances do not front on the enclosed mall. Tenant shall pay, with each monthly
installment of Fixed Rent, one-twelfth (1/12) of the annual amount estimated by
Landlord to be due hereunder, subject to adjustment.
B. As used in this Lease, the term Common Area Operating Costs shall mean
all costs, expenses and expenditures incurred by Landlord in maintaining,
managing, operating, repairing, replacing and protecting the Common Areas, all
in a manner consistent with the highest shopping center standards, including the
cost of all work necessary to preserve and maintain the value, utility and
appearance of the Common Areas. Common Area Operating Costs shall specifically
include, without limitation, all costs, expenses and expenditures incurred in
connection with the following: heating, ventilating, lighting and air
conditioning the Common Areas and providing snow and ice removal; maintenance,
repair and replacement of all parking lot surfaces, including striping, repaving
and sealcoating; gardening and landscaping, including planting and replacing
flowers, shrubbery and trees; painting and decorating non-leaseable areas;
policing and regulating vehicular and pedestrian traffic; compliance with
environmental, health and safety regulations and standards promulgated by
applicable Governmental Authorities; providing offsite employee parking
facilities, including transportation to and from such facilities; sanitary
control, including extermination; maintenance, repair and replacement of sewer
and storm drainage systems, waste disposal facilities, lift stations, retention
ponds or basins and sump facilities; removal of rubbish, garbage and other
refuse; contracted security personnel, security systems and all other security
measures; acquisition (including rental fees), maintenance, repair and
replacement of fixtures, machinery, equipment, vehicles and supplies used in the
operation and maintenance of the Common Areas, and all personal property taxes
and/or fees payable
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with respect to such items; maintenance, repair and replacement of Shopping
Center signs, curbs, walkways, ceilings, elevators, escalators and utility
systems; maintenance, repair and replacement of all roofs over non-leaseable
areas in the Shopping Center, acquisition, maintenance, repair and replacement
of cost saving devices commonly used in properties comparable to the Shopping
Center; music program services and loud speaker systems; cleaning of
non-leaseable areas; maintenance, repair and replacement of decorations in
non-leasable areas; water for fountains, if any; acquisition, maintenance,
repair and replacement of seasonal decorations; salaries and other costs
(including training costs, employee benefits and workers' compensation
insurance) of Shopping Center personnel, such as security and maintenance
people, the Shopping Center manager, assistant manager, bookkeeper, secretaries
and office staff; resolution of disputes or litigation with Persons attempting
to use the Common Areas for non-commercial purposes; professional and technical
fees and all other disbursements incurred in connection with the performance of
any of the foregoing; other similar direct costs of the type incurred in the
operation of comparable properties; and fifteen (15%) percent of all of the
foregoing costs to cover Landlord's administrative and overhead expenses. From
the aggregate of the aforementioned costs and expenses, there shall be deducted
the payments, if any, made with respect to common area charges by Department
Stores, stores whose public entrances do not front on the enclosed mall and
temporary kiosks, such deduction to be credited to the year for which such
payments are applicable irrespective of the fiscal year in which such payments
are actually received. With respect to costs which Landlord may elect to
depreciate (or amortize) in lieu of including such costs in Common Area
Operating Costs for the year in which they are incurred, only that portion of
the depreciation (or amortization) allocable to the year for which Common Area
Operating Costs are being determined shall be included in then current Common
Area Operating Costs, it being understood, however, that interest (at a rate
equal to the prime rate being charged from time to time by Citibank, N.A. during
the year for which Common Area Operating Costs are being determined) on the then
undepreciated (or unamortized) portion of such costs shall be included in Common
Area Costs. In no event shall Common Area Operating Costs include the costs and
expenses incurred by Landlord in constructing new buildings in the Shopping
Center or expanding or improving leasable area or the costs and expenses
incurred by Landlord for repairs and replacements with respect to which Landlord
receives insurance proceeds or condemnation awards.
C. In addition to the costs and expenses enumerated in Subsection B above,
Common Area Operating Costs shall also include the cost of acquiring,
maintaining and administering such 'all risk" insurance (including rental
income, flood and earthquake), boiler and machinery insurance, comprehensive
general and umbrella liability insurance and such other insurance for the
Shopping Center as Landlord may, from time to time, deem necessary. In lieu
thereof or in combination therewith, Landlord shall have the right to
self-insure in whole or in part. In the event Landlord shall self-insure in
whole or in part, the costs attributable to the self-insured portion of the
coverage shall be included in common Area Operating Costs, including the cost of
administering Landlord's self-insurance program. From the aggregate of the
aforesaid insurance costs and expenses, there shall be
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deducted the payments, if any, made with respect to the cost of Landlord's
insurance by Department Stores, stores whose public entrances do not front on
the enclosed mall and temporary kiosks, such deduction to be credited to the
year for which such payments are applicable, irrespective of the fiscal year in
which such payments are actually received.
D. After the end of each fiscal year adopted by Landlord, Landlord shall
furnish to Tenant a statement showing in reasonable detail the information
relevant or necessary to the calculation and determination of Landlord's actual
Common Area Operating Costs, as hereinabove defined, for the fiscal year in
question. If the monthly charges paid by Tenant during such fiscal year, as
hereinabove provided, shall be less than Landlord's said actual Common Area
Operating Costs for such fiscal year as shown by such statement, multiplied by
the same fraction referred to in Subsection 3.5 A, Tenant shall pay to Landlord
the excess within thirty (30) days after service of such statement. If, however,
the said monthly charges shall exceed Landlord's said actual costs multiplied by
said fraction, Landlord shall, with the submission of said statement, credit or
refund to Tenant the excess.
Section 3.6. Additional Rent. Unless another time shall be herein
expressly provided, Additional Rent shall be due and payable within ten (10)
days following demand or together with the next-succeeding installment of Fixed
Rent, whichever shall first occur, and Landlord shall have the same remedies for
failure to pay the Additional Rent as for a non-payment of Fixed Rent. Tenant's
failure to object to any final statement, invoice or billing rendered by
Landlord within a period of one hundred twenty (120) days after receipt thereof
shall constitute Tenant's acquiescence with respect thereto and shall render
such statement, invoice or billing an account stated between Landlord and
Tenant.
Section 3.7. Rent for a Partial Month. For any portion of a calendar month
included at the beginning or end of the Term, Tenant shall pay one-thirtieth
(1/30) of each monthly installment of Rent for each day of such portion, payable
in advance at the beginning of such portion, except that Percentage Rent for
such portion shall be computed and paid as provided in Section 3.3 hereof.
Section 3.8. Interest. As of the tenth (10th) day following service of
notice by Landlord that a payment of Rent is overdue, interest shall accrue on
the overdue amount, retroactive to the original due date, at the lesser of the
highest rate permitted to be paid by Tenant in the state in which the Shopping
Center is located or an annual rate of four (4%) percent more than the prime
interest rate of Citibank N.A., located in New York, New York.
Section 3.9. Taxes. Tenant shall pay, as Additional Rent, for any
documentary stamps or other transfer fees or any other sales or use taxes or
other taxes, impositions or levies of or required by any Governmental Authority,
including interest or penalties thereon, arising out of or by reason of this
Lease or the amount of Rent payable hereunder.
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ARTICLE 4
Common Areas
Section 4.1. Common Areas. Landlord hereby grants to Tenant a
non-exclusive license to use (i) the parking areas provided by Landlord in the
Shopping Center for the accommodation and parking of vehicles of Tenant and its
officers, agents and employees and customers while such customers are shopping
in the Premises or in any other portion of the Shopping Center, (ii) the public
conveniences of the Shopping Center, including any connecting passageways and
lobbies used in conjunction with hotels and/or office buildings, and (iii) all
other areas in the Shopping Center, including the so-called "mall", to be used
in common by tenants of the Shopping Center, such parking areas, public
conveniences and other common areas being hereafter collectively referred to as
"Common Areas". Notwithstanding any of the provisions herein contained,
Landlord retains and reserves the non-exclusive right to the use of the Common
Areas.
A. Exhibit A sets forth the general layout of the Shopping Center, but
shall not be deemed to be a warranty, representation or agreement on the part of
Landlord that the Shopping Center will be or will continue to be exactly as
indicated on said diagram, and Landlord reserves the right to (i) increase,
eliminate, reduce or change the number, type, size, location, elevation, nature
and use of any of the Common Areas or the buildings comprising the Shopping
Center, (ii) make changes, additions, subtractions, alterations or improvements
in or to such Common Areas, including, but not limited to, the construction of
decked or subsurface parking, (iii) withdraw portions of the Shopping Center
from Common Area or add Common Area to the Shopping Center, including
non-contiguous parcels for parking and other related Shopping Center purposes
and (iv) construct buildings, additional Department Stores, kiosks and other
improvements in the Common Areas. Tenant shall have no rights with respect to
the land or improvements below floor slab level or above the interior surface of
the ceiling of the Premises or air rights above the Premises.
B. Landlord shall not, pursuant to Subsection 4.1 A, create any permanent,
substantial, adverse interference with access to or visibility of the Premises
from the covered mall upon which the front of the Premises abuts. However, this
provision shall not preclude Landlord from installing carts or erecting kiosks
or similar improvements anywhere in the covered mall, so long as any kiosks or
similar improvements which are located in front of the Premises are
approximately centered in the mall. Tenant's sole remedy in the event of
Landlord's failure to comply with this Subsection 4.1 B shall be to terminate
this Lease. In the event Tenant, as the result of Landlord's failure to so
comply, shall exercise its right to terminate this Lease, Landlord shall pay,
within ninety (90) days following the date Tenant vacates and surrenders the
Premises, the then unamortized cost of the permanent leasehold improvements
(excluding, inter alia, trade fixtures and equipment, furnishings, decorations,
inventory and other items of personal property) initially made by Tenant
pursuant to Article 2 of this Lease, assuming a useful life equal to the length
of the original Term of this Lease and amortization on a straight line basis.
Tenant shall, not later than sixty (60) days following the Commencement Date,
deliver an affidavit of an officer of Tenant and a certifi-
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cate of Tenant's architect accompanied by such bills, contracts, receipts,
invoices, cancelled checks and the like as Landlord may reasonably require,
specifying the cost of the Tenant's leasehold improvements, which amount shall,
unless disputed by Landlord, thereupon be the basis for the amount to be paid by
Landlord pursuant to this Subsection. Failure to timely deliver such affidavit,
certificate and supporting data shall constitute a waiver of Tenant's rightto
such payment.
C. Tenant, its officers, agents and employees shall park their vehicles
only in areas from time to time designated by Landlord as the area for such
parking, provided that such areas shall be located in or not more than one-half
(1/2) mile from the perimeter boundary of the Shopping Center. Tenant shall,
within ten (10) days following written notice from Landlord, furnish Landlord,
or its authorized agent, the state automobile license numbers assigned to its
automobiles and the automobiles of all its employees employed in the Premises.
Tenant shall not at any time park any trucks or any delivery vehicles in the
parking area. Landlord shall have the right, after service of two (2) or more
notices to Tenant regarding improper parking, to levy an assessment payable by
Tenant in a sum not to exceed $10.00 per day for each and every car belonging to
Tenant, its agents, servants, contractors, licensees or employees which shall
thereafter park in an area other than that designated by Landlord as a parking
area for such vehicles. Such assessment shall be payable by Tenant on the next
due date for Fixed Rent and shall be considered Additional Rent.
D. Common Areas shall be subject to such reasonable rules and regulations,
including the right to impose parking charges or fees and to allocate parking
areas on a uniform or non-discriminatory basis and to prohibit the use of the
Shopping Center by such Persons as Landlord determines, as the same may be
amended or modified, as Landlord may, from time no time, adopt as provided in
this Lease.
E. Landlord reserves the right to close, if necessary, all or any portion
of the Common Areas for the minimum length of time as may, in the reasonable
opinion of Landlord's counsel, be legally sufficient to prevent a dedication
thereof or the accrual of the right of the public therein, to close temporarily,
if necessary, all or any part of the parking areas to discourage non-customer
parking and to do and perform such other acts in and to the Common Areas as in
the use of good business judgment of Landlord will improve the use thereof.
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ARTICLE 5
Landlord's Additional Covenants
Section 5.1. Repairs by Landlord. Landlord shall keep the exterior walls,
foundations, downspouts, gutters and roofs of the buildings, and the plumbing,
electrical and other utility system serving but which are located outside of the
Premises, in good order, condition and repair and shall make necessary
structural repairs to the exterior walls of the buildings (excluding, however,
repairs to windows, doors, saddles, plate glass, store fronts and air
conditioning and heating installations and wiring, pipes and other utility
installations located outside of the Premises which are used exclusively by
Tenant), the dividing walls between the Premises and space occupied or to be
occupied by others and the load-bearing walls and load-bearing columns, if any,
within the Premises, provided that Landlord shall not be obligated hereby to do
any work required to be done because of any damage caused by any act, omission
or negligence of Tenant and its invitees, licensees, their respective officers,
agents and employees or their customers. Except where Landlord has actual notice
of the necessity for such repair, Landlord shall not be required to commence any
such repair until after notice from Tenant that the same is necessary, which
notice, except in case of any emergency, shall be in writing and shall allow
Landlord ten (10) days in which to commence such repair. The fact that the costs
incurred by Landlord in connection with any of the foregoing are includable in
Common Area Operating Costs pursuant to Subsection 3.5B shall not affect
Landlord's performance obligations under this Section 5.1. When necessary by
reason of accident or other cause occurring in the Premises or elsewhere in the
Shopping Center, or in order to make any repairs or alterations or improvements
in or relating to the Premises or to other portions of the Shopping Center,
Landlord reserves the right to interrupt the supply to the Premises of steam,
condenser water or cooled air for air conditioning, electricity, water and gas
and also to suspend the operation of the heating and air conditioning system, if
any, until said repairs, alterations or improvements shall have been completed.
If, as a result of Landlord's performance of its obligations or exercise of its
rights under this Section 5.1, there is created a substantial and material
interference with Tenant's ability to conduct its business in the Premises and
Tenant therefor closes for more than three (3) consecutive business days, Tenant
shall be entitled to an abatement of Fixed Rent for each day after the third
(3rd) business day during which the condition continues. Other than the
aforesaid, there shall be no abatement of Rent because of any such interruption
or suspension; however, Landlord shall pursue such work with reasonable
continuity, diligence and dispatch and in such a manner as (consistent with good
practice) to cause a minimum of interference with Tenant's use of the Premises.
Section 5.2. Quiet Enjoyment. Landlord covenants that Tenant, on paying
the Rent and performing Tenant's obligations in this Lease, shall peacefully and
quietly have, hold and enjoy the Premises and the appurtenances throughout the
Term without hindrance, ejection or molestation by any Person lawfully claiming
under Landlord subject to the other terms and provisions of this Lease and to
any agreements to which this Lease may be or become subject and subordinate.
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ARTICLE 6
Tenant's Additional Covenants
Section 6.1. Affirmative Covenants. Tenant covenants, at its expense, at
all times during the Term:
A. To use the Premises only for the Permitted Use: to operate its business
in the Premises under Tenant's Trade Name (or such other trade name as is
adopted by a majority of stores operating under the Trade Name); and to conduct
its business at all times in a dignified manner and in conformity with the
highest standards of practice obtaining among superior type stores, shops or
concerns dealing in the same or similar merchandise and in such manner as to
produce the maximum volume of Gross Sales and to help establish and maintain a
high reputation for the Shopping Center.
B. To continuously and uninterruptedly use, occupy and operate for retail
sales purposes, all of the Premises other than such minor portions thereof as
are reasonably required for storage and office purposes; to use such storage and
office space only in connection with the business conducted by Tenant in the
Premises; to furnish and install all trade fixtures and permitted signs; to
carry a complete stock of seasonal merchandise; to maintain an adequate number
of trained personnel for efficient service to customers; to open for business
and remain open during the entire Term from at least 10:00 A.M. to 10:00 P.M.
Mondays through Saturdays and 12:00 P.M. to 6:00 P.M. on Sundays, and to light
its display windows and signs during those hours and on those days when the
covered mall is kept illuminated by Landlord (but Tenant shall not be obligated
to keep the same illuminated beyond 11.00 P.M. on any day). Tenant shall, if not
in conflict with any Governmental Requirements, and providing that (i) at least
one Department Store is open on such days or for such hours and (ii) Landlord
shall agree to cause the Shopping Center to remain open for such days or for
such hours, also open for business on such days or for such additional hours.
C. To store in the Premises only such merchandise as is to be offered for
sale at retail within a reasonable time after receipt; to store all trash and
refuse in appropriate containers within the Premises so as not to be visible to
the shopping public and to attend to the daily disposal thereof in the manner
approved by Landlord; to keep all drains inside the Premises open; and to
receive, deliver, load and unload goods, merchandise, supplies, fixtures,
equipment, furniture and rubbish through proper service doors and at times
established by Landlord, provided, however, that if Landlord shall furnish or
designate trash removal service, Tenant shall accept and use such service and
pay Landlord or the Person designated by Landlord, monthly for such service at a
rate which shall be no greater than the prevailing competitive rate for
equivalent service in the locale. If Landlord shall implement a refuse recycling
program for the Shopping Center, Tenant shall participate in such a program and
shall comply with all rules and regulations promulgated by Landlord in
connection therewith, including, but not limited to, the sorting of refuse by
type for deposit in designated containers.
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D. Except for repairs hereunder to be made by Landlord, to take good care
of the Premises and the fixtures and appurtenances therein and make all other
necessary repairs and replacements thereto, of every kind whatsoever (including,
without limitation, repairs and replacements to windows, doors, saddles, plate
glass, store fronts, air conditioning and heating installations and plumbing
inside the Premises or located outside but exclusively serving the Premises and
any exterior installation peculiar to the conduct of Tenant's business such as,
but not limited to, signs, displays or exterior devices of any nature) which
repairs and replacements shall be in quality and class at least equal to the
original work. If Tenant fails to make any such repairs or replacements,
Landlord may after reasonable notice (other than in the case of an emergency) to
Tenant make same for the account of Tenant, at Tenant's expense, which amount
shall be considered Additional Rent and shall be due and payable by Tenant when
billed by Landlord. Tenant shall not be required to make structural repairs
unless the necessity therefor arises by reason of Tenant's Work, installations
or alterations made by Tenant, the manner of Tenant's use or occupancy or any
other cause created by Tenant.
E. To make all repairs, alterations, additions or replacements to the
Premises, including appurtenances, equipment, facilities and fixtures therein,
arising out of the manner of Tenant's use or occupancy of the Premises or
necessary to satisfy any Governmental Requirement: to keep the Premises equipped
with all safety appliances so required because of such use or occupancy; and
otherwise to comply with the orders and regulations of any Governmental
Authority. Tenant shall not be required to make structural alterations unless
the necessity therefor arises by reason of Tenant's Work, installations or
alterations made by Tenant, the manner of Tenant's use or occupancy or any other
cause created by Tenant.
F. To pay promptly when due the entire cost of any work to the Premises,
including equipment, facilities and fixtures therein, so that the Premises and
all of Tenant's fixtures and equipment shall, at all times, be free of
encumbrances or liens, including liens for labor and materials; to procure all
Necessary Approvals before undertaking such work; to permit Landlord to post and
keep posted on the Premises, sufficient, conspicuous notices stating that any
improvements are not being made at Landlord's instance; to do all such work in a
good and workmanlike manner acceptable to Landlord, employing materials of good
quality; no perform such work in such a manner as to insure proper maintenance
of good and harmonious labor relationships; to comply with any Governmental
Requirement relating thereto. Tenant understands that as part of the rules and
regulations promulgated by Landlord in connection with Tenant's Work, Landlord
requires a construction barrier which fulfills Landlord's construction criteria
to be erected around the mall exposure of the Premises. In the event that such a
barrier is already in place at the time Tenant takes possession of the Premises
to prosecute Tenant's Work, Tenant shall pay to Landlord, as consideration for
Landlord having provided the barrier and thereby having relieved Tenant of
responsibility for erecting same, an amount equal to the product of the
multiplication of the sum set forth on page 1-1 by the number of linear feet
constituting the length of the barrier. Said amount shall be payable to Landlord
not later than ten (10) days following the date on
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which Tenant commences Tenant's Work and shall constitute Additional Rent under
the Lease. Tenant shall within ten (10) days after completion of any work
performed by Tenant, file for record in the appropriate public records, a
"notice of completion."
G. To defend and save Landlord harmless and indemnified from all injury,
loss, claims or damage (including reasonable attorneys' fees and disbursements
incurred by Landlord in conducting an investigation and preparing for and
conducting a defense) to any Person (including Tenant's employees) or property,
arising from, related to, or in any way connected with the use or occupancy of
the Premises or the conduct or operation of Tenant's business, unless such
injury, loss, claims or damage be attributable to the negligence or willful acts
of Landlord or its agents, servants or employees.
H. To maintain with responsible companies approved by Landlord (said
approval not to be unreasonably withheld), (i) commercial general liability
insurance (or comparable coverage, including products liability and blanket
contractual liability insurance) against all claims, demands or actions for
personal injury, bodily injury or property damage arising from, related to, or
in any way connected with Tenant's Work, Tenant's occupation of the Premises, or
the conduct and operation of Tenant's business, or caused by actions or
omissions to act, where there is a duty to act, of Tenant, its agents, servants
and contractors, to the limits of not less than $3,000,000.00 per claim and in
the aggregate, which limits may be provided by any combination of primary and
umbrella or excess insurance, and which insurance shall be on an occurrence
basis and shall be endorsed to name Landlord, its agents and employees as
additional insureds; (ii) "All-Risk" property insurance, including such flood
and earthquake coverage as Landlord may, from time to time, require covering all
of Tenant's real and personal property values, such as fixtures and equipment,
stock-in-trade, furniture, furnishings, finishes, improvements and betterments
installed or made by or on behalf of Tenant in, on or about the Premises, to the
extent of their replacement cost without deduction for depreciation, as well as
loss of business income (so-called business interruption) coverage, to include
the Fixed Rent and Additional Rent payable under this Lease; (iii) if there is
air conditioning or refrigeration equipment valued in excess of $50,000.00,
boiler and machinery coverage at replacement cost, or if there is a boiler or
pressure vessel or other similar equipment in the Premises, boiler and machinery
coverage in the minimum amount of $500,000.00; and (iv) workers' compensation,
disability and such other similar insurance covering all persons employed by
Tenant in connection with Tenant's Work and the operation of Tenant's business
and with respect to whom death or bodily injury claims could be asserted against
Tenant, Landlord or the Shopping Center. All of said insurance shall be in form
and with deductibles reasonably satisfactory to Landlord and shall provide that
it shall not be subject to cancellation, termination or change except after at
least thirty (30) days' prior written notice to Landlord. In the case of boiler
and machinery insurance, the policy or policies shall cover Landlord or any
designee of Landlord as a loss payee and shall provide that losses sustained by
Landlord shall be adjusted by and payable to Landlord. Certificates of insurance
evidencing the coverage required pursuant to this Subsection H. together with
certificates evidencing coverage on the part of Tenant's contractors, shall be
deposited with Landlord not less than ten (10) days prior to the day Tenant
begins Tenant's Work and upon renewals of said
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policies not less than fifteen (15) days prior to the expiration of the term of
such coverage. All such policies shall be delivered with satisfactory evidence
of the payment of the premium therefor. Landlord and Tenant mutually agree that
with respect to any loss which is covered by "All-Risk" property insurance then
being carried by them respectively, or required to be carried, the party
carrying or required to carry such insurance and suffering said loss, releases
the other of and from any and all claims with respect to such loss, including
amounts within the deductibles, and they further mutually agree that their
respective insurance companies shall have no right of subrogation against the
other on account thereof.
I. In the event of any action or proceeding arising out of or pursuant to
this Lease, the successful party shall be entitled to recover its reasonable
attorneys' fees and all other costs and expenses incurred in connection with the
action or proceeding.
J. Within twenty (20) days following receipt of actual notice thereof, to
cause to be discharged of record by bonding, payment or otherwise, any
mechanic's or similar lien, judgment, encumbrance, security interest, chattel
mortgage or notice thereof at any time filed in any public office against the
Shopping Center or the Premises (including any fixtures or equipment located
therein) or the owner of any interest therein for any work, labor, services,
materials, fixtures, equipment or property claimed to have been performed at or
furnished to the Shopping Center or Premises for or on behalf of Tenant or any
agent or contractor of Tenant, or anyone holding the Premises through or under
Tenant. 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 applicable law.
K. Upon the expiration or other termination of the Term to quit and
surrender the Premises to Landlord, broom clean, in good order and condition,
ordinary wear and tear and casualty damages excepted, and to remove all property
of Tenant and each alteration, addition and improvement made by Tenant as to
which Landlord shall have made the election provided for in Section 2.4 hereof,
to repair all damage to the Premises caused by such removal and restore the
Premises to the condition in which they were prior to the installation of the
articles so removed. Any property not so removed and as to which Landlord shall
not have made said election, shall be deemed to have been abandoned by Tenant
and may be retained or disposed of by Landlord, as Landlord shall desire.
However, Tenant shall be responsible for the cost of removal and disposal. If
the last day of the Term falls on a day the Shopping Center is closed, the Term
shall expire on the business day immediately preceding and Tenant's obligation
to observe or perform this covenant shall survive the expiration or termination
of the Term. Immediately upon the failure of Tenant to perform any covenant of
this Subsection K. Landlord may, without notice, do so, and shall be entitled to
receive from Tenant the then cost of performance of such convenant, such damages
to be paid in addition to and separate and independently from damages accruing
by reason of breach of any other covenant of this Lease.
L. (1) Tenant shall join the Shopping Center's Merchants' Association (the
"Association") and remain a member thereof throughout the Term of this Lease and
comply with its
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rules and regulations and by-laws and promptly pay, when due, all dues and
assessments levied or charged by the Association, which dues and assessments may
be collected by the Association as third party beneficiary hereunder, or by
Landlord as agent for and on behalf of the Association as if such dues and
assessments were Additional Rent. The annual dues payable to the Association
shall be the greater of (i) the amount set forth in Article 1, which amount
shall be increased on each anniversary of the Commencement Date by ten (10%)
percent of the amount payable by Tenant for the immediately preceding twelve
(12) month period, or (ii) the amount established from time to time by the
Association. Tenant shall participate in the Association's Shopping Center-wide
sales and on-site promotions, as well as gift certificate, credit card and other
marketing programs. If the Merchants' Association is, at Landlord's option,
discontinued, Tenant shall participate in such substitute promotional and/or
marketing programs as Landlord may, from time to time, establish and shall pay
to Landlord, as Additional Rent, for deposit in the Promotion Fund (as defined
in paragraph (6), an initial, annual amount equal to the Association dues
payable by Tenant at the time of the discontinuance of the Association, said
amount to be increased on each subsequent anniversary of the Commencement Date
by ten (10%) percent of the amount payable by Tenant for the immediately
preceding twelve (12) month period.
(2) Tenant shall, at Tenant's cost and expense, advertise in at least four
(4) Association (or, if there is no Association, Landlord sponsored) catalogues,
newspapers, magazines or similar publications (collectively, "Publications")
every calendar year, each such advertisement to be the size specified for the
relevant Publication in the Association's (or Landlord's) annual marketing plan
for the Shopping Center. If, at the end of a calendar year, it is determined
that Tenant has failed to advertise in four (4) such Publications, Tenant shall
pay to Landlord, as Additional Rent, with respect to each failure to
participate, a sum equal to the average cost of one (1) full-page color
advertisement in a promotional catalogue. Said sum shall be deposited by
Landlord in the Promotion Fund and used for the purposes described in paragraph
(6).
(3) The Association (or, if there is no Association, then Landlord) may,
from time to time, decrease the number of Publications in which Tenant is
required to advertise each year or eliminate such advertising requirement
entirely for a specified period. In such event, Tenant shall pay to the
Association (or, if there is no Association, then to the Promotion Fund) an
amount equal to the product of the multiplication of (i) the average cost for
the then current year of a one-half (1/2) page color advertisement in a
promotional catalogue, by (ii) the remainder resulting from the subtraction of
the number of advertisements required of Tenant for the then current year from
four (4). Such amount shall be used by the Association (or if there is no
Association, then by Landlord) for the purposes described in paragraph (6).
(4) In the event Tenant shall place an advertisement in a Publication
sponsored by the Association (or by Landlord) and shall then fail to pay the
cost of such advertisement (whether to the Association or to the third-party
publisher, as the case may be), Landlord shall have the right, but not the
obligation, upon five (5) days' prior written notice to Ten-
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ant, to pay such cost for and on behalf of Tenant. The amount so paid by
Landlord shall constitute Additional Rent hereunder and Tenant shall reimburse
Landlord in such amount within ten (10) days following Landlord's demand
therefor.
(5) The failure of any other tenant or occupant of the Shopping Center to
become a member of or contribute to the Association (or participate in
Landlord's substitute promotional and/or marketing programs or contribute to the
Promotion Fund) shall in no way release Tenant from its obligations to do so;
nor shall the failure of any tenant or occupant to advertise in any Publication
release Tenant from its obligation to so advertise.
(6) The Promotion Fund shall be used by Landlord to pay all costs and
expenses (including the costs of administration) associated with the formulation
and carrying out of an ongoing program for the promotion of the Shopping Center,
which program may include, without limitation, special events, shows, displays,
institutional advertising for the Shopping Center, promotional literature to be
distributed within the general trade area of the Shopping Center, and other
activities designed to attract customers to the Shopping Center.
(7) If the Shopping Center shall be expanded by adding a Department Store
and/or ten (10%) percent or more to the gross leasable area of the Shopping
Center (an "Expansion"), Tenant shall pay to Landlord's Promotion Fund a
one-time charge for each such Expansion. Such Expansion charge shall be an
amount equal to the annual Merchants' Association Dues payable by Tenant for the
Lease Year immediately preceding the year in which work on the Expansion
commences and shall be payable upon thirty (30) days' prior written notice from
Landlord given at any time subsequent to the commencement of construction. A
like amount shall also be payable by Tenant to Landlord's Promotion Fund in the
event that the Shopping Center shall be substantially renovated. For purposes of
this subparagraph, the term "substantial renovation" or any variation thereof
shall be deemed to mean a redecoration of the covered mall portion of the common
area of the Shopping Center to the extent of at least fifty (50%) percent
thereof, including new flooring and the painting and/or recovering of the walls.
The amount payable to Landlord's Promotion Fund in connection with a substantial
renovation of the Shopping Center shall be due upon thirty (30) days' prior
written notice from Landlord to Tenant, but in no event prior to commencement of
the renovation. In the event of a contemporaneous Expansion and renovation of
the Shopping Center, Tenant shall be assessed only the one-time Expansion
charge.
(8) If the Shopping Center shall be expanded or renovated as aforesaid,
Tenant, upon the request of Landlord or the Association (as the case may be),
shall advertise in one additional Publication designed to publicize and/or
coordinate with such Expansion or renovation. The provisions of paragraphs (2),
(3) and (4) shall apply with respect to Tenant's advertisement in such
additional Publication.
M. Tenant shall furnish to Landlord an annual statement at the end of each
Lease Year showing the amounts spent by Tenant on white space advertising or
other advertising media. Each such annual statement shall be made a part of the
annual report required
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to be furnished by Tenant under Section 3.3. If Tenant's annual statement shows
that Tenant has expended for such advertising, during the preceding Lease Year,
less than the Percentage of Advertising Required, Tenant shall, within thirty
(30) days after the required delivery date of its annual statement, pay to the
Merchants' Association (or substitute Promotion Fund) the difference between the
amount actually expended for such advertising and the Percentage of Advertising
Required. Dues or other payments made by Tenant to the Merchants' Association
shall not be deemed an amount expended for advertising within the meaning of
this Subsection M, but amounts expended pursuant to paragraph 6.1L(2) shall be
deemed an expenditure for the purpose of this Subsection M. All expenditures
made by Tenant for advertising in connection with Tenant's other stores, if any,
within the trade area of the Shopping Center, may be included by Tenant to
comply with this Subsection provided such advertising in all instances includes
the Premises and is distributed to the geographical trade area in which the
Shopping Center is located.
N. To refer to the Shopping Center by its name above stated in designating
the location of the Premises in all newspaper or other advertising in the
general trade area in which the Shopping Center is located. With respect to any
advertisement in which the location of another similar business activity
conducted by Tenant in the trade area shall be mentioned, Tenant shall also
mention or cause to be mentioned the Trade Name and location of the business
conducted at the Premises.
0. To obtain all Necessary Approvals.
P. To provide in accordance with Landlord's sign criteria, a suitable
identification sign or signs, bearing Tenant's Trade Name, of such size, design
and character as Landlord shall approve and install said sign or signs at a
place or places designated by Landlord. Tenant shall maintain any such signs or
other installations in good condition and repair.
Q. To conform to all reasonable rules and regulations which Landlord may
make for management and use of the Shopping Center, requiring such conformance
by Tenant and Tenant's employees. Such rules and regulations shall be uniform
and shall not discriminate against Tenant.
R. To deliver to Landlord, within twenty (20) days after a request for
same, all or any of the following items, in such form and containing such
evidence of authenticity and regularity as Landlord may reasonably require.
(l) Balance sheet, annual report and related financial statements of
Tenant, Guarantor, if any, Tenant's parent and all subsidiaries of Tenant for
the previous annual period, same to have been prepared in accordance with
generally accepted accounting principles.
(2) A list of all Affiliates, officers, directors and stockholders
of Tenant, including name, title, number and type of shares owned.
(3) If Tenant or any Person from whom information as aforesaid is
required to be
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submitted is a corporation whose shares are traded on the "over the counter",
American or New York Stock Exchanges then the provisions of paragraphs (1) and
(2) above may be satisfied by submission of Tenant's most recent annual report
and form 10K together with all other current filings with the Securities
Exchange Commission or otherwise made pursuant to Federal securities laws.
(4) Certificates executed by the appropriate chief financial officers (or
executives) of any entity from whom information is required pursuant to this
Subsection to the effect that there has been no material adverse change in its
financial status since the date of the most recent information provided to
Landlord.
(5) A list of all stores operated by any of the Persons from whom
information is required as aforesaid (including shareholders of such Persons) or
their licensees, franchises, concessionaires or the like within a radius of five
(5) miles of the Shopping Center.
Tenant represents that Tenant has the right, power and authority to
execute and deliver this Lease, that such execution, delivery and performance of
Tenant's obligations shall not cause, create or constitute a default or breach
of or under any agreement to which Tenant is a party or by which it is bound.
Tenant further represents that the information concerning its financial status,
stockholders, parent, subsidiaries and Affiliates, if any, prior to the
execution and delivery of this Lease is unchanged, true and correct, accurately
represents the financial status of the Person for whom submitted and that there
has been no material or adverse change in the financial status of Tenant or said
Persons.
Section 6.2. Negative Covenants. Tenant convenants at all times during the
Term and such further time as Tenant occupies the Premises or any part thereof:
A. Except for existing stores, Tenant shall not, nor shall any officer,
director, shareholder, Affiliate, franchisee or licensee or the like of Tenant,
directly or indirectly operate, manage or have any interest in any other store
or facility for the sale at retail of merchandise or services similar to that
which is permitted under "Permitted Use", within five (5) miles of the Shopping
Center (the Retail Restriction Limit). For purposes of this Subsection A, the
Retail Restriction Limit shall be measured along a straight line, the beginning
of which is the point on the outer perimeter of the Shopping Center which is
closest to such other store and the end of which is a point on the main entry
doors of such other store. Without limiting Landlord's remedies in the event
Tenant should violate this covenant, Landlord may include the Gross Sales of
such other store in the Gross Sales transacted in the Premises, for the purpose
of computing Percentage Rent due hereunder. In the event Landlord so elects, all
of the provisions of Section 3.3 hereof shall be applicable to all records
pertaining to such other store.
B. Unless specifically set forth in the Permitted Use, not to sell,
display or distribute (i) any alcoholic liquors or beverages for consumption on
or off the Premises or (ii) any pornographic or obscene or sexually erotic
goods, wares, printed material or services or (iii) any drugs or other
substances whose use or sale is prohibited or controlled by Govern-
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mental Authority, including any merchandise which, although not per se violative
of Governmental Requirements, is designed or may reasonably be inferred to have
been designed for use in connection with such prohibited or controlled items.
C. Not to injure, overload, deface or otherwise harm the Premises or any
part thereof or any equipment or installation therein; nor commit any nuisance;
nor permit the emission of any objectionable noise or odor nor, unless
specifically permitted by the Permitted Use, burn anything within the Shopping
Center; nor permit the collection of trash or refuse contrary to rules and
regulations established by Landlord or by any Person not approved or designated
by Landlord; nor install or cause to be installed any automatic garbage disposal
equipment; nor conduct business at, in, on, about or from all or any part of the
Premises on any days or hours that Landlord does not open the Shopping Center
for business to the public; nor make any use of the Premises or of any part
thereof or equipment therein which is improper, offensive or contrary to any
Governmental Requirement or to the rules and regulations of Landlord as such may
be promulgated from time to time; nor use any advertising medium that may
constitute a nuisance, such as loudspeakers, sound amplifiers or phonographs in
a manner to be heard outside the Premises; nor conduct any auction, fire, "going
out of business" or bankruptcy sales except under conditions approved by
Landlord in writing; nor use or occupy the Premises, or suffer or permit them to
be used or occupied in whole or in part, as a surplus store, salvage or "odd
lot" store, or for any similar business or activity; nor do any act tending to
injure the reputation of the Shopping Center; nor sell or display merchandise
on, or otherwise obstruct, the Common Areas or anywhere else in the Shopping
Center or distribute handbills or other advertising matter in the Shopping
Center outside of the confines of the Premises; nor carry on or permit any
business conduct or practice which, in Landlord's judgment, may harm the
business reputation of Landlord or reflect unfavorably on the Shopping Center,
Landlord or other tenants or which might confuse or mislead the public. Tenant
shall, upon notice from Landlord, immediately discontinue any violation of the
foregoing provisions.
D. Except for those which are interior, non-structural and do not affect
the heating, ventilation, air conditioning, mechanical or utility systems of the
Premises or Shopping Center and the aggregate cost of which does not exceed
$15,000.00, not to make any repairs, installations, alterations or additions or
improvements or work to the Premises without, on each occasion, obtaining the
prior written consent of Landlord, which consent shall not be unreasonably
withheld (it being understood that Landlord's withholding of consent shall not
be deemed unreasonable where Tenant is unable to demonstrate, to Landlord's
reasonable satisfaction, the ability to pay for the proposed work); nor attach
interior signs, placards or other advertising media or other objects to the
windows, doors, valances or ceiling or locate the same either outside of or
within the Premises in such manner as to obstruct the view of Tenant's store
from the mall area or from the outside other than in-substantially. If
Landlord's consent is required, Tenant shall not commence any work as aforesaid
until Tenant shall have filed with Landlord plans and specifications for such
work and Landlord shall have approved same, said approval not to be unreasonably
withheld. Tenant shall perform such work in accordance with such approved plans
and specifications
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using labor not incompatible with other labor at the Shopping Center and such as
will not create any labor disputes or work stoppages. Any work performed by
Tenant shall at all times be subject to Landlord's inspection and approval after
completion to determine whether same complies with the requirements of the
applicable provisions of this Lease. Tenant shall, preceding and during the
course of any alteration, addition, enlargement, improvement or construction,
post or permit Landlord to post and keep posted in conspicuous places on the
Premises, and in addition, serve all Persons who are expected to perform work or
supply materials, such notices as are now or hereafter permitted or required to
be posted to protect Landlord from having its interest in the Premises made
subject to a mechanics' or materialmen's lien arising from such alteration,
enlargement, improvement or construction. Prior to commencing construction,
Tenant shall give Landlord a list of names and addresses for all such Persons.
E. Except those for the sole use of Tenant's employees, not to operate any
coin or token operated vending machine or similar device for the sale of any
goods, wares, merchandise, food, beverage or services, including, but not
limited to, pay telephones, pay lockers, pay toilets, scales, amusement devices
and machines for the sale of beverages, foods, candy, cigarettes or toilet
commodities, without the prior written consent or Landlord.
F. Unless Tenant shall first have received Landlord's written consent with
respect thereto, not to assign, sell, mortgage, hypothecate, encumber, pledge,
or in any manner transfer this Lease or any interest therein, or sublet the
Premises or any part or parts thereof, or grant any concession or license or
otherwise permit occupancy of all or any part thereof by anyone with, through or
under it; nor shall Tenant grant or create any security interest or mortgage,
hypothecate, encumber or pledge any equipment, or improvements located in or
about the Premises. A transfer of any of Tenant's or Guarantor's stock or a
transfer or change of "control" (as such term is defined under the heading
"Affiliate" in Article I of this Lease) of Tenant or Guarantor, if Tenant or
Guarantor is a corporation or a change in the composition of Persons owning any
interest in any non-corporate Tenant shall be deemed an assignment for the
purpose of this Subsection F. In the event of the occurrence of any of the
foregoing events without Landlord's prior consent, this Lease shall, at
Landlord's option, be deemed to have been cancelled, terminated and expired as
of the date of the occurrence of said event. Neither the consent by Landlord to
any of the foregoing, nor any references in this Lease to concessionaires or
licensees shall be construed to relieve Tenant from obtaining the express
consent of Landlord to any further act which is prohibited herein, nor shall the
collection of Rent by Landlord from any assignee, subtenant or other occupant,
after default by Tenant, be deemed a waiver of this covenant or the acceptance
of the assignee, subtenant or occupant as Tenant or a release of Tenant from the
further performance by Tenant of the covenants in this Lease on Tenant's part to
be performed.
(1) The provisions of this Subsection 6.2F shall not be deemed to prohibit
(i) transfers of stock among existing stockholders or among spouse, children or
grandchildren of existing stockholders or inter vivos or testamentary transfers
to trusts established for the benefit of such persons, (ii) a public offering of
the stock of Tenant or Guarantor or (iii) the transfer
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of outstanding voting stock registered under applicable securities laws of
Tenant or Guarantor which are traded on a recognized national securities
exchange. For the purposes of the preceding clause (iii), the term "voting
stock" shall mean shares or stock regularly entitled to vote for the election of
all directors of the corporation.
(2) Landlord shall not unreasonably withhold its consent to an assignment
of this Lease or sublease of the entire Premises to a parent, Affiliate or
wholly-owned subsidiary of Tenant or to any entity with which or into which
Tenant may consolidate or merge and who shall assume for Landlord's benefit the
performance of all of the terms, conditions and covenants of this Lease;
provided, however, that the merged or consolidated entity shall have a net worth
at least equal to the net worth of Tenant at the time of such consolidation or
merger or at the time of the Commencement Date of this Lease, whichever shall be
greater, and further provided that the assignee or sublessee shall use the
Premises under the Trade Name and only for the Permitted Use.
(3) Except for the transactions described in paragraphs (1) and (2) of
this Subsection, Tenant may not assign or sublet the Premises until Tenant
completes Tenant's Work and opens for business. When Tenant requests Landlord's
consent to a transaction other than the types of transactions described in
paragraphs (1) and (2) of this Subsection, such requests shall include the name
of the proposed transferee of stock, assignee or subtenant and its officers,
directors and stockholders and such information as to the financial
responsibility. business and reputation of the proposed assignee, transferee of
stock or subtenant and its officers, directors and stockholders as Landlord may
reasonably require. Upon the receipt of such request and information from
Tenant, Landlord shall have the right, to be exercised in writing within thirty
(30) days after such receipt, to cancel and terminate this Lease, as of the date
set forth in Landlord's notice of exercise of such option, which effective date
of termination in Landlord's said notice shall not be less than sixty (60) nor
more than one hundred twenty (120) days following the service of such notice.
Tenant shall have the right to negate Landlord's cancellation by withdrawing its
request within ten (10) days after service of Landlord's notice, whereupon, this
Lease and the occupancy hereunder shall continue unchanged and in full force and
effect.
(a) In the event Landlord shall exercise such cancellation right, Tenant
shall surrender possession of the Premises on the date set forth in Landlord's
notice and in accordance with the provisions of this Lease relating to surrender
of the Premises at the expiration of the Term. In no event shall the Premises be
subdivided or partially sublet nor any request made for permission to do so.
(b) In the event Landlord shall not exercise its right to cancel this
Lease as provided above, then Landlord's consent to such request shall not be
unreasonably withheld in accordance with subparagraph (c) of this paragraph,
(3), provided such consent to sublease or assignment is effected by a legal
document in form and substance satisfactory to Landlord. In no event shall any
assignment or subletting to which Landlord may have consented release or relieve
Tenant from its obligations fully to perform all of the terms, convenants and
condi-
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tions of the Lease on its part to be performed. Any assignee or subtenant shall
be bound by, subject to and deemed to have assumed performance of all of the
terms, conditions and covenants of this Lease, including, but not limited to,
the Permitted Use set forth in Article I and the Retail Restriction Limit and
any and all defaults shall be cured prior to the assignment or subletting.
(c) In determining reasonableness, Landlord may take into consideration
all relevant factors surrounding the proposed sublease and assignment,
including, without limitation, the following:
(i) The business reputation of the proposed assignee or subtenant and
its officers, directors and stockholders;
(ii) The nature of the business of the proposed assignee or subtenant in
relation to the tenant mix or balance of the Shopping Center;
(iii) The source of the Rent due under this Lease, the financial condition
and operating performance of the proposed assignee or subtenant and
its guarantors, if any;
(iv) Restrictions, if any, contained in lease or other agreements
affecting the Shopping Center;
(v) The extent to which the proposed assignee or subtenant and Tenant
provide Landlord with assurance of future performance hereunder,
including, without limitation, the payment of Percentage Rent; and
(vi) The number of other stores operated by the proposed assignee or
subtenant in the vicinity in which the Shopping Center is located.
(4) This paragraph (4) shall not apply to any transactions described in
paragraphs (1) and (2) above but shall apply to all other transactions. In the
event Tenant shall assign its interest in this Lease or sublet the Premises,
these the Fixed Rent specified in Article I shall be increased, effective as of
the date of such assignment or subletting, to the greater of (i) the rentals
payable by any such assignee or sublessee pursuant to such assignment or
sublease, or (ii) an amount equal to the total of the Fixed Rent, plus
Percentage Rent, required to be paid by Tenant pursuant to this Lease for the
Lease Year immediately preceding such assignment or subletting. In no event
shall the Fixed Rent, after such assignment or subletting, be less than the
Fixed Rent specified in Article I. In addition to the foregoing, Tenant agrees
that in the event or an assignment or subletting, Tenant shall pay to Landlord
any and all consideration, money or thing of value received by Tenant or payable
to Tenant in connection with the transaction, except Tenant shall not be
required to pay to Landlord consideration received in connection with the sale
of Tenant's trade fixtures, equipment, inventory or leasehold improvements.
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(5) Except for transactions of the types described in paragraphs (1) and
(2), in the event of any assignment or subletting, Landlord shall have the right
to require that there be deposited with and held by Landlord, in addition to any
other security then held by Landlord, an amount equal to three (3) months' rent
ensuing.
(6) Use of the terms "assignments or "subletting" shall be deemed to
include stock or share transfers as to corporations, and transfers of ownership
interests in the case of non-corporate entities.
(7) Tenant shall pay to Landlord a reasonable fee and all reasonable
expenses incurred by Landlord for the processing of any assignment, sublease or
other transaction covered or affected by this Subsection 6.2F.
G. Not to permit commercial or piped in music to be played other than in
the Premises or in a manner which can be heard outside the Premises or, except
for work performed by its own employees during reasonable hours designated by
Landlord, not to permit rubbish or garbage removal, window cleaning, janitorial
or maintenance services in or about the Premises, except in each such case, by a
Person, if any, designated by Landlord. Landlord agrees that the prices to be
charged by the Person, if any, so designated to supply or perform any or all of
the services referred to in this Subsection G shall be competitive.
H. Not to place or install or suffer to be placed or installed or maintain
any graphics or sign in, upon or outside the Premises or in the Shopping Center
unless it complies with Landlord's sign criteria and is approved by Landlord
pursuant to Subsection P of Section 6.1, nor any awning, canopy, banner, flag,
pennant, aerial, antenna or the like in or on the Premises. Tenant shall not
place in the windows or at or near the entrance to the Premises any sign,
graphics, decoration, lettering, advertising matter, shade or blind or other
thing of any kind, other than neatly lettered signs of reasonable size placed on
the floor thereof identifying articles offered for sale and the prices thereof,
without first obtaining Landlord's written approval and consent in each
instance, which consent shall not be unreasonably withheld. Tenant further
agrees that Landlord shall have the right to disapprove and require the removal
of any sign, graphics, lettering, lights, advertising or other forms of
inscription located in the front five (5) feet of the Premises. Any signs,
lights, lettering or other forms of inscription displayed without prior written
approval of Landlord may be removed forthwith by Landlord. The cost of such
removal shall be paid by Tenant and Tenant shall thereafter restore the Premises
and the building to the condition existing immediately prior to the installation
of the removed signs, lettering or inscription.
I. Not to place a load upon any floor of the Premises which exceeds the
floor load per square foot area which such floor was designated to carry. If
Tenant shall desire a floor load in excess of that for which the floor or any
portion of the Premises is designed, upon submission to Landlord of plans
showing the location of and the desired floor live load for the area in
question, Landlord may, at its option, strengthen and reinforce the same, at
Tenant's sole expense, so as to carry the live load desired. Business machines
and mechanical equip-
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ment used by Tenant which cause vibration or noise that may be transmitted to
the building or to any occupiable space to such a degree as to be reasonably
objectionable to Landlord or to any tenants in the building shall be placed and
maintained by Tenant at its expense, in settings of cork, rubber or spring-type
vibration eliminators sufficient to eliminate such vibration or noise.
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ARTICLE 7
Destruction: Condemnation
Section 7.1. Fire or Other Casualty
A. Tenant shall give prompt notice to Landlord in case of fire or other
damage to the Premises.
B. If (i) the Shopping Center or the building in which the Premises are
located (whether or not the Premises were damaged) shall be damaged to the
extent of more than twenty-five (25%) percent of the cost of replacement
thereof, respectively, or (ii) the proceeds of Landlord's insurance recovered or
recoverable as a result of' the damage described in subsection (i) preceding
shall be substantially insufficient to pay fully for the cost of replacement of
such buildings, or (iii) the Premises or the building shall be damaged as a
result of a risk which is not covered by Landlord's insurance, Landlord may
terminate this Lease by notice given within ninety (90) days after such event
and upon the date specified in such notice, which shall be not less than thirty
(30) nor more than sixty (60) days after the giving of said notice, this Lease
shall terminate. If the Premises shall be damaged in whole or in part during the
last two (2) years of the Term, then either Landlord or Tenant may terminate
this Lease by notice given to the other within ninety (90) days after the
occurrence of such damage, and upon the date specified in such notice, which
shall not be less than thirty (30) nor more than sixty (60) days after the
giving of said notice, this Lease shall terminate. If the casualty, or
Landlord's repair and restoration work shall render the Premises untenantable,
in whole or in part, then, a proportionate credit against Rent (except
Percentage Rent, Tax Rent and that portion of Common Area Rent attributable to
the cost of insurance) shall be allowed from the date when the damage occurred
until the earlier of (i) the day after Landlord has substantially completed the
work required to repair and restore the Premises, as set forth in Subsection C
of this Section, or (ii) the date Tenant shall have opened for business, or
(iii) the date of termination by Landlord, in the event Landlord elects to
terminate this Lease. Said proportion shall be computed on the basis of the
ratio which the amount of Floor Space rendered untenantable bears to the total
Floor Space. If there is a credit against Fixed Rent, in computing the "break
even" for Percentage Rent purposes, the amount of Fixed Rent less such credit
shall be applied, or if the "break even" is expressed herein as a fixed dollar
amount, such amount shall be proratably reduced.
C. If this Lease shall not be terminated as provided in Subsection B
hereof, Landlord shall, at its expense, repair or restore the Premises with
reasonable diligence and dispatch, to the condition obtaining immediately prior
to the casualty except that Landlord shall not be required to repair or restore
any of Tenant's leasehold improvements or betterments, furniture, furnishings,
finishes, decorations or any other installations made by Tenant. Upon the
completion by Landlord of repair or restoration, Tenant shall prepare the
Premises for occupancy by Tenant in the manner obtaining immediately prior to
the damage or destruction in accordance with plans and specifications approved
by Landlord. All work of restoration or repair by Tenant shall be subject to the
provisions of Article 2.
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D. The provisions of this Section 7.1 shall supersede and are in lieu of
the provisions of any present or future statute or law to the contrary of the
state in which the Shopping Center is located.
E. The "cost of replacement", as such term is used in Subsection B hereof,
shall be determined by the company or companies insuring Landlord against the
casualty in question, or if there shall be no insurance, then, by an independent
engineer selected and paid for by Landlord.
Section 7.2. Eminent Domain.
A. If twenty-five (25%) percent or more of the Floor Space of the Premises
shall be taken or condemned by any competent authority for any public or
quasi-public use or purpose, either party may elect, by giving notice to the
other not more than sixty (60 days) after the date on which title shall vest in
such authority, to terminate this Lease, and, in either such event, the Term of
this Lease shall cease and terminate as of the said date of title vesting. In
case of any taking or condemnation, whether or not the Term of this Lease shall
cease and terminate, the entire award shall be the property of Landlord and
Tenant hereby assigns to Landlord all its right, title and interest in and to
any such award. Tenant shall, however, be entitled to claim, prove and receive
in the condemnation proceeding such awards as may be allowed for loss of lease,
moving expense, fixtures and other equipment installed by it but only if such
awards shall be made by the condemnation court in addition to the award made by
it for the land and the building or part thereof so taken.
B. The current Rent (except Percentage Rent) in the case of any taking or
condemnation, shall be apportioned as of the date of vesting of title and, if
the Term of the Lease shall not have ceased and have been terminated as of said
date, Tenant shall be entitled to a pro rata reduction in the Rent (except
Percentage Rent) payable hereunder based on the proportion which the Floor Space
of the space taken bears to the entire Floor Space of the Premises immediately
prior to such taking.
C. If more than fifty (50%) percent of the Floor Space of the building, or
if more than twenty-five (25%) percent of the total Floor Space in the Shopping
Center shall be so taken or conveyed, or if so much of the parking facilities
shall be so taken or conveyed that a reasonable number of parking spaces
necessary, in Landlord's judgment, for the continued operation of the Shopping
Center shall not be available for use by patrons of the Shopping Center, then,
in, any such event, Landlord may, by notice in writing to Tenant delivered on or
before the day of surrendering possession to the Governmental Authority,
terminate this Lease, and Rent shall be paid or refunded as of the date of
termination.
D. If this Lease is not terminated pursuant to the provisions of this
Section 7.2, Landlord shall, at its expense, but only to the extent of an
equitable proportion of the net
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award or other compensation (after deducting legal and all other fees in
connection with obtaining said award) for the portion taken or conveyed, of the
building of which the Premises are a part (excluding award for land) make such
repairs or alterations as are in Landlord's reasonable judgment necessary to
constitute the building a complete architectural and tenantable unit.
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ARTICLE 8
Defaults and Remedies
Section 8.1. Bankruptcy, Insolvency.
A. If (i) Tenant or Guarantor shall become insolvent or make an assignment
for the benefit of creditors; or (ii) if there shall be filed against or by
Tenant or Guarantor in any court, pursuant to any statute either of the United
States or of any state, a petition in bankruptcy or insolvency or for
arrangement or reorganization or for the appointment of a receiver or trustee of
all or portion of Tenant's or Guarantor's property and it is not discharged
within thirty (30) days after filing; or (iii) in the case of a filing under
Title 11 of the United States Code (the Federal Bankruptcy Act), if this Lease
is not assumed within sixty (60) days after filing; then upon the occurrence of
any of such foregoing events, this Lease shall, automatically and as a matter of
law, be deemed to have been cancelled, terminated, expired and rejected in which
event neither Tenant nor any Person claiming through or under Tenant by virtue
of any statute or of an order of any court shall be entitled to acquire or
remain in possession of the Premises, and Landlord shall have no further
liability hereunder and Tenant or any such Person, if in possession, shall
forthwith quit and surrender the Premises. If this Lease shall be so cancelled
or terminated, Landlord, in addition to the other rights and remedies of
Landlord by virtue of any other provision herein or elsewhere in this Lease
contained or by virtue of any statute or rule of law, may retain and apply to
damages incurred by Landlord, any Rent, Security Deposit or monies received by
Landlord from Tenant or on behalf of Tenant.
B. In the event of the termination or rejection of this Lease pursuant to
Subsection A hereof, Landlord shall be entitled to recover from Tenant an amount
equal to the maximum allowed by any statute, law or rule of law in effect at the
time when, and governing the proceeding in which, such damages are to be proved.
If this Lease shall have been terminated pursuant to Section 8.2 or otherwise,
prior to the occurrence of any of the events described in Subsection 8.1A above,
then Landlord's rights under this Lease shall not be affected or prejudiced by
this Section 8.1.
Section 8.2. Default.
A. If Tenant defaults in fulfilling any of the covenants or provisions of
this Lease, including, without limiting the generality of the foregoing, the
covenants for the payment of Rent when due or any part thereof or for the making
of any other payment herein provided or for the performance of any other
covenant on Tenant's part to be performed hereunder, and such default shall
continue for ten (10) days in the case of a default in the payment of Rent or
other monies, after service by Landlord of written notice upon Tenant specifying
the nature of said default, or, twenty (20) days as to any other default except
that if a non-monetary default or omission shall be of such a nature that the
same cannot be reasonably cured or remedied within said twenty (20) days, if
Tenant shall not in good faith have com-
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menced the curing or remedying of such default within such twenty-day period,
and shall not thereafter diligently proceed therewith to completion, or if any
levy, execution or attachment shall be issued against Tenant or any of Tenant's
property at the Premises, or if the Premises become abandoned, vacant or
deserted, or if Tenant shall default with respect to any other lease between
Landlord (or any Affiliate of Landlord) and Tenant (or any Affiliate of Tenant),
Landlord may serve upon Tenant a written notice that this Lease and the Term
will terminate on a date to be specified therein, which shall be not less than
five (5) days after the giving of such notice, and upon the date so specified,
this Lease and the Term shall terminate and come to an end as fully and
completely as if such date were the date herein definitely fixed for the end and
expiration of this Lease and the Term, and Tenant shall then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter set
forth; provided, however, that if Tenant shall default (i) in the timely payment
of any item of Rent or the timely reporting of Gross Sales as required by
Section 3.3 hereof and any such default shall continue or be repeated for three
(3) consecutive months or for a total of four (4) months in any period of twelve
(12) months or (ii) in performance of any other particular convenant of this
Lease more than four (4) times in any period of six (6) months, then,
notwithstanding that such defaults shall have each been cured within the period
after notice as above provided, any further similar default shall be deemed to
be deliberate and Landlord thereafter may serve the said written five (5) days'
notice of termination without affording to Tenant an opportunity to cure such
further default.
B. If this Lease shall have been terminated pursuant to Section 8.1 or
8.2, or if Tenant has defaulted (beyond any opportunity to cure hereinabove set
forth) in the payment of Rent or in observing any other term, condition or
covenant, then, in any of such events, Landlord may institute summary
proceedings, re-enter the Premises, dispossess Tenant and the legal
representative of Tenant or other occupants of the Premises, and remove their
effects and hold the Premises as if this Lease had not been made.
Section 8.3. Remedies of Landlord.
A. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (i) the Rent shall become due thereupon and be
paid up to the time of such re-entry, dispossess and/or expiration; (ii)
Landlord may relet the Premises or any part or parts thereof, either in the name
of Landlord or otherwise, for a term which may at Landlord's option be less than
or exceed the period which would otherwise have constituted the balance of the
Term, and may grant commercially reasonable concessions including free rent; and
(iii) Tenant or the legal representative of Tenant shall also pay Landlord, for
the failure of Tenant to observe and perform Tenant's covenants herein
contained, the maximum amount of damages recoverable or at Landlord's option,
for each month of the period which would otherwise have constituted the balance
of the Term, any deficiency between (x) the sum of (a) one (1) monthly
installment of Fixed Rent, (b) one-twelfth (1/12) of the average annual
Percentage Rent payable hereunder based upon the three (3) Lease Years
immediately preceding (or the entire preceding portion of the Term if less than
three
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(3) Lease Years), (c) one twelfth (1/12) the Tax Rent that would have been
payable for the year in question but for such re-entry or termination, (d) the
current monthly Common Area Rent and (e) any other Rent or monies payable under
this Lease, and (y) the net amount, if any, of the rents collected on account of
the lease or leases of the Premises for each month of the period which would
otherwise have constituted the balance of the Term. The failure of Landlord to
relet the Premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing damages there shall be included
such commercially reasonable expenses as Landlord may incur in connection with
reletting, such as court costs, attorneys' fees and disbursements, brokerage
fees, other costs and expenses incurred by Landlord and for putting and keeping
the Premises in good order or for preparing the same for reletting as
hereinafter provided. Any such damages shall, at Landlord's option, be paid in
monthly installments by Tenant on the rent day specified in this Lease and any
suit brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Landlord to collect the deficiency for any
subsequent month by a similar proceeding or, at Landlord's option, in advance,
discounted to the then present value. Landlord, at Landlord's option, may make
such alterations, repairs, replacements and/or decorations in the Premises as
Landlord in Landlord's reasonable judgment considers advisable and necessary for
the purpose of reletting the Premises; and the making of such alterations and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Provided that Landlord makes the same effort to relet
the Premises as other space in the Shopping Center, Landlord shall in no event
be liable in any way whatsoever for failure to relet the Premises, or in the
event that the Premises are relet, for failure to collect the rent under such
reletting. Landlord shall not, in reletting the Premises, be required to prefer
the letting of the Premises over any other space in the Shopping Center.
Landlord shall have in addition to any statutory or other liens or rights, if
any, and not in lieu thereof, a lien on all fixtures, equipment and leasehold
improvements located at the Premises.
B. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this Lease of any particular remedy shall not preclude Landlord from any other
remedy.
Section 8.4. Waiver of Trial by Jury: Tenant Not to Counter-Claim. It is
mutually agreed by and between Landlord and Tenant that the respective parties
hereto shall and they hereby do waive trial by jury in any action, proceeding or
counter-claim or other claim brought by either of the parties hereto against the
other on any matters not relating to negligently caused personal injury or
property damage, but otherwise arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, and any emergency statutory or any other statutory remedy. Tenant
further agrees that unless the failure to do so would constitute a waiver of its
right to institute a separate action or proceeding against Landlord, it shall
not interpose any
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within thirty (30) days. If Landlord shall sell the Shopping Center, or shall
lease the Shopping Center, in either case subject to this Lease, or shall
otherwise assign or dispose of this Lease, Landlord may assign and turn over the
Security Deposit or any balance thereof to Landlord's grantee, lessee or
assignee, and Tenant hereby releases and relieves Landlord from any and all
liability for the return of said deposit and shall look solely to said grantee,
lessee or assignee; it being expressly agreed that this provision shall apply to
each and every sale, conveyance or lease of the Shopping Center or assignment or
disposition of this Lease. Landlord shall not be required to place the Security
Deposit in an interest-bearing account and said fund shall be returned to Tenant
without interest.
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ARTICLE 9
Additional Provisions
Section 9.1. Notices from One Parry to the Other. Any notice or demand
from Landlord to Tenant or from Tenant to Landlord shall be in writing and shall
be deemed duly served if mailed by registered or certified mail, return receipt
requested, addressed, if to Tenant, at the address of Tenant set forth herein,
or to such other address as Tenant shall have last designated by notice in
writing to Landlord, and if to Landlord, at the address of Landlord set forth
herein or such other address as Landlord shall have designated by notice in
writing to Tenant. Notice shall be deemed served when mailed.
Section 9.2. Brokerage. Tenant warrants that it has had no dealings with
any broker or agent in connection with this Lease other than the Broker, if any,
named elsewhere in this Lease and covenants to pay, hold harmless and indemnify
Landlord from and against any and all costs, expense or liability for any
compensation, commissions and charges claimed by the Broker or by any other
broker or agent with respect to this Lease or the negotiation thereof with whom
Tenant had dealings.
Section 9.3. Estoppel Certificates. Each of the parties agrees that it
will, at any time and from time to time, within twenty (20) business days
following written notice by the other party herein specifying that it is given
pursuant to this Section, execute, acknowledge and deliver to the party who gave
such notice a statement in writing certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications), and the
dates to which the Rent and any other payments due hereunder from Tenant have
been paid in advance, if any, and stating whether or not to the best knowledge
of the signer of such certificate the other party is in default in performance
of any covenant, agreement or condition contained in this Lease, and if so,
specifying each such default of which the signer may have knowledge.
Section 9.4. Applicable Low and Construction. The laws of the state in
which the Shopping Center is located shall govern the validity, performance and
enforcement of this Lease. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair any other provision. All negotiations,
considerations, representations and understandings between the parties are
incorporated in this Lease. Landlord or Landlord's agents have made no
representations or promises with respect to the Shopping Center or the Premises,
except as herein expressly set forth. Tenant further understands that this Lease
and every other lease agreement with every other tenant or occupant of the
Shopping Center is negotiated on its own merits and Landlord does not make any
representation as to the similarity of the terms of this Lease with any other
such lease or agreement. The headings of the several articles and sections
contained herein are for convenience only and do not define, limit or construe
the contents of such articles or sections, it being understood that the
so-called "Recital" constitutes part of the agreement between Landlord and
Tenant. Whenever herein
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the singular number is used, the same shall include the plural, and the neuter
gender shall include the masculine and feminine genders.
Section 9.5. Relationship of the Parties. Nothing contained herein shall
be deemed or construed by the parties hereto, or any third party, as creating
the relationship of principal and agent or partnership or joint venture between
the parties hereto, it being understood and agreed that neither the method of
computation of Rent nor any other provision contained herein, nor any acts of
the parties hereto, shall be deemed to create any relationship between the
parties hereto other than the relationship of landlord and tenant.
Section 9.6. Limitations on Liability. Landlord and Landlord's agents and
employees shall not be liable for, and Tenant waives all claims for, loss or
damage to Tenant's business or damage to any Person or property sustained by
Tenant resulting from any accident or occurence (unless, subject, however, to
the waiver of subrogation provision hereof, caused by or resulting from the
negligence or willful acts of Landlord) in or upon the Premises or any other
part of the Shopping Center, including, but not limited to, claims for damage
resulting from: (i) any equipment or appurtenances becoming out of repair; (ii)
injury done or occasioned by wind; (iii) 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; (iv) broken
glass; (v) the backing up of any sewer pipe or downspout; (vi) the bursting,
leaking or running of any tank, tub, washstand, water closet, waste pipe,
drainor any other pipe or tank in, upon or about the building or the Premises;
(vii) the escape of steam or hot water; (viii) water, snow, or ice being upon or
coming through the roof, skylight, trapdoor, stairs, doorways, show windows,
walks or any other place upon or near the building or the Premises or otherwise;
(ix) the falling of any fixture, plaster, tile or stucco; and (x) any act,
omission or negligence of other tenants, licensees or of any other Persons or
occupants of the Shopping Center.
Section 9.7. Landlord's Entry Rights. Landlord or Landlord's agents shall
have the right to enter upon the Premises at all reasonable times to examine
same and to make such repairs, alterations, improvements or additions to the
Premises or to the building as may be necessary, and Landlord shall be allowed
to take all materials into and upon the Premises that may be required therefor
without the same constituting an eviction of Tenant, in whole or in part, and
the Rent shall in nowise abate while such repairs, alterations, improvements or
additions are being made by reason of loss or interruption of the business of
Tenant because of the prosecution of any such work. However, if as the result of
the exercise by Landlord of its rights under this Section 9.7, there is created
a substantial and material interference with Tenant's ability to conduct
business in the Premises, and Tenant therefore closes for more than three (3)
consecutive business days, Tenant shall be entitled to an abatement of Fixed
Rent for each day after the third (3rd) business day during which the condition
continues. Except in emergencies such entry shall be during business hours and
on reasonable oral notice to the Person then in charge of the Premises for
Tenant. Landlord shall use all reasonable efforts not to unreasonably interfere
with or interrupt the conduct and operation of Ten-
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ant's business but in no event shall Landlord be required to incur any
additional expenses for work to be done during hours or days other than regular
business hours or days. Landlord or Landlord's agents shall also have the right
to enter upon the Premises after notice as set forth above, at reasonable times
to show them to prospective lessees or purchasers of the Shopping Center. During
the one hundred eighty (180) days prior to the expiration of the Term, Landlord
may show the Premises to prospective tenants. If, prior to the end of the Term,
Tenant shall have removed all or substantially all of Tenant's property
therefrom, Landlord may immediately enter, renovate and redecorate the Premises
without elimination or abatement of Rent or the payment of other compensation to
Tenant and such action shall have no effect upon this lease.
Section 9.8. Subordination.
A. This Lease is and all of Tenant's rights hereunder are subject and
subordinate to (i) any ground or underlying (including operation) leases that
now exist or may hereafter be placed on the Shopping Center or any part thereof,
and (ii) any mortgages or deeds of trust that now exist or may hereafter be
placed upon the Shopping Center or the interest under any ground or underlying
leases and to any and all advances made thereunder and the interest thereon and
to all renewals, replacements, amendments, modifications, consolidations and
extensions of any of the foregoing. Tenant covenants and agrees that if any
mortgagee of Landlord's interest in any underlying lease or any fee mortgagee
succeeds to Landlord's interest under this Lease by foreclosure or otherwise,
Tenant will, if requested, attorn to such mortgagee and will recognize such
mortgagee as Tenant's landlord under this Lease. At the option of the landlord
or any successor landlord thereunder, Tenant agrees that neither the
cancellation nor termination of any ground or underlying lease to which this
Lease is now or may hereafter become subject or subordinate, nor any foreclosure
of a mortgage either affecting the fee title of the Premises or the ground or
underlying lease, nor the institution of any suit, action, summary or other
proceeding by the landlord or any successor landlord thereof, or any foreclosure
proceeding brought by the holders of any such mortgage to recover possession of
the leased property, shall by operation of law or otherwise result in the
cancellation or termination of this Lease or the obligations of Tenant
hereunder, and Tenant covenants and agrees to attorn to the landlord or to any
successor to Landlord's interest in the Premises. Tenant shall execute and
deliver in recordable form, whatever instruments may be required to acknowledge
or further effectuate the provisions of this Subsection, and in the event Tenant
fails to do so within twenty (20) days after demand in writing, such failure
shall be deemed a material default hereunder. Any mortgagee or trustee under any
such mortgage or deed of trust or the lessor under any such ground or underlying
lease may elect that this Lease shall have priority over its mortgage, deed of
trust or lease and upon notification of such election by such mortgagee, trustee
or lessor to Tenant, this Lease shall be deemed to have priority over said
mortgage, deed of trust or ground or underlying lease whether this Lease is
dated prior to or subsequent to the date of said mortgage, deed of trust or
lease. If the holder of any mortgage, deed of trust or security agreement shall
forward to Tenant written notice of the existence
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of such lien or lease, then Tenant shall, so long as such lien or lease
continues, give to such lienholder or lessor the same notice and opportunity to
correct any default as is required to be given to Landlord under this Lease but
such notice of default may be given to Landlord and such lienholder or lessor
concurrently.
B. If so requested by Tenant, Landlord shall use reasonable efforts to
obtain non-disturbance and attornment agreements from any ground or underlying
lessors or present or future mortgagees of Landlord's interest in the Premises,
which efforts shall consist only of Landlord's making a written request for such
agreements on behalf of Tenant. Tenant shall cooperate in all respects with
Landlord's efforts, shall provide any information reasonably required by such
mortgagees or lessors and shall pay such fees or expenses as may be requested by
such parties in connection with such agreements. Landlord shall not be required
to institute any legal action or proceeding in order to obtain said agreements.
The foregoing shall not be deemed a condition to the effectiveness or continuing
effectiveness of this Lease.
Section 9.9. Construction on Adjacent Premises or Buildings. If any
construction, excavation or other building operation shall be about to be made
or shall be made on any premises adjoining or above or below the Premises or on
any other portion of the building or the Shopping Center, Tenant shall permit
Landlord, or the adjoining owner, and their respective agents, employees,
licensees and contractors, to enter the Premises and to strengthen, add to or
shore the foundations, walls, columns or supporting members thereof, and to
erect scaffolding and/or protective barricades around and about the Premises
(but not so as to preclude entry thereto) and to do any act or thing necessary
for the safety or preservation of the Premises. Except as may be expressly set
forth to the contrary in this Section 9.9, Tenant's obligations under this Lease
shall not be affected by any of the foregoing or any such construction or
excavation work, shoring-up, scaffolding or barricading. Landlord shall not be
liable in any such case for any inconvenience, disturbance, loss of business or
any other annoyance arising from any such construction, excavation, shoring-up,
scaffolding or barricades, but Landlord shall use its best efforts so that such
work will cause as little inconvenience, annoyance and disturbance to Tenant as
possible, consistent with accepted construction practice in the vicinity, and so
that such work shall be expeditiously completed. It is understood by Tenant that
shopping centers are at times expanded or reconfigured by the addition of new or
reconfigured buildings, improvements or structures (including multi-level,
decked or subsurface parking structures) and if the foregoing occurs, Landlord
shall have the right of access to enter upon the Premises to perform
construction work and shall use its reasonable efforts to complete all
construction in the Premises as promptly as possible (considering the nature and
extent of the construction and subject to prudent construction practices).
Landlord shall have the right to require Tenant to temporarily curtail its
business or to temporarily close the Premises if necessary in connection with
the construction work. Accordingly, (i) if Landlord requires Tenant to
temporarily suspend business or to temporarily close the Premises because of any
such changes or (ii) if Tenant's use and occupancy of the Premises or Tenant's
access to the covered mall in
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front of the Premises is materially, adversely interfered with and Tenant
temporarily closes for business, Tenant shall receive an abatement of Rent
(except Percentage Rent) on a per diem basis for the number of days for which
Tenant is required to close. Notwithstanding the foregoing, Tenant shall have no
right to seek damages or to cancel and terminate this Lease because of the
proposed expansion, nor shall Tenant have the right to restrict, inhibit or
prohibit said expansion.
Section 9.10. Mall Expansion.
A. In the event Landlord shall add additional buildings to the Shopping
Center or expand or reconfigure any of the buildings currently contained
therein, Landlord shall have the right to relocate Tenant's operation to other
premises (the "New Premises") in another part of the Shopping Center in
accordance with the following provisions: the New Premises shall be
substantially the same in size and configuration as the Premises described in
this Lease and, to the extent reasonably possible, shall be located in an area
having, in Landlord's reasonable judgment, comparable pedestrian traffic.
Landlord shall deliver the New Premises to Tenant in a state substantially
similar to the state then existing at the Premises described in this Lease,
exclusive of trade fixtures and equipment, furnishings, decorations and other
items of personal property. The cost of removing Tenant's trade fixtures and
equipment, inventory and items of personal property from the Premises herein
demised and installing them in the New Premises shall be borne by Landlord.
Landlord shall give Tenant at least one hundred twenty (120) days' notice of
Landlord's intention to relocate Tenant's operation to the New Premises. To the
extent determined by Landlord to be practicable, Tenant's Work in the New
Premises shall be prosecuted while Tenant is open for business in the Premises
herein demised and the physical move shall take place during non-business hours,
if reasonably possible, or during such other period as shall be mutually agreed
upon by Landlord and Tenant. Rent (except Percentage Rent) shall abate for any
period during which Tenant's operation shall be closed to the public as a result
of the relocation and there shall be excluded from the computation set forth in
Subsection 3.3A of this Lease the amount of Fixed Rent which would otherwise be
payable for such period. The incidental costs incurred by Tenant as a result of
the relocation, including, without limitation, costs incurred in changing
addresses on stationery, business cards, directories, advertising and other such
items, shall be paid by Landlord, in a sum not to exceed $1,500.00. Landlord
shall not have the right to relocate Tenant's operation more than once during
the Term. If the New Premises are smaller or larger than the Premises described
in this Lease, Fixed Rent shall be adjusted to a sum computed by multiplying the
Fixed Rent specified in Article I, by a fraction, the numerator of which shall
be the total number of square feet of Floor Space in the New Premises and the
denominator of which shall be the total number of square feet of Floor Space in
the Premises described in this Lease. All other charges based upon Floor Space
shall likewise be adjusted proportionately. The parties shall immediately
execute an amendment to this Lease stating the relocation of Tenant to the New
Premises and the modifications hereinabove required.
9-5
49
B. In the event Landlord shall not exercise the aforedescribed right to
relocate Tenant's operation, then provided that as of the date Landlord
substantially completes the addition, expansion and/or reconfiguration, not less
than three (3) nor more than seven (7) years shall remain in the Term, Landlord
shall have the right to require Tenant, at Tenant's sole expense, to construct a
new storefront, in accordance with plans and specifications approved by
Landlord. If Landlord shall elect to exercise said right, Tenant's construction
work shall be completed not later than ninety (90) days following notice from
Landlord that the addition, expansion and/or reconfiguration has been
substantially completed.
C. In the event the New Premises described in Landlord's relocation notice
are unacceptable to Tenant, Tenant shall have the right, as its sole and only
remedy, exerciseable by written notice to Landlord given within thirty (30) days
following receipt of Landlord's relocation notice, to terminate this Lease, such
termination to be effective as of the proposed relocation date set forth in
Landlord's notice. Failure by Tenant to timely exercise such right shall be
deemed a waiver with respect thereto and confirmation that the New Premises are
acceptable to Tenant. Such termination shall be Tenant's sole and only remedy in
the event of Tenant's refusal to accept relocation to the New Premises, it being
understood that should Tenant refuse for any reason to relocate, but fail to
terminate this Lease in accordance with the foregoing, this Lease shall
nevertheless expire on the date set forth in Landlord's relocation notice.
Section 9.11. Short Form Lease. Tenant agrees not to record this Lease.
Either party shall, at the request of the other, execute, acknowledge and
deliver, at any time after the date of this Lease, a memorandum or notice of
lease prepared by the requesting party, but the provisions of this Lease shall
control the rights and obligations of the parties.
Section 9.12. Binding Effect of Lease. The covenants, agreements and
obligations herein contained, except as herein otherwise specifically provided,
shall extend to, bind and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors and permitted assigns. In
particular the provisions of Subsection F of Section 6.2 shall bind the
executors, administrators or other personal representatives of Tenant, if an
individual. or its successors, if Tenant is a corporation or partnership. Each
covenant, agreement, obligation or other provisions herein contained shall be
deemed and construed as a separate and independent covenant of the party bound
by, undertaking or making the same, not dependent on any other provision of this
Lease unless otherwise expressly provided.
Section 9.13. Effect of Unavoidable Delays. The provisions of this Section
shall be applicable if there shall occur, during the Term, or prior to the
commencement thereof, any (i) strike(s), lockout(s) or labor dispute(s); (ii)
inability to obtain labor or materials, or reasonable substitutes therefor; or
(iii) acts of God, governmental restrictions, regulations or controls, enemy or
hostile governmental action, civil commotion, fire or other casualty, or other
conditions similar or dissimilar to those enumerated in this item (iii) beyond
9-6
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the reasonable control of the party obligated to perform. If Landlord or Tenant
shall, as the result of any of the above-described events, fail punctually to
perform any obligation on its part to be performed under this Lease, then such
failure shall be excused and not be a breach of this Lease by the party in
question, but only to the extent occasioned by such event. If any right or
option of either party to take any action under or with respect to this Lease is
conditioned upon the same being exercised within any prescribed period of time
and such named date, then such prescribed period of time and such named date
shall be deemed to be extended or delayed, as the case may be, for a period
equal to the period of the delay occasioned by any above-described event.
Notwithstanding anything herein contained, the provisions of this Section shall
not be applicable to or in determining the date of commencement of or the
continuance of Tenant's obligation to pay Rent or its obligations to pay any
other sums, moneys, costs, charges or expenses required to be paid by Tenant
hereunder.
Section 9.14. No Oral Changes. Neither this Lease nor any provision hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
Section 9.15. Executed Counterparts of Lease. This Lease may be executed
in any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original; and all such counterparts shall together
constitute but one and the same Lease.
Section 9.16. Landlord's Liability.
A. In the event of sale or transfer of all or any portion of the Shopping
Center or any undivided interest therein, or in the event of the making of a
lease of all or substantially all of the Shopping Center, or in the event of a
sale or transfer of the leasehold estate under any such lease, the grantor,
transferor or lessor, as the case may be, shall thereafter be entirely relieved
of all terms, covenants and obligations thereafter to be performed by Landlord
under this Lease to the extent of the interest or portion so sold, transferred
or leased, provided that (i) any amount then due and payable to Tenant or for
which Landlord or the then grantor, transferor or lessor would otherwise then be
liable to pay to Tenant (it being understood that the owner of an undivided
interest in the fee or any such lease shall be liable only for his or its
proportionate share of such amount) shall be paid to Tenant; (ii) the interest
of the grantor, transferor or lessor, as Landlord, in any funds then in the
bands of Landlord or the then grantor, transferor or lessor in which Tenant has
an interest, shall be turned over, subject to such interest, to the then
grantee, transferee or lessee; (iii) notice of such sale, transfer or lease
shall be delivered to Tenant and (iv) the grantee, transferee or lessee shall
assume in writing all of Landlord's obligations under this Lease accruing from
the date of the transaction.
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B. Tenant agrees that it shall look solely to the estate and property of
Landlord in the land and buildings comprising the Shopping Center and the income
therefrom (subject to prior rights of the holder of any mortgage or deed of
trust on any part of the Shopping Center) for the collection of any judgment (or
other judicial process) requiring the payment of money by Landlord in the event
of any default or breach by Landlord with respect to any of the terms, covenants
and conditions of this Lease to be observed or performed by Landlord; and no
other assets of Landlord, its members or shareholders shall be subject to levy,
execution or other procedures for the satisfaction of Tenant's remedies.
C. Corporate Property Investors is the designation of the Trustees under a
Declaration of Trust, as amended and restated, on file with the Secretary of the
Commonwealth of Massachusetts, and neither the shareholders nor the Trustees,
officers, employees or agents of the Trust created thereby, nor any of their
personal assets, shall be liable hereunder and, subject to Subsection 9.16B
above, all persons dealing with the Trust shall look solely to the Trust estate
for the payment of any claims hereunder or for the performance hereof.
Section 9.17. Managing Agent. Landlord has advised Tenant that it has
appointed Pembrook Management, Inc. as managing agent of the Shopping Center
(said managing agent and any successor or substitute managing agent is
hereinafter referred to as Managing Agent). Tenant shall, until otherwise
notified by Landlord, direct all payments of Rent required to be made pursuant
to this Lease to the Managing Agent payable to the Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this Lease
as of the day and year first above written.
BELLWETHER PROPERTIES OF MASSACHUSETTS, LIMITED PARTNERSHIP
By: CPI - Burlington Corporation, its
General Partner
By: /s/ [ILLEGIBLE] AUG 27 1997
-------------------------------
Senior Vice President
THE LIMITED STORES, INC.
By: /s/ George Sappenfield
-------------------------------
George Sappenfield
Vice President Real Estate
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(Tenant, if a corporation)
STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN )
On this 8th day of August, 1997, before me personally came George Sappenfield,
to me known, who being by me duly sworn, did depose and say that George
Sappenfield; that he is the Vice-President-Real Estate of The Limited Stores,
Inc. the corporation described in and which executed the foregoing instrument;
by order of the Board of Directors of the said corporation he signed his name
thereto,
[SEAL] /s/ Mary C. Toomey
---------------------------------------
Notary Public
MARY C TOOMEY
NOTARY PUBLIC, STATE OF OHIO
MY COMMISSION EXPIRES MAY 21, 2002
(Tenant, if an individual or partnership)
STATE OF )
COUNTY OF ) ss.:
)
On this day of , 19 , before me personally came to me known
to be the individual described in and who executed the foregoing instrument and
acknowledged that (s)he executed the same.
---------------------------------------
Notary Public
9-9
53
RIDERS TO LEASE AGREEMENT dated AUG 27 1997, by and between BELLWETHER
PROPERTIES OF MASSACHUSETTS, LIMITED PARTNERSHIP as Landlord, and THE LIMITED
STORES, INC., d/b/a "The Limited", as Tenant, for Store No. 1101 & 1102 at
Burlington Ma1l, Burlington, MA
- --------------------------------------------------------------------------------
In the event of any inconsistences between this Rider and the printed form
of this Lease, the Riders shall be deemed to control.
Rider #1 - amending Recital
Tenant's Work Period shall commence upon receipt of written notice from
Landlord granting Tenant possession of the Premises; however, Tenant shall not
be required to accept possession prior to August 11, 1997.
Rider #2 - amending Article 1 - Size of Premises
Landlord and Tenant acknowledge that the Fixed Rent set forth on page 1-1
and all Additional Rent has been calculated assuming that the Premises shall
consist of 5,250 square feet of Floor Space. As soon as practicable after the
Commencement Date, the parties shall cause the Premises to be measured and the
Floor Space of the Premises to be determined in accordance with the definition
thereof set forth in Article 1. In the event the Floor Space of the Premises
varies from 5,250 square feet, the Fixed Rent shall be adjusted on the basis of
$45.00 per square foot per year for each of the first (1st) sixty (60) full
months plus the initial partial month, if any, at the beginning of the Term; and
$50.00 per square foot per year for the remainder of the Term. The Merchants'
Association Dues set forth on page 1-1, the payment pursuant to Rider #44 E and
all Additional Rent based on the Size of the Premises shall also be adjusted to
reflect such variance. Landlord and Tenant shall execute, acknowledge and
deliver a supplemental agreement specifying the adjusted annual Fixed Rent,
Merchants' Association Dues, and payment pursuant to Rider #44 E.
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54
Rider #3 - amending Article 1 - Term
Notwithstanding anything to the contrary contained in this Lease, if the
Term of this Lease is scheduled to end on a day other than the 31st of January,
the Term of this Lease is hereby automatically extended from such termination to
the following January 31st.
Rider #4 - amending Article 1 - Lease Year
(A) Delete the definition of Lease Year in its entirety and insert the
following in place thereof:
"For the purposes of Percentage Rent only, the period of twelve (12)
consecutive months from January 1 to December 31 of each year during the Term.
If the date Tenant opens for business does not coincide with the beginning of a
Lease Year, then Percentage Rent for that portion of a Lease Year from the date
Tenant opens for business to the December 31 next ensuing (the "initial partial
Lease Year") shall be calculated as follows: The aggregate Gross Sales from the
date Tenant opens for business to the expiration of the three hundred and
sixty-fifth (365th) day thereafter shall be determined and then multiplied by a
fraction, the numerator of which is the number of days in the initial partial
Lease Year, and the denominator of which is 365. The product of said
multiplication shall be deemed Tenant's Gross Sales for the initial partial
Lease Year, and Tenant shall pay for such initial partial Lease Year the amount
by which five (5%) percent of the Gross Sales attributed to such period shall
exceed the Fixed Rent payable for such period. If the expiration date of the
Term does not coincide with the end of a Lease Year, then Percentage Rent for
that portion of a Lease Year from the January 1st immediately preceding the
expiration of the Term to the expiration date of the Term (the "final partial
Lease Year") shall be the amount by which five (5%) percent of the Gross Sales
for the final partial Lease Year shall exceed the Fixed Rent payable for such
period. The foregoing notwithstanding, the parties understand that the Tern of
this Lease shall be measured from the Commencement Date and each twelve (12)
month anniversary thereof."
(B) Delete each occurrence of "January 1" and insert "February 1".
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(C) Delete each occurrence of "December 31" and insert "January 31".
Rider #5 - amending Article 1 - Shopping Center
Line 6, delete "or related".
Rider #6 - amending Section 2.1
(A) Provided that the area thereof does not count for purposes of
computing floor area ratios with respect to any Governmental Requirements or
automobile parking requirements with respect to any Governmental Requirements or
under any agreement with a Department Store, Tenant has the right, subject to
Landlord's approval of plans and specifications (not to be unreasonably
withheld) to install, use and maintain a double-decked stock grid system in the
stock area of the Premises; such system shall not be construed for any purpose
as a mezzanine or additional leased or leasable area.
(B) Page 2-1, line 1, delete "twentieth (20th)" and insert "thirtieth
(30th) ".
(C) Page 2-1, line 18, delete "design" and substitute the following in
place thereof: "the installation of Tenant's Work".
(D) As part of Tenant's Work, Tenant shall perform the work required to
integrate the two (2) portions of the Premises in accordance with Tenant's plans
to be approved by Landlord.
(E) (i) All construction, improvements, additions, property and fixtures
required by Tenant to occupy the Premises, except for Tenant's point-of-sale
equipment, security systems, free-standing display racks and goods held for sale
to the public (the "Leasehold Improvements"), shall at all times be the sole
property of Landlord, and Tenant shall have absolutely no ownership interest in
the Leasehold Improvements. Any funds designated in this Lease as a construction
contribution, either by way of a cash payment, Rent reduction, Rent credit, Rent
abatement or the like, shall be paid or credited by Landlord to Tenant as set
forth in this Lease and shall be used exclusively toward the design and
construction of the Leasehold Improvements located in the Premises. It is the
intention of Landlord and Tenant that the Leasehold Improvements shall
constitute
-3-
56
"leasehold improvements" within the meaning of Section 168(i) (8) of the
Internal Revenue Code of 1986, as amended.
(ii) It is understood and agreed that Landlord has, pursuant to other
provisions of this Lease, certain rights to approve plans and specifications for
the initial installation of the Leasehold Improvements. Landlord acknowledges
and agrees that Landlord's approval of the plans and specifications indicates
that the Leasehold Improvements, upon installation in accordance with the
approved plans and specifications, are acceptable to Landlord.
(iii) Any Rent Abatement, Rent reduction, Rent credit or the like,
provided by Landlord to Tenant hereunder, has been provided by Landlord to
Tenant in respect of a construction contribution and shall be used by Tenant
exclusively toward the design and construction of Leasehold Improvements, as
that term is defined above.
Rider #7 - amending Section 2.2
(A) Landlord agrees to give Tenant prior written notice of any rules or
regulations with respect to the performance of Tenant's Work.
(B) Page 2-1, lines 28-29, after the words "shall not" insert the word
"materially".
(C) Page 2-1, line 37, after the first word "Premises" insert "subject to
the waiver of subrogation elsewhere set forth herein except in the case of
Landlord's negligence, including that of its agents and employees."
(D) Page 2-2, lines 1-2, delete "to be delivered not later than the end of
Tenant's Work Period.
Rider #8 - amending Section 2.4
(A) The term "trade fixtures" as used in this Lease shall include but not
be limited to, removable decorations, mirrors, decorative hardware and
decorative lighting fixtures, merchandise, signs and personal property
(including, but not limited to, counters, shelving and showcases).
-4-
57
(B) Page 2-2, line 19, after "shall" insert "remain Tenant's property but
may not be removed and upon termination of this Lease".
Rider #9 - amending Section 2.5
Page 2-2, line 30, after "within" insert "thirty (30) days after".
Rider #10 - amending Section 3.1
Page 3-1, line 7 after the word "designate" insert the following: "thirty
(30) days in advance".
Rider #11 - amending Section 3.2
It is understood that the automatic Ten Percent (10%) increase of Fixed
Rent set forth in this Section 3.2 shall become effective on the first day of
the 13th month following the opening date of such additional Department Store.
Rider #12 - amending Section 3.3 B
(A) The following additional items shall be deleted from Gross Sales:
(i) finance or service or layaway charges if separately stated but
not credit card fees or discounts which shall be included;
(ii) insurance proceeds and bulk sales not in ordinary course of
business;
(iii) sales of fixtures, equipment, furnishings and similar property
not in the ordinary course of Tenant's business and provided same are not part
of Tenant's inventory;
(iv) sales from vending machines which are in non-sales areas and
are intended for use of Tenant's employees only, however, it is understood that
Tenant's right to install vending machines shall be governed solely as provided
in Article 6.
(B) Page 3-1, lines 29-30, delete "(including finance or service charges
thereon)".
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58
(C) Page 3-2, line 2, delete "Provided that Tenant keeps proper evidence
thereof".
(D) Page 3-2, line 3, before "imposed" insert or "or value added tax".
(E) Page 3-2, lines 14 and 15, delete "(vi) the amount of any discount on
sales to employees of the Premises not exceeding two (2%) percent of Gross Sales
per Lease Year" and insert "(vi) sales to employees to the extent that such
Sales do not exceed 4% of Gross Sales per Lease Year".
(F) It is understood that Tenant's records shall contain data to support
exclusions from Gross Sales.
Rider #13 - amending Section 3.3 C
(A) Provided the Tenant in possession is the Tenant named on the Recital
Page or any of its Affiliates, this Section is deleted in its entirety and the
following inserted in place thereof:
"C. Tenant shall utilize, and cause to be utilized, cash registers
equipped with sealed continuous totals or such other devices for recording sales
as Landlord shall approve to record all sales, and Tenant shall keep at it
principal office in the continental United States and, make available at such
office for at least twenty-four (24) months after expiration of each Lease Year
full, true and accurate books of account and records conforming to generally
accepted accounting principles showing all of the Gross Sales transacted at, in,
on, about or from the Premises for such Lease Year, including all tax reports
and returns, sales check, sales books, computer tapes and printouts and any
other records normally maintained by Tenant and other supporting data. Landlord
shall have the right, from time to time, to make test audits of Gross Sales.
Within twenty (20) days after the end of each calendar month, or portion
thereof, Tenant shall furnish to Landlord a statement signed and verified by
Tenant (or by an authorized employee if Tenant be a corporation) of the Gross
Sales transacted during such month or portion thereof; and within sixty (60)
days after the end of each Lease Year and within sixty (60) days after the end
of the Lease Term, Tenant shall furnish to Landlord a statement, hereinafter
called the annual statement, certified to Landlord by an independent certified
public accountant, of Gross Sales
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59
transacted during the preceding Lease Year included in the Term. The
certification by said certified public accountant shall expressly state that the
Gross Sales shown on said statement conform with and are computed in compliance
with the definition thereof contained in Section 3.3 B hereof. In the event the
Tenant in possession is the Tenant named on Page 1 or an Affiliate of the
Guarantor (if any), the annual statement of Gross Sales may be certified by a
financial officer of the Tenant, however, it is agreed that in the event Gross
Sales for any Lease Year are misstated by more than 5% then Gross Sales shall
thereafter be certified by an independent certified public accountant Landlord
shall have the right, from time to time, by its accountants or representatives,
to audit Tenant's Gross Sales and, in connection with such audits, to examine
all of Tenant's records (including tax returns, an actual inventory of Tenant's
stock in trade and all supporting data and any other records from which Gross
Sales may be tested or determined) of Gross Sales disclosed in any statement
given to Landlord by Tenant and Tenant shall make all such records readily
available at Tenant's main office, for such examination. If any such audit
discloses that the Gross Sales transacted by Tenant exceed those reported,
Tenant shall forthwith pay to Landlord such additional Percentage Rent as may be
so shown to be payable and, if the Gross Sales exceed the Gross Sales reported
by Tenant by more than three percent (3%), or if Tenant's records or systems do
not comply with the requirements of this Section, Tenant shall also then pay the
reasonable cost of such audit and examination, including travel, food and
lodging, and related expenses of Landlord's auditors, in the event the audit or
any part thereof is conducted more than fifty (50) miles from the Shopping
Center. In the event Tenant has understated Gross Sales by eight percent (8%) or
more Landlord may, in addition to any other remedies, cancel and terminate this
Lease but Tenant shall remain liable hereunder as set forth in Article 8. Any
information obtained by Landlord pursuant to the provisions of this Section
shall be treated as confidential, except in any litigation or arbitration
proceedings between the parties and, except further, that Landlord may disclose
such' information to prospective buyers, to prospective or existing lenders, in
any registration statement filed with the Securities and Exchange Commission or
other similar body or in compliance with subpoenas and judicial orders. In no
event shall this Section be deemed to limit Landlord's rights of pre-trial
discovery and disclosure in any action or proceeding."
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(B) Landlord hereby approves the Tenant's use of a point of sale data
system at the Premises.
(C) It is understood that Landlord's audit requests and audits shall be at
reasonable times during business hours and upon ten (10) days prior written
notice to Tenant.
(D) It is understood that Landlord shall only be permitted to review
non-consolidated tax returns or other records and in no event shall Landlord be
permitted to audit records of Tenant's other stores, however, it is understood
that this provision is not intended to limit Landlord's rights of discovery and
inspection in any litigation which may ensue between Landlord and Tenant. Tenant
shall keep separate books and records of Gross Sales for the Premises.
(E) It is understood that audits shall take place at Tenant's corporate
headquarters provided they are located within the continental United States.
(F) Any overpayment of Percentage Rent disclosed by an audit shall be
promptly refunded to Tenant.
Rider #14 - amending Section 3.3 D
(A) Page 3-3, line 35, after "If" insert "Tenant's time to submit has
expired and".
(B) Page 3-3, lines 38-39, delete "(or, if...by Landlord)";
Rider #l5 - amending Section 3.3 E
Delete the entire Section 3.3 E and substitute the following:
"Percentage Rent for each Lease Year shall become due and payable on the
first to occur of (i) sixty (60) days after the last day of each Lease Year, or
(ii) on the 20th day of the month immediately following the month during which
Tenant has attained Gross Sales for the then current Lease Year, in an amount
sufficient to entitle Landlord to the payment by Tenant of Percentage Rent in
accordance with the formula set forth in Section 3.3 A; thereafter, for each
succeeding month remaining in the then current Lease Year, Tenant shall pay
Percentage Rent simultaneously with the submission of each monthly statement of
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Gross Sales, on all additional Gross Sales during the said Lease Year. Upon the
receipt by Landlord of the certified annual statement of Gross Sales to be
furnished as hereinabove provided, there shall be an adjustment between Landlord
and Tenant with payment to or repayment by Landlord, as the case may be, to the
end that Landlord shall receive the entire amount of Percentage Rent payable
under this Lease for the preceding Lease Year and no more. Gross Sales of any
Lease Year and Percentage Rent due thereon shall have no bearing on or
connection with Gross Sales of any other Lease Year."
Rider #16 - amending Section 3.4 A
(A) Landlord shall, from time to time, when requested by Tenant by written
notice, provide Tenant within thirty (30) days after the request for said
notice, a copy of the most recent paid tax bill, however, submission of said tax
bill shall not be a condition precedent to Tenant's obligation to make the
payments required under this Section 3.4.
(E) Landlord agrees that Landlord's billing for Tax Rent under this
Section shall show in reasonable detail the manner of computation of Tenant's
share. If and when requested, Landlord shall provide copies of the tax bills
upon which the taxes are based.
Rider #17 - amending Section 3.4 C
Tenant's obligation hereunder shall not include penalties imposed for late
payment of any real estate tax or assessment levied.
Rider #18 - amending Section 3.4 D
Page 3-5, line 36, delete the word "conclusive".
Rider #19 - amending Section 3.5 A
(A) Page 3-6, line 20, delete "seventy (70%)" and insert "seventy-five
(75%)".
(B) Landlord's estimate of monthly Common Area Rent shall be reasonable.
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62
Rider #20 - amending Section 3.5 B
(A) Tenant shall have the right, after reasonable notice to inspect, at
Landlord's principal office, Landlord's records with respect to Common Area
Operating Costs.
(B) Any fees or charges collected for parking in the Shopping Center shall
be applied toward the reduction of the expenses of operating and maintaining the
Common Areas prior to the computation of Tenant's pro rata share of such
expenses to the extent such charges are actually received by Landlord.
(C) Common Area Operating Costs shall not include the cost of construction
of new improvements in or to the Shopping Center.
Rider #21 - amending Section 3.5 C
If Landlord elects to self-insure, Landlord shall at its sole cost and
expense be responsible for the repair or restoration of any damage caused by a
hazard which would be covered by an insurance policy of the type against which
Landlord is self-insuring to the same extent as if Landlord actually carried
said insurance.
Rider #22 - amending Section 3.5 D
Page 3-8, at the beginning of Section 3.5 D, insert "Within a reasonable
time".
Rider #23 - amending Section 3.6
Page 3-8, line 22, delete "one hundred twenty (120)" and insert "one
hundred eighty (180)".
Rider #24 - amending Section 3.8
(A) Page 3-8, lines 33-34, delete "retroactive to the original due date."
(B) Page 3-8, lines 35-36, delete "four (4%) percent more than the prime
interest rate of Citibank N.A. located in New York, New York" and substitute "at
the rate of one (1%) percent per month."
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Rider #25 - amending Section 3.9
At the beginning of this Section add "Subject to the provisions of Section
9.11".
Rider #26 - amending Section 4.1 B
(A) Any cart located in front of the Premises selling food products shall
only be allowed to sell those food products which are wrapped and intended for
consumption outside of the Shopping Center.
(B) Page 4-1, line 40, delete beginning with "Tenant shall..." through the
end of the Section.
Rider #27 - amending Section 4.1 C
The restriction on employee parking shall only apply to employees while
they are working in the Premises.
Rider #28 - amending Section 4.1 D
All rules and regulations referred to or set forth in this Lease or
otherwise imposed by Landlord shall be nondiscriminatory, uniformly applied to
all retail tenants, and not conflict with any of the provisions of this Lease.
All such rules and regulations which are not set forth in this Lease shall not
become effective until Tenant receives written notice thereof from Landlord.
Rider #29 - adding Section 4.2
Maintenance of Common Areas. Landlord agrees to keep or cause the Common
Areas and the Shopping Center to be maintained in a condition comparable to
other similar properties in the locale. It is understood that Landlord shall not
be responsible under this provision for any failure by any tenant or occupant of
the Shopping Center to maintain its property (including any part thereof which
is a Common Area) in any particular manner.
Rider #30 - amending Section 5.1
(A) Notwithstanding anything contained in this Lease, Landlord shall not
be relieved of its obligation to make repairs or its liability for failure to do
so, or Tenant's failure to
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provide notice of the need of repair when Tenant does not have notice or actual
knowledge of the need and Landlord has actual knowledge of such a need.
(B) Page 5-1, line 11, after "Tenant" insert "except to the extent
covered or required to be covered by Landlord's casualty insurance".
(C) Page 5-1, line 26, delete "substantial and".
Rider #31 - amending Section 5.2
Delete this Section in its entirety and insert the following in place
thereof:
"Landlord covenants that Tenant, on paying the Rent and performing
Tenant's obligation in this Lease, shall peacefully and quietly have, hold and
enjoy the Premises and the appurtenances throughout the Term without hindrance,
ejection or molestation by any person subject to the other terms and provisions
of this Lease".
Rider #32 - addition of Section 5.3
Landlord shall maintain in effect a policy or policies of insurance
covering that portion of the Shopping Center owned or leased by Landlord, in an
amount not less than eighty (80%) percent of full replacement cost (exclusive of
the cost of excavations, foundations and footings) from time to time during the
Lease Term or the amount of such insurance which Landlord's mortgage lender may
require Landlord to maintain, whichever is the greater, providing protection
against any peril generally included within the classification "Fire and
Extended Coverage". Landlord's obligation to carry the insurance provided for
herein may be brought within the coverage of a so-called blanket policy or
policies of insurance carried and maintained by Landlord, provided that the
coverage afforded will not be reduced or diminished by reason of the use of such
blanket policy of insurance.
Rider #33 - amending Section 6.1 A
(A) Page 6-1, line 6, after "Name" insert "in the Northeastern United
States".
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(B) Page 6-1, line 7, delete "dignified" and insert "professional" and
delete "obtaining".
(C) Page 6-1, line 8, delete "superior" and insert similar".
(D) Page 6-1, line 9, after "Sales" insert "consistent with profitable
operations".
Rider #34 - amending Section 6.1 B
(A) It is understood that Tenant's lights shall only be required to be
kept illuminated from one-half hour before until one-half hour after. Tenant's
required opening and closing.
(B) Tenant shall not be required to remain open on evenings later than
6:00 p.m. unless at least two (2) Department Stores are open on such evening.
Rider #35 - amending Section 6.1 C
Page 6-1, line 31, after "inside" insert "and serving".
Rider #36 - amending Section 6.1 D
(A) Page 6-2, line 5, after "inside" insert "and serving".
(B) Page 6-2, line 14, after "occupancy" insert "which is in violation of
this Lease."
Rider #37 - amending Section 6.1 E
(A) Notwithstanding anything contained in this Lease to the contrary,
there shall be no obligation on the part of Tenant to comply with any of the
laws, directions, rules or regulations referred to which may require structural
alterations, structural changes, structural repairs, and/or structural additions
all of which shall be the obligation of Landlord unless made necessary by
Tenant's Work or the negligence or default of Tenant, or Tenant's manner of use
or occupancy in violation of this Lease, or other act or omission, in which
event, Tenant shall comply at its expense.
(B) Page 6-2, line 24, after "occupancy" insert "which is in violation of
this Lease."
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Rider #38 - amending Section 6.1 F
Page 6-2, lines 41-43 and page 6-3, line 1, delete the words beginning
with "an amount equal ... under the Lease." and insert "the actual cost
incurred by Landlord in constructing said barrier, as evidenced by a separate
invoice rendered to Landlord by its contractor, which amount shall constitute
Additional Rent and shall be payable to Landlord contemporaneously with Tenant's
first payment of Fixed Rent under the Lease."
Rider #39 - amending Section 6.1 G
As to the liability claim covered by Tenant's liability insurance,
Landlord shall (i) notify Tenant of the claim or demand for which indemnity is
sought; (ii) tender to Tenant the defense of such demand or claim; and (iii)
otherwise comply with all of the terms set forth in this Section. With respect
to the indemnity obligations undertaken by Tenant in this Section, Tenant shall,
at its own cost, defend or cause to be defended by any suit, claim or demand
against the Landlord alleging such acts or omission or seeking damages which are
payable under the terms of this Section, even if any of the allegations of such
suit, claim or demand are groundless, false or fraudulent; but the Tenant may
make or cause to be made such investigation and such settlement of any suit,
claim or demand as Tenant or its insurers shall have deemed expedient. Unless
Tenant shall decline to so defend or fail to pay any judgment, whose enforcement
is not stayed, Landlord shall not, except at its own cost, incur any expense in
connection with any claim or demand for which indemnity may be sought hereunder.
The Landlord shall cooperate with the Tenant or its insurer and, upon the
Tenant's request, assist in making settlements in the conduct of suits, and in
enforcing any right of contribution or indemnity against any person or
organization (other than an employee of Landlord) who may be liable to the
Landlord because of acts or omissions with respect to which indemnity is
afforded under this Section. The Landlord shall attend hearings and trials and
assist in securing and giving evidence and obtaining the attendance of
witnesses. In no event shall Landlord be required to incur any cost or expense
in complying with its obligations hereunder, all of which shall be paid by
Tenant. Landlord's failure to comply with this provision shall not release
Tenant from its obligations, however, subject to Section 6.3, Landlord shall be
responsible to Tenant for any damages caused by Landlord's failure to comply.
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To the extant of any payment made hereunder the Tenant or, if applicable,
its insurer, shall be subrogated to all of the Landlord's rights of recovery
therefor, against any person or organization (other than an employee or agent of
the Landlord) and the Landlord shall execute and deliver instruments and papers
and do whatever else is necessary to secure such rights. The Landlord shall do
nothing after loss to prejudice such rights.
Rider #40 - amending 6.1 H
(A) Delete this Section in its entirety and insert the following in place
thereof:
"H. To maintain with responsible companies licensed in the State of
Massachusetts (i) comprehensive general liability insurance against all claims,
demands or actions for injury or death of Person or property to the limit of not
less than $2,500,000 per occurrence and/or in the aggregate, including products
liability and independent contractor's coverage, with broad form endorsement,
arising from, related to, or in any way connected with the conduct and operation
of Tenant's business in the Premises, or caused by actions or omissions to act,
where there is a duty to act, of Tenant, its agents, servants and contractors,
which insurance shall name Landlord, its agents, servants, employees, as
additional insureds; (ii) if there is a boiler or major refrigeration equipment
or pressure object or other similar equipment in the Premises, steam boiler, air
conditioning and machinery insurance written on broad form basis to the limit of
$300,000; (iii) "All-Risk, with extended coverage, vandalism, malicious
mischief, sprinkler leakage and if Premises are in a flood zone flood
endorsements attached as Landlord reasonably may, from time to time, approve or
require, covering all fixtures and equipment, stock in trade, furniture,
furnishings, improvements or betterments installed or made by Tenant in, on or
about Premises to the extent of at least eighty percent (80%)- of their
replacement value, without deduction for depreciation, but in any event in an
amount sufficient to prevent Tenant from becoming a co-insurer under provisions
of applicable policies; (iv) workmen's compensation, disability and such other
similar insurance covering all persons employed in connection with Tenant's Work
and with respect to whom death or bodily injury claims could be asserted against
Tenant, Landlord or the Premises. All of said insurance shall be in form and
with deductibles satisfactory to Landlord and shall provide that it shall not be
subject to cancellation, termination, or change
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except after at least thirty (30) days' prior written notice to Landlord. In the
case of boiler and machinery insurance, the policy or policies shall cover
Landlord as an additional insured and shall provide that losses sustained by
Landlord shall be adjusted by and payable to Landlord or Tenant, as their
interests appear. All policies required pursuant to this Paragraph H or duly
executed duplicates of same, shall be deposited with Landlord not less than ten
(10) days prior to the day Tenant begins Tenant's Work and upon renewals of said
policies not less than fifteen (15) days prior to the expiration of the term of
such coverage. All such policies shall be delivered with satisfactory evidence
of the payment of the premium therefor. Landlord and Tenant mutually agree that
with respect to any loss which is covered by insurance then being carried by
them respectively or required to be carried or self-insuring the party carrying
or self-insured or required to carry such insurance and suffering said loss,
releases the other of and from any and all claims with respect to such loss; and
they further mutually agree that they, if they are self-insuring, and their
respective insurance companies shall have no right of subrogation against the
other on account thereof. it is the intention of the parties that if Tenant is
self-insuring, Tenant shall have no claim against Landlord for damages suffered
which would have been covered by Tenant's insurance but for the right given to
Tenant to self-insure".
(B) In lieu of delivering duplicate policies, Tenant may deliver
certificates of same provided such certificates properly identify the coverages,
the insured parties and the form of applicable policy.
(C) Provided the Tenant is the Tenant named on the Recital Page and has a
net worth of at least $20,000,000.00 it shall have the right to self-insure for
any loss or damage of the type covered by standard "All-Risk" insurance and they
further agree to release and hold Landlord harmless from any liability for any
such loss or damage. Tenant shall at its sole expense, without regard to fault
on the part of any Person, make and perform any repairs or restorations which
are required as a result of a casualty which would be covered by insurance of
the type described in Paragraph 6.1 H (iii).
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Rider #41 - amending Section 6.1 I
Notwithstanding the provisions of this Lease to the contrary, the term
"attorneys' fees" wherever used in this Lease, shall mean only the reasonable
charges for services actually performed and rendered, of independent outside
legal counsel who are not the employees of the party in question.
Rider #42 - amending Section 6.1 J
Page 6-4, line 14, delete "twenty (20)" and insert "thirty (30)".
Rider #43 - amending Section 6.1 K
(A) Page 6-4, line 26, after the words "wear and tear" insert the
following: "repairs which are the obligations of Landlord, takings by eminent
domain".
(B) Tenant shall not be obligated to fill holes and make other
restorations resulting from normal removal of Tenant fixtures.
(C) Page 6-4, line 27, before "property" insert "personal".
(D) Page 6-4, line 38, delete "without" and insert "after reasonable" in
place thereof.
Rider #44 - amending Section 6.1 L
(A) Landlord agrees to require this or a similar provision in
substantially all other leases for retail space at the Shopping Center which are
hereinafter entered into.
(B) The Promotion Fund Charge and the Media Fund Charge shall be subject
to increases from year to year, but in no event shall the Promotion Fund Charge
and the Media Fund Charge be increased in the aggregate by more than fifty cents
($.50) per square feet of Floor Space every twelve months.
(C) Page 6-5, lines 6 and 16, delete "ten (10%) percent" and insert "by
the percentage increase in the Consumer Price Index for Urban Wage Earners and
Clerical Workers, all Items, Series A, 1982-84 equals 100, as published by the
United States Department of Labor (or if not published the most closely
comparable index), over the index in effect on the date of this
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Lease or the first (1st) day of each succeeding twelve-month period."
(D) Page 6-5, line 11, delete "shall participate" and insert "agrees to
cooperate".
(E) Notwithstanding the provision of Section 6.1 L, the requirement that
Tenant participate in four (4) Shopping Center-wide promotions shall be deemed
waived. However, in consideration of waiving said requirement, Tenant agrees to
pay to the Merchant's Association the sum $4,935.00 per annum payable in
quarterly installments, which amounts shall be increased every twelve (12)
months by the percentage increase in the Consumer Price Index for Urban Wage
Earners and Clerical Workers, all Items, Series A, 1982-1984 = 100, as published
by the United States Department of Labor (or if not published the most closely
comparable index) over the index in effect on the date of this Lease or the
first day of each succeeding 12-month period. In the event Tenant fails to pay
such sum at any time during the Term, then the requirements of Section 6.1 L
shall be reinstated as set forth therein.
(F) Subsections (7) and (8) are hereby deleted in their entirety.
Rider #45 - deleting Section 6.1 M
This Section is hereby deleted in its entirety.
Rider #46 - amending Section 6.1 N
It is understood that this paragraph only refers to advertising which
designates the location of the Premises.
Rider #47 - amending Section 6.1 R
(A) Page 6-7, line 34, delete "twenty (20)" and insert "thirty (30)".
(B) Subsections (1), (2), (4) and (5) are hereby deleted.
Rider #48 - amending Section 6.2 A
(A) Page 6-8, lines 26 and 29, delete "officer, director, shareholder,
franchisee or licensee or the like."
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(B) Page 6-8, line 30, after "facility" insert "with the same trade name
as used by Tenant in the Premises".
(C) Page 6-8, line 32, delete "five (5)" and insert "three (3) ".
(D) Page 6-8, lines 34-35, delete "Shopping Center...store" and insert
"building in the Premises is located" and lines 35-36, delete "a point...store"
and insert "the point on the outer perimeter of the building in which Tenant's
other store is located."
(E) The Retail Restriction Limit shall not apply to any existing or future
stores of Tenant, or any Affiliate of Tenant, operating under a different trade
name and having a different merchandise mix.
Rider #49 - amending Section 6.2 C
(A) Page 6-9, line 9, before "approved" insert reasonably".
(B) Page 6-9, line 10, delete "or designated".
(C) Page 6-9, line 14, delete "improper, offensive or" and before "rules"
insert "reasonable".
(D) Page 6-9, line 24, delete the semi-colon after "Premises;" and
substitute a period, and delete the remainder of the sentence which ends on line
27 with the word "public".
(E) Landlord agrees that rules and regulations pursuant to this Section
shall be reasonable and shall be uniform as to retail tenants.
Rider #50 - amending Section 6.2 D
(A) Page 6-9, lines 35-37, delete "(it being .... work)".
(B) This provision shall not be deemed to prohibit professionally prepared
signs similar to those being utilized at the date of this Lease in other "The
Limited" stores.
(C) The $15,000.00 amount referred to in this Section is hereby amended to
$25,000.00
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(D) Delete the last sentence of the paragraph.
Rider #51 - amending Section 6.2 F
(A) In Section 6.2 F, page 6-10, line 26, before "A transfer" insert
"Subject to paragraph (l) below".
(B) In Section 6.2 F (1), page 6-11, line 2, after "exchange" insert
"over-the-counter".
(C) Subparagraph (2) is hereby deleted and the following inserted in place
thereof:
(2) Landlord's consent shall not be required for the assignment of this
Lease or subletting or transfer of stock to or from Affiliates of Tenant; or to
any entity with which or into which the Tenant may consolidate or merge or to a
transferee in connection with a transfer of all or substantially all of the
assets and business of the Tenant, as a going concern and who in any of the
foregoing events shall assume for Landlord's benefit the performance of all of
the terms, conditions and covenants of this Lease; provided, however, that the
merged or consolidated entity or transferee shall have a net worth at least
equal to the net worth of the Tenant, at the time of such consolidation or
merger; and further provided that the assignee or sublessee or transferee,
whether pursuant to consent of the Landlord or by reason of an assignment of the
Lease to a subsidiary or merger or transfer of assets or consolidated
corporation shall, nevertheless, use the Premises under the Trade Name and only
for the purposes stated in the "Permitted Use" clause."
(D) Tenant shall have the right to grant licenses or concessions for the
sale of such merchandise as may be permitted under the terms of this Lease under
the following conditions:
(i) Gross Sales from any such license or concession shall be
included in Gross Sales for the purpose of determining the Percentage Rent
payable by Tenant herein;
(ii) There shall not, at any time, be more than one such licensee or
concessionaire;
(iii) The total space to be occupied by such single licensee or
concessionaire shall not exceed twenty percent (20%) of Tenant's Floor Space;
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(iv) Landlord shall have all of the rights and remedies with respect
to the auditing and verification of Gross Sales of such licensee or
concessionaire as set forth in Article 3 of this Lease and any such license or
concession agreement shall specifically contain such rights;
(v) Gross Sales of the licensee or concessionaire shall be certified
by Tenant as provided in Article 3;
(vi) A duplicate executed copy of any such license or concession
agreement shall be delivered to Landlord within five (5) days after the
execution and delivery thereof; and
(vii) The entire Premises shall, at all times, be operated as a
single unit under Tenant's Trade Name.
(E) In Section 6.2 F (5), page 6-13, line 4, delete "three (3)" and insert
"two (2)".
(F) In Section 6.2 F (7), add the following at the end of the sentence:
"except for a transaction pursuant to subparagraphs (l) and (2)."
Rider #52 - amending Section 6.2 G
Notwithstanding anything to the contrary contained in the Lease, Tenant
shall have the .right to install its own music system and shall not be obligated
to utilize any system provided by Landlord. Tenant shall be responsible for
copyright law compliance and infringements and the indemnity in Section 6.lG
shall apply.
Rider #53 - amending Section 6.2 H
Section 6.2 H is hereby deleted and the following inserted:
"Not to place, install or maintain any graphics or sign upon or outside
the Premises unless it complies with Landlord's sign criteria and is approved by
Landlord pursuant to Subsection P of Section 6.1, nor install any awning,
canopy, aerial, antenna or the like in or on the Premises without Landlord's
prior consent. Without first obtaining Landlord's consent, which consent shall
not be unreasonably withheld, Tenant shall not
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place in the windows or in the front three (3) feet of the Premises any sign,
graphics, decoration, lettering, advertising matter, shade or blind or other
thing of any kind other than neatly lettered signs of reasonable size and
number, placed on the floor or on a display fixture, advertising articles for
sale and the prices thereof. Landlord shall have the right to require the
removal of any sign, graphics, lettering, lights, advertising, etc. which does
not conform to the foregoing, and the cost of removal shall be paid by Tenant".
Rider #54 - amending Section 7.1 B
(A) If as a result of fire, casualty or condemnation all Department Stores
cease opening for business and at least two (2) present or new Department Stores
do not open or reopen for business within one (1) year after the last of all
Department Stores ceased opening or if Landlord does not substantially complete
restoration of the Premises within one (1) year after the casualty, Tenant may,
as Tenant's sole remedy as to Landlord, cancel and terminate this Lease unless
prior to notice of such cancellation at least two (2) Department Stores commence
business or Landlord substantially completes the restoration of the Premises to
the extent required herein.
(B) Landlord's right to terminate hereunder shall be available only
provided Landlord terminates leases as to which Landlord has a right to
terminate, of all other tenants in the Building.
(C) If after a fire or casualty Tenant's store is not damaged but Landlord
elects to cancel and terminate this Lease then Landlord shall pay to Tenant the
unamortized cost of the original permanent leasehold improvements made by Tenant
to the Premises during Tenant's Work Period, exclusive of Tenant's personal
property and trade fixtures, removable decorations, mirrors, decorative
hardware, decorative lighting fixtures, merchandise, signs, counter shelving and
showcases, all of which shall be removed by Tenant. Tenant shall, within
thirty'(30) days after Tenant opens for business in the Premises, deliver to
Landlord an affidavit signed by a financial officer of Tenant certifying in
detail and by category the cost of Tenant's leasehold improvements as defined
above. Tenant shall, if requested, submit to Landlord copies of contracts,
agreements, invoices, purchase orders, cancelled checks and such other
information upon which the affidavit is based as Landlord may
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require. Landlord shall have the right to dispute Tenant's cost figures. The
failure of Tenant to timely submit the foregoing affidavit and information shall
constitute a waiver by Tenant of its rights under this paragraph C. The
unamortized value shall be the unamortized cost of the permanent leasehold
improvements as shown on Tenant's federal income tax returns.
(D) Page 7-1, line 11, before "damaged" insert "substantially".
(E) Page 7-1, line 12, after "insurance" insert "required hereunder".
(F) Page 7-1, line 16, delete "two (2)" and insert "three (3)".
(G) Page 7-1, line 17, delete "ninety (90)" and insert "sixty (60)".
(H) Page 7-1, lines 18-19, delete "and upon... (60) days after" and insert
"such termination to be effective on the 30th day following the date of"
Rider #55 - amending Section 7.2 C
If any part of the Shopping Center (including without limitation, the
Common Areas) is taken by condemnation occurring during the last three (3) years
of the Lease Term, so as to render the Shopping Center or remaining portion
thereof unsuitable for use as a regional retail shopping center, Landlord or
Tenant shall have the right to terminate this Lease upon notice in writing to
the other within one-hundred twenty (120) days after possession is taken by the
condemning authority. This Lease shall terminate as of the day of the aforesaid
notice or the day possession is taken by the condemning authority, whichever is
later and Tenant shall pay Rent and perform all of its other obligations under
this Lease up to that date with a proportionate refund by Landlord of any Rent
as may have been paid in advance for a period subsequent to the date of
termination.
If by reason of a taking by way of eminent domain of the Premises or the
building of which the Premises are a part or of other parts of the Shopping
Center, the Premises is rendered substantially unusable for Tenant's use by
reason of diminished
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access, Tenant may cease its operations until reasonable access is available or
during such period until accessibility is restored, the payment of Fixed Rent
hereunder shall abate.
Rider #56 - amending Section 7.2 D
Insert the following at the end of this Section: "However, if as a result
of the insufficiency of the award Landlord does not make restoration to
substantially the pre-existing condition, Tenant may cancel this Lease."
Rider #57 - amending Section 8.1 A
(A) Page 8-1, line 3, delete "or Guarantor".
(B) Page 8-1, line 4, delete "or Guarantor".
(C) Page 8-1, line 7, delete "or Guarantor's".
(D) Page 8-1, line 10, delete "sixty (60)" and insert "ninety (90)".
Rider #58 - amending Section 8.2 A
(A) Page 8-2, line 3, after the words "Tenant's property" insert "in the
Premises and the same shall not have been discharged within one hundred twenty
(120) days."
(B) Page 8-2, lines 4-6, delete "or if Tenant shall default with respect
to any other lease between Landlord (or any Affiliate of Landlord) and Tenant
(or any Affiliate of Tenant)."
(C) Page 8-2, line 12, delete the word "default" and insert "have
defaulted and Landlord shall have served written notice thereof."
(D) Page 8-2, line 14, delete "three (3)" and substitute "four (4)".
(E) Page 8-2, line 15, delete "four (4)" and substitute "six (6)".
(F) Page 8-2, line 19, delete "five (S)" and insert "ten (10)".
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(G) Page 8-2, line 39, delete "the maximum... or at Landlord' s option".
Rider #59 - amending Section 8.4
(A) Page 8-4, line 2, after "any" insert "noncompulsory".
(B) Page 8-4, line 4, after "Landlord" insert "or asserting defenses".
Rider #60 - amending Section 8.6
In the event Landlord fails to observe its repair obligations pursuant to
Section 5.1, Tenant may make such repairs and hold Landlord accountable for the
cost thereof. Landlord's failure to make such repairs shall not be deemed an
acknowledgment by Landlord that such repairs were Landlord's responsibility and
Tenant shall not be permitted to withhold, deduct or offset any rents coming
due under this Lease on account of such repairs made by Tenant.
Rider #61 - amending Section 8.7
Section 8.7 is hereby deleted and the following inserted in place thereof:
"Effect of Waivers of Default. No consent or waiver, express or implied,
by either party to or of any breach of any covenants, condition or duty of the
other shall be construed as a consent or waiver to or of any other breach of the
same or any other covenant, condition or duty of the breaching party unless in
writing signed by the consenting or waiving party."
Rider #62 - deleting Section 8.8
This Section 8.8 is hereby deleted in its entirety.
Rider #63 - addition of Section 8.9
Landlord's Default. In the event Landlord shall neglect or fail to perform
or observe any of the provisions, covenants or conditions contained in this
Lease on its part to be performed or observed (a) within the ten (lO) days after
written notice in the case of default of the payment of money, and (b) in all
other cases within thirty (30) days after written notice of default,
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unless more than thirty (30) days shall be required because of the nature of the
default, in which case if Landlord shall fail to proceed diligently to cure such
default after notice, Landlord shall, subject to limitations of liability
contained in Article 9, be responsible to Tenant for Landlord's breach, however,
in no event may Tenant deduct or offset or reduce any amounts due hereunder
against any Rent due Landlord hereunder unless and until Tenant obtains, in a
court of competent jurisdiction in the State where the Premises are located, a
final, unstayed and unappealable judgment.
Rider #64 - amending Section 9.1
(A) Page 9-1, line 4, before "address" insert "box number" and delete
"herein" and insert "on the Recital Page" in place thereof.
(B) Notices shall be deemed served when received unless the failure to
complete delivery is as a result of the failure of the party receiving the
notice to claim said notice or to make an agent available for the receipt of
said notice.
Rider #65 - amending Section 9.2
This Section is hereby deleted and the following inserted in place
thereof: "Brokerage". Landlord and Tenant warrant that they have had no dealings
with any broker or agent in connection with this Lease and each party covenants
to pay, hold harmless and indemnify the other from and against any and all
costs, expenses or liability for any compensation, commissions and charges
claimed by any broker or agent with respect to this Lease or the negotiation
thereof with whom it had dealings."
Rider #66 - amending Section 9.3
Page 9-1, line 17, delete "twenty (20)" and insert "thirty (30)".
Rider #67 - amending Section 9.6
Page 9-2, line 15 after the word "negligence" insert the words "or breach
of this Lease", and after "Landlord" insert "its agents or employees."
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Rider #68 - amending Section 9.7
(A) Page 9-2, line 34, after the word "and " insert "subject to the
provisions of Section 5.1".
(B) Page 9-2, line 37, delete "substantial and".
(C) Page 9-3, line 5, the reference to "one hundred eighty (180) days" is
hereby amended to "ninety (90) days".
Rider #69 - amending Section 9.8
(A) This Lease shall only be subordinate to first mortgages made to an
institutional lender, as such term is hereafter defined.
(B) As used herein, the term "institutional lenders" shall mean a mortgage
made to a commercial bank, savings bank, savings and loan association, trust
company, insurance company, real estate investment trust, pension fund,
charitable, educational or eleemosynary institution.
(C) Page 9-3, line 35, the reference to "twenty (20)" is hereby amended to
"thirty (30)".
Rider #70 - amending Section 9.9
(A) Section 9.9 is hereby deleted and the following inserted:
"Section 9.9. Construction on Adjacent Premises or Buildings. If any
construction, excavation or other building operation shall be about to be made
or shall be made on any premises adjoining or above or below the Premises or on
any other portion of the Building or the Shopping Center, Tenant shall permit
Landlord, or the adjoining owner, and their respective agents, employees,
licensees and contractors, to enter the Premises and to strengthen, add to or
shore the foundations, walls, columns or supporting members thereof, and to
erect scaffolding and/or protective barricades around and about the Premises
(but not so at to preclude entry thereto) and to do any act or thing necessary
for the safety or preservation of the Premises. Tenant's obligations under this
Lease shall not be affected by any of the foregoing or any such construction or
excavation work, shoring-up, scaffolding or barricading.
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Landlord shall not be liable in any such case for any inconvenience,
disturbance, loss of business or any other annoyance arising from any such
construction, excavation, shoring-up, scaffolding or barricades, provided
Landlord will not cause any material inconvenience, annoyance and disturbance to
Tenant. It is understood by Tenant that shopping centers are at times expanded'
or reconfigured by the addition of new or reconfigured buildings, improvements
or structures (including multi-level, decked or subsurface parking structures)
and if the foregoing occurs, Landlord shall have the right of access to enter
upon the Premises to perform construction work and shall use its reasonable
efforts to complete all construction in the Premises as promptly as possible
(considering the nature and extent of the construction and subject to prudent
construction practices). Landlord shall have the right to require Tenant to
temporarily curtail its business or to close the Premises if necessary in
connection with the construction work. Accordingly, (i) if Landlord requires
Tenant to temporarily suspend business or to close the Premises because of any
such changes or (ii) if Tenant's use and occupancy of the Premises or Tenant's
access to the covered mall in front of the Premises is materially, adversely and
unreasonably interfered with, and Tenant temporarily closes for business, Tenant
shall receive an abatement of Rent on a per diem basis for the number of days
for which Tenant is required to close. Notwithstanding the foregoing, Tenant
shall have no right to seek damages or to cancel and terminate this Lease
because of the proposed expansion nor shall Tenant have the right to restrict,
inhibit or prohibit said expansion."
(B) Unless the reason for the entry is to satisfy any emergency condition
Landlord shall give prior notice to Tenant of its intention to enter the
Premises pursuant to this Section. Such notice may be given to the employee in
charge of the Premises, either orally or in writing. Tenant shall be responsible
for any damages which may arise by reason of failure to perform access to the.
Premises.
(C) Landlord shall give Tenant reasonable prior notice before entering the
Premises to perform construction work.
(D) Landlord shall not require Tenant to close the Premises between
November 1 and December 31 of any given Lease Year during the Term of this
Lease.
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(E) If the square footage of the Premises is reduced as a result of the
exercise by Landlord of its rights under this Section, the Fixed Rent and
Additional Rent shall be proportionately reduced in accordance with the
reduction in square footage.
(F) Landlord shall at its sole cost and expense restore the Premises to
its original condition, prior to Landlord's exercise of its rights hereunder.
Rider #71 - amending Section 9.10
This Section is hereunder deleted in its entirety and the following shall
be substituted in lieu thereof:
Landlord shall have the right to relocate Tenant's operation to other
premises (the "New Premises") in another part of the Shopping Center in
accordance with the following:
(A) Notwithstanding the foregoing to the contrary or any other provision
herein to the contrary, the Landlord shall have the right to relocate the
Tenant's operation to another premises only in the event of an expansion or
reconfiguration of the Shopping Center which substantially affects the
surrounding areas of the Premises or the Premises.
(B) The New Premises shall be substantially the same in size, approximate
frontage on the enclosed mall, and configuration as the Premises described in
this Lease. In addition, the New Premises shall be located on a main enclosed
mall of the Shopping Center in an area comparable in location to the present
location on the enclosed mall of the original Premises described herein. It is
understood that unless the Premises are presently in such a location, the New
Premises shall not be in an area within fifty (50) lineal feet (50') of a
Department Store or located in a mall area without a Department Store as an
anchor.
(C) Landlord shall deliver the New Premises to Tenant and Tenant shall
construct therein a new store substantially similar to the stores Tenant ii then
constructing in other similar enclosed mall locations. Upon completion of
Tenant's construction, Landlord shall reimburse Tenant for the full cost of
Tenant's Work (in an amount not to exceed the original cost of Tenant's
improvements constructed in the original Premises herein
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demised), exclusive of trade fixtures and equipment, furnishings, decorations
and other items of personal property. It shall be a condition precedent to
Tenant's right to receive such sum for the New Premises that Tenant shall', not
later than sixty (60) days following the completion of Tenant's Work, deliver an
affidavit of an officer of Tenant and a certificate of Tenant's architect
accompanied by a list of invoices and expenses specifying the cost of Tenant's
leasehold improvements, which shall thereupon be a basis for the amount to be
paid by Landlord pursuant to this provision.
(D) The cost of moving Tenant's trade fixtures and equipment, inventory
and items of personal property into the New Premises shall be borne by Landlord.
(E) Landlord shall give Tenant at least on hundred eighty (180) days'
prior notice of Landlord's intention to relocate Tenant's operation to the New
Premises.
(F) The physical move shall take place during non-business hours if
reasonably possible or during such other period as shall be mutually agreed upon
by Landlord and Tenant.
(G) Fixed Rent and all other rents and charges payable hereunder shall
abate for any period during which Tenant's operation shall be closed to the
public as a result of the relocation.
(H) Tenant shall not in any event be required to cease its operation
during the months of November or December. In addition, subject to Unavoidable
Delays, Tenant shall not in any event by required to cease its operations in the
Premises herein demised for a period of greater than ninety (90) days prior to
Tenant's opening for business in the New Premises.
(I) The incidental costs, incurred by Tenant as a result of the
relocation, including, without limitation, costs incurred in changing addresses
on stationery, business cards, directories, advertising and other such items,
shall be paid by Landlord,' in a sum not to exceed One Thousand Five Hundred
Dollars ($1,500.00).
(J) Landlord shall not have the right to relocate Tenant's operation more
than once during the Term.
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(K) If the New Premises are smaller or larger than the Premises described
in this Lease, Fixed Rent shall be adjusted to a sum computed by multiplying the
Fixed Rent specified in Article 1, by a fraction, the numerator of which shall
be the total number of square feet of Floor Space in the New Premises and
denominator of which shall be the total number of square feet of Floor Space in
the Premises described in this Lease. In the event a specific annual minimum
sales base for purposes of paying Percentage Rent is set forth herein, then in
the event of an adjustment of Fixed Rent, the annual minimum sales base shall be
proportionately adjusted. All other charged based upon Floor Space shall
likewise be proportionately adjusted. The parties shall immediately execute an
amendment to this Lease stating the relocation of Tenant to the New Premises and
the modifications hereinabove required.
(L) It is understood that Landlord's right to relocate pursuant to this
Section is a significant inducement of Landlord to enter into this Lease and
further, in the event of any dispute arising out of or relating to this Rider,
Tenant shall, nevertheless, be required to vacate and surrender the Premises as
of the date set forth in Landlord's notice reserving, however, the right to seek
damages through arbitration based upon the contention to the effect that
Landlord did not comply with this Rider.
(M) Tenant shall have the right, by notice to Landlord served not later
than ninety (90) days after the service of Landlord's notice. of intention to
relocate to cancel and terminate this Lease as of the date set forth in
Landlord's notice and if Tenant alleges that Landlord has failed to comply with
the provisions herein with regard to whether the New Premises proposed by
Landlord is "comparable" to the location of the Premises herein demised, the
parties hereto agree that Tenant's sole and only remedy shall be to institute
the arbitration proceeding described below alleging failure to comply with the
provisions of this Rider. Failure by Tenant to timely reject the proposed New
Premises shall be deemed an acceptance thereof and a waiver by Tenant of any
right to seek damages or other remedies.
(N) Tenant shall have the right to dispute the comparability of the New
Premises relative to the existing Premises by final and binding arbitration
before a panel of three neutral arbitrators who shall be acknowledged experts in
the
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shopping center industry. Notice of intent to arbitrate shall be given within
the ninety (90) day period following Landlord's notice of its intention to
relocate Tenant and the parties shall prosecute the arbitration proceeding with
diligence and dispatch. The arbitrators shall consider only whether or not the
New Premises is substantially the same in size, approximate frontage on the
enclosed mall, and configuration as the Premises described in this Lease and
whether the New Premises is in an area comparable in location to the Premises
described in this Lease considering visibility, traffic flow, market segment and
such other factors as the arbitrators' customarily use to aid them in making
their decision. The fees and expenses of the American Arbitration Association,
the fees and expenses of conducting the arbitration shall be borne equally by
the parties except that the arbitrators shall have the right as part of their
award to assess all or any part of the above against either of the parties. The
arbitration shall be conducted under rules and regulations of the American
Arbitration Association and the hearings shall take place in the county or city
where the Shopping Center is located.
(0) Despite the existence of any dispute between Landlord and Tenant,
Tenant shall cease operations within the Premises herein demised one-hundred and
eighty (180) days following the initial relocation notification to Tenant and
Landlord may repossess the Premises for its own purposes.
(P) If the arbitration panel by a majority vote decides that Landlord has
not offered Tenant a comparable location of substantially the same size and
character as the Premises described in this Lease, the Tenant shall be entitled
to damages equal to the present value of Tenant's lost pre-tax profits from the
date Tenant was required to cease operations in the Premises until the, end of
the Term of this Lease calculated in the manner described below and discounted
at the interest rate then in effect for 1O year U.S. Treasury Bills. Landlord
agrees that in the event Tenant prevails in such proceeding that Tenant shall be
entitled to the foregoing described damages as agreed final and liquidated
damages. Tenant's lost profits for the remaining Term of this Lease shall be
calculated by taking the average annual pre-tax profits from Tenant's operation
at the Premises for the Tenant's previous three (3) full fiscal years (or if the
period of Tenant's occupancy has not yet continued for three (3) full fiscal
years, then the average annual profits from the Commencement Date to the date of
Landlord's initial relocation notice shall be determined) and multiplying the
average annual
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profit by a fraction the numerator of which shall be the number of months for
which lost profits are to .be paid and the denominator of which shall be twelve
(12). Tenant's profits shall be calculated using the generally accepted
accounting procedures that are consistent with those used in all other stores
operated by Tenant."
Rider #72 - amending Section 9.13
(A) Page 9-7, lines 10-11, delete "or in determining the date of
commencement of or the continuance of".
(B) The following is inserted at the end of this Section or Landlord's
obligation to pay any sums, monies, costs, charges or expenses required to be
paid by Landlord hereunder".
Rider #73 - amending Section 9.16 A
Page 9-7, line 41, delete "accruing from the date of the transaction" and
insert "therefore or thereafter accruing" in place thereof.
Rider #74 - amending Section 9.16 B
Page 9-8, line 4, before "for the collection", insert "and the rents,
issues and profits derived therefrom."
Rider #75 - amending Section 9.17
The address for Landlord's Managing Agent for this Lease: Pembrook
Management, Inc., One Burlington Mall, Burlington, MA 01803.
Rider #76 - amending Exhibit C
(A) Section B(2), lines 7-8, delete "not tore than ten (10%) percent
greater than" and insert "approximately comparable to".
(B) Section B(3), add:
If an interruption or impairment of service is the result of an
occurrence solely within Landlord's control, and there is created a substantial
and material interference with Tenant's ability to conduct its business for more
than three (3)
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consecutive days, Tenant shall be entitled to an abatement of Fixed Rent for
each day after the third (3rd) business day during which the condition
continues.
(C) Section B(4), add:
If the discontinuance of services is due solely to the exercise of
Landlord's discretion, then Landlord shall pay the new hook-up charges.
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EXHIBIT "A"
BURLINGTON MALL
SITE PLAN
[GRAPHIC OMITTED]
88
EXHIBIT "B"
BURLINGTON MALL
LEASE PLAN LOWER LEVEL
[GRAPHIC OMITTED]
89
Exhibit C
Utilities
A. TENANT'S OBLIGATIONS
Tenant shall arrange for the furnishing of all utilities to be used by
Tenant in the Premises and shall pay for all utilities used in the Premises,
including, but not limited to, all heating, ventilating, air conditioning,
water, gas and electricity. Tenant shall, if necessary in connection with
Tenant's Work, provide the necessary mains, feeders, ducts and conduits to bring
water, gas, electricity and condenser water for air conditioning to the
Premises, at a location satisfactory to Landlord; it being understood that
Tenant shall install, at Tenant's expense, all outlets, risers, wiring, piping,
duct work or other means of distribution of such service within the Premises in
accordance with Governmental Requirements and plans and specifications approved
by Landlord. Tenant covenants and agrees that at all times its use of any of
such services shall never exceed the capacity of the mains. feeders, ducts and
conduits bringing the same to the Premises or of the outlets, risers, wiring,
piping, duct work or other means of distribution of such service to or within
the Premises.
B. LANDLORD'S RIGHT TO PROVIDE UTILITIES
1. Landlord may. at its option and its own cost and expense, construct and
operate a system (hereinafter referred to as the Central System) for the
production and/or distribution to the Premises of electricity. gas, heat and
cooling agents o and/or domestic hot and cold water (hereinafter referred to
collectively as Services). In such event. Tenant shall, upon notice from
Landlord, discontinue use of any other means of obtaining those Services.
Landlord shall, at Landlord's expense, perform all work necessary to discontinue
and disconnect Tenant's existing systems for such Services and to install the
central System. Landlord shall be permitted access into the Premises (including
any utility areas) for such purpose.
2. If Landlord shall elect to supply any Services, Tenant shall purchase
such Services as are tendered by Landlord and, upon being billed by Landlord,
shall pay charges therefor (hereinafter referred to as Utility Rent), computed
at rates (including any established minimum charges) which shall not exceed the
rates which would be charged to Tenant for such Services by the public utility
agency or agencies serving the locale in which the Shopping center is located
or, with respect to those services which are not provided by a public utility,
at rates which are not more than ten (10%) percent greater than the average cost
per square foot of providing such services to comparable users in the vicinity
of the Shopping Center. Utility Rent shall be deemed Additional Rent and in the
event Tenant shall fail to pay the Utility Rent due Landlord within ten (10)
days following Landlord's billings, Landlord in addition to any other remedy
available to Landlord, may discontinue furnishing the Premises upon five (5)
days prior written notice; however, no such discontinuation shall be deemed an
eviction or render Landlord liable to Tenant for damages or relieve Tenant of
performance of its obligations hereunder.
3. The Services which Landlord elects to provide or cause to be provided
to the Premises pursuant to this Exhibit C may be furnished by an agent or
contractor of Landlord, and Tenant shall accept the same therefrom to the
exclusion of all other suppliers. Landlord shall not be liable to Tenant in
damages or otherwise if all or any of such Services are interrupted, impaired or
terminated because of failures, repairs, installations or improvements; nor
shall any such interruption, impairment or termination release Tenant from the
performance of any of its obligations hereunder.
4. Provided substitute sources of supply are available, Landlord may, upon
thirty (30) days notice to Tenant, cease to supply any Service, without any
responsibility to Tenant except to connect Tenant's distribution facilities
therefor with another source of supply. Landlord agrees that the charges to
Tenant for the supply of substitute Services, if not provided by a public
utility agency, shall be computed at the rates described' in paragraph 3.2
hereof.