Exhibit 10.107
Lease Agreement for Store - Detroit
INDEX TO LEASE
(I)
Page
ARTICLE I - GRANT AND TERM
Section 1.1 Leased Premises 1
Section 1.2 Term 2
Section 1.3 Opening 2
Section 1.4 Late Opening 2
ARTICLE II - RENT AND DEPOSIT
Section 2.1 Minimum Rent 3
Section 2.2 Percentage Rent 3
Section 2.3 Payments By Tenant 4
Section 2.4 Security Deposit 4
Section 2.5 Late Charge 5
ARTICLE III - PREPARATION OF LEASED PREMISES
Section 3.1 Landlord's Work 5
Section 3.2 Delivery and Possession 5
Section 3.3 Tenant's Work 5
Section 3.4 Alterations by Tenant 6
Section 3.5 Removal by Tenant 7
ARTICLE IV - CONDUCT OF BUSINESS
Section 4.1 Use and Trade Name 7
Section 4.2 Operation of Business 7
Section 4.3 Sign 7
Section 4.4 Tenant's Warranties 8
Section 4.5 Storage and Office Space 8
Section 4.6 Care of Premises 8
Section 4.7 Notice by Tenant 8
Section 4.8 Radius 8
ARTICLE V - COMMON AREA
Section 5.1 Use of Common Area 9
Section 5.2 Common Area Maintenance Expenses 9
ARTICLE VI - FEPAIRS AND MAINTENANCE
Section 6.1 Repairs and Maintenance by Landlord 10
Section 6.2 Repairs and Maintenance by Tenant 10
ARTICLE VII - TAXES
Section 7.1 Tax Liability 11
Section 7.2 Method of Payment 12
ARTICLE VIII - INSURANCE, INDEMNITY AND LIABILITY
Section 8.1 Landlord's Insurance Obligations 12
Section 8.2 Tenant's Insurance Obligations 12
Section 8.3 Mutual Covenant 13
Section 8.4 Covenant to Hold Harmless 13
Section 8.5 Loss and Damage 14
ARTICLE IX - DESTRUCTION OF LEASED PREMISES
Section 9.1 Continuance of Lease 14
Section 9.2 Reconstruction 14
ARTICLE X - CONDEMNATION
Section 10.1 Eminent Domain 15
Section 10.2 Rent Apportionment 15
Section 10.3 Temporary Taking 15
ARTICLE Xl - ASSIGNMENT, SUBLETTING AND ENCUMBERING LEASE
(ii)
Section 11.1 No Assignment, Subletting or Encumbering of Lease 15
Section 11.2 Assignment or Sublet 16
Section 11.3 Transfer of Landlord's Interest 17
ARTICLE XII - SUBORDINATION, ATTORNMENT, FINANCING AND ESTOPPEL CERTIFICATE
Section 12.1 Subordination 17
Section 12.2 Attornment 17
Section 1 2.3 Financing 17
Section 12.4 Estoppel Certificate 17
Section 12.5 Remedies 18
ARTICLE XIII - ADVERTISING AND PROMOTION
Section 13.1 Promotion Fund 18
Section 13.2 Promotion Fund Contribution 18
Section 13.3 Advertisements 18
Section 13.4 Network 18
ARTICLE XIV - DEFAULT AND REMEDIES
Section 14.1 Elements of Default 19
Section 14.2 Landlord's Remedies 19
Section 14.3 Bankruptcy 21
Section 14.4 Additional Remedies and Waivers 21
Section 14.5 Landlord's Cure of Default 21
ARTICLE XV - RIGHT TO ACCESS 21
ARTICLE XVI - DELAYS 22
ARTICLE XVII - END OF TERM 22
Section 17.1 Return of Leased Premises 22
Section 17.2 Holding Over 22
ARTICLE XVIII - COVENANT OF QUIET ENJOYMENT 22
ARTICLE XIX - UTILITIES 22
Section 19.1 Utilities 22
Section19.2 Electricity, Telephone and Gas 23
Section19.3 Trash and Garbage Removal 23
Section19.4 Water and Sewer 23
Section19.5 Grease Interceptors 23
ARTICLE XX - MISCELLANEOUS
Section 20.01 Entire Agreement 23
Section 20.02 Notices 23
Section 20.03 Successors 24
Section 20.04 Liability of Landlord 24
Section 20.05 Brokers 24
Section 20.06 Transfer of Landlord 24
Section 20.07 No Partnership 24
Section 20.08 Waiver of Counterclaims 24
Section 20.09 Waiver of Jury Trial 24
Section 20.10 Severability 24
Section 20.11 No Waiver 24
Section 20.12 Consumer Price Index 24
Section 20.13 Interest 24
Section 20.14 Excavation 25
Section 20.15 Rules and Regulations 25
Section 20.16 Financial Statements 25
Section 20.17 General Rules of Construction 25
Section 20.18 Recording 25
Section 20.19 Effective Date 25
Section 20.20 Headings 25
EXHIBITS
Exhibit Outline of Retail Development
Exhibit Outline of Leased Premises
Exhibit "A" Relocation Zone
Exhibit '1B" Calculation of Gross Leasable Area
Exhibit "C" Landlord's Work - White Box
Exhibit "C-i', Utilities
Exhibit "CC" Central Air Conditioning Supply System
Exhibit "D11 Tenant's Work - White Box
Exhibit Sign Criteria
Exhibit 1'F" Commencement Date and Expiration Date Declaration
GUARANTYS
THIS LEASE dated as of this day of by and between TAUBMAN AUBURN HILLS
ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, the address of
which is 200 East Long Lake Road, P.O. Box 200, Bloomfield Hills, Michigan
48303-0200 (hereinafter referred to as "Landlord"), and TOYS INTERNATIONAL,
INC., a California corporation, the address of which is 550 Rancheros Drive, San
Marcos, CA 92069 (hereinafter referred to as "Tenant"). All payments, documents,
notices, and any other item to be transmitted to Landlord shall be transmitted
to Landlord's principal place of business at the address set forth in this
paragraph.
DATA SHEET
The following references furnish data to be incorporated in the
specified Sections of this Lease and shall be construed to incorporate all of
the terms of the entire Section as stated in this Lease:
(1) Section 1.1: Description of Leased Premises:
Store number: M55 1 , consisting of approximately ten thousand (10,000)
square feet of floor as shown on Exhibit "A".
(2) Section 1.2: Term:
Commencement Date:
The earlier of (i) the later of (a) the Grand Opening, or (b) expiration
of a sixty (60) day Fixturing Period following Possession Date (as
defined in Section 3.2), or (ii) the date the are initially open for
business to the public.
Original Term: Ten (10) years
Option Period: N/A
(3) Section 2.1: Minimum Rent:
the date of the Delivery of Leased Premises
From the Commencement Date and continuing through the third (3rd) year
of the term, the sum of One Hundred ninety-five Thousand and 00/1 O0ths
Dollars ($195,000.00) annually, payable in equal consecutive monthly
installments of Sixteen Thousand Two Hundred Fifty and 00/100ths
Dollars ($1 6,250.0O)each;
Beginning with the fourth (4th) year and continuing through the sixth
(6th) year of the term, the sum of Two Hundred Twenty Thousand and 00/1
O0ths Dollars ($220,000.00) annually, payable in equal consecutive
monthly installments of Eighteen Thousand Three Hundred thirty-three
and 33/1 O0ths Dollars ($18,333.33)each; and
Beginning with the seventh (7th) year and continuing through the
expiration of the term, the sum of Two Hundred Sixty Thousand and
00/100ths Dollars ($260,000.00) annually, payable in equal consecutive
monthly installments of twenty-one Thousand Six Hundred sixty-six and
67/lOOths Dollars ($21,666.67) each.
Address:
(4) Section 2.2: Percentage Rent:
From the Commencement Date and continuing through the third (3rd) year
of the term, six percent (6%) (the "percentage factor") of Gross Sales
made during each Lease Year in excess of Three Million Four Hundred
Thousand and 00/1 00ths Dollars ($3,400,000.0O)(which sum is herein
called the "Sales Break Point");
Beginning with the fourth (4th) year and continuing through the sixth
(6th) year of the term, six percent (6%) (the "percentage factor") of
Gross Sales made during each Lease Year in excess of Three Million Six
Hundred Thousand 00/1 00ths Dollars ($3,600,00O.O0)(which sum is herein
called the "Sales Break Point").
Beginning with the seventh (7th) year and continuing through the
expiration of the term, six percent (6%) (the "percentage factor") of
Gross Sales made during each Lease Year in excess of Four Million Four
Hundred Thousand and 00/1 O0ths Dollars ($4,400,O00.00)(which sum is
herein called the "Sales Break Point").
(5) Section 2.4: Security Deposit: None
(6) Section 3.2: Tenant Inducement: One Hundred Fifty Thousand and 00/100ths
Dollars ($150,000.00)
(7) Section 4.1: Permitted Use:
Tenant shall use the Leased Premises for the use set forth below and for
no other purpose: for a Toys International store featuring educational
toys, novelty toys, computer related software, giftware, related toys,
and displayed in an area not to exceed ten percent (10%) of the selling
floor area, children's clothing.
Trade Name: Toys International
(8) Section 13.2: Fund Contribution: $1.00 per square foot of floor area in
the Leased Premises
Grand Opening Fee (Initial Contribution): $1.00 per square foot of floor
area in the Leased Premises
(9) Temporary Charges: N/A
(10) Chargebacks: N/A
(11) Guarantor:
Play Co. Toys & Entertainment Corp., a Delaware corporation
550 Rancheros Drive San Marcos, California 92069
ARTICLE I
GRANT AND TERM
Section 1.1 Leased Premises. (a) Landlord, in consideration of the rent to
be paid and the covenants to be performed by Tenant, does hereby lease and
demise to Tenant, and Tenant hereby rents and hires from Landlord for the term
herein set forth, the Leased Premises which area is described as set forth in
the Data Sheet attached hereto, in the retail development designated as - or by
such other name as Landlord may from time to time hereafter designate
(hereinafter "Retail Development"). The term "State" as used herein shall mean
the State of For all purposes in this Lease, a "Major Tenant" is any occupant of
more than twenty thousand (20.000) square feet of floor area in the Retail
Development. It is agreed that, wherever the term "Shopping Center" is used
herein, it shall mean the Retail Development excluding the areas occupied by
Major Tenants, except as otherwise specifically stated herein. Exhibit "A", page
1, sets forth the general layout of the Retail Development. Landlord does not
warrant or represent that the Retail Development or the Leased Premises will be
constructed exactly as shown thereon or that it will be completed by a specific
date. Notwithstanding anything contained in this Lease to the contrary, Landlord
shall have the right, at any time and from time to time, without notice to or
consent of Tenant, and without in any manner diminishing Tenant's obligations
under this Lease, to make alterations or additions to, and build additional
stories on the building in which the Leased Premises are located and to build
adjoining the same, to construct other buildings and improvements of any type in
the Retail Development or the common areas, or any part thereof, including the
right to locate and/or erect thereon permanent or temporary kiosks and
structures, to enlarge the Retail Development, and to make alterations therein
or additions thereto, to build adjoining thereto. to construct decks or elevated
parking facilities and free standing buildings within the parking lot areas of
the Retail Development, and to change the size, location, elevation and nature
of any of the stores in the Retail Development or the common areas, or any part
thereof. In the event Landlord elects to enlarge the Retail Development, or any
part thereof; any additional area may be included by Landlord in the definition
of the Retail Development for purposes of this Lease. Landlord shall also have
the general right from time to time to include within and/or to exclude from the
defined Shopping Center any existing or future areas and the floor area of the
Shopping Center shall be accordingly adjusted. The premises leased to Tenant are
herein referred to as the "Leased Premises". The approximate location of the
Leased Premises is cross-hatched on the lease plan of the Retail Development
attachment hereto and made a part hereof as Exhibit "A", page 2. This Lease of
the Leased Premises is subject to all applicable building restrictions, planning
and zoning ordinances, governmental rules and regulations, existing underlying
leases, and all other encumbrances, covenants, restrictions, easements and
agreements affecting the Retail Development and the terms and provisions of
certain master declarations, reciprocal easement and operating agreements now or
hereafter entered into by Landlord. Subject to the provisions of Section 5.1,
Tenant shall enjoy a non-exclusive easement, right and privilege for Tenant and
its customers, employees and invitees and the customers, employees and invitees
of any assignee. sublessee. concessionaire or licensee of Tenant, to use the
common areas of the Shopping Center, with Landlord and the other tenants and
occupants of floor area with the Shopping Center and their respective customers,
employees and invitees. Furthermore, Landlord agrees that any additions,
alterations or modifications to the Shopping Center by Landlord' shall not
adversely affect access to, or visibility of the Leased Premises and, except as
otherwise provided for herein, Tenant shall retain substantially the same
relative position with respect to Major Tenants of the Shopping Center as of the
Commencement Date.
After the Delivery of Possession Date, Landlord reserves the right to
relocate Tenant (ii) no more than once every five (5) year period of the term,
or (ii) if required by the construction for a Major Tenant or redevelopment of
the Shopping Center. Such change in location will be upon not less than ninety
(901 days prior written notice from Landlord to Tenant (the "Relocation
Period"). During such Relocation Period, Landlord shall offer to Tenant such
alternative location (of approximately the same floor area) which will be
limited to the area outlined and marked "Relocation Zone" on Exhibit "A", page
3, as may be available. In the event the parties agree on a specific location,
then this Lease shall be amended by substituting the new location for the
present location and the square footage and Minimum Rent shall be
proportionately adjusted based upon the change in the size of the Leased
Premises. Landlord shall, at Landlord's cost and expense, complete the leasehold
improvements to the Leased Premises in accordance with the working drawings
originally approved by Landlord with respect to Tenant's Work in the original
Leased Premises and Tenant shall relocate to the new location and, within
fifteen (15) days after delivery of the new premises, open for business in the
new premises. In the event Landlord and Tenant are unable to agree on an
alternative location, this Lease shall terminate at the end of said 90-day
period. In the event of such termination, Landlord shall pay to Tenant within
thirty (30) days following the date that Tenant shall have vacated the Leased
Premises, a sum equal to the then unamortized costs of Tenant's leasehold
improvements which have been paid for by Tenant, such amortization to be on a
straight line basis over the original stated term of the Lease, provided Tenant
shall furnish to Landlord such backup information as Landlord may reasonably
require. Tenant shall deliver possession of the Leased Premises to Landlord on
or before the termination and/or relocation date in "as is" condition, subject
to the provisions of Sections 3.5 and 17.1 hereof, and subject to all charges
which are due and owing or which shall accrue up to such date (which charges
shall be paid to Landlord within thirty (30) days of such date) and Tenant shall
be released from any and all further obligations pursuant to this Lease accruing
after such date with respect to the vacated premises; however, in the event of
relocation, Tenant shall remain liable for all obligations accruing under this
Lease after the date of such relocation.
(c) The square footage of the Leased Premises (sometimes herein referred to
as the "gross leasable floor area" or "GLA") shall be measured as defined in
Exhibit "B". The actual square footage in the Leased Premises shall be
determined by Landlord's architect. The certificate of Landlord's architect as
to actual square footage shall be binding upon both parties hereto1 and such
determined square footage shall be used in all calculations based on square
footage throughout this Lease. If the floor area determined in accordance with
the preceding sentence varies by more than five percent (5%) from the square
foot floor area originally set forth in the Data Sheet, the Minimum Rent set
forth in Section 2.1 hereof shall be adjusted by multiplying the Minimum Rent by
a fraction, the numerator of which is the square foot floor area determined by
Landlord's architect and the denominator of which is the square foot floor area
originally set forth in this Section 1.1, and Tenant shall be obligated to pay
such Minimum Rent, as adjusted, from the Commencement Date, subject to further
adjustments as provided in this Lease. Each monthly installment provided for in
Section 2.1 shall be recomputed and shall be that dollar amount which results
from dividing the adjusted Minimum Rent by twelve (12). Any and all references
to the Minimum Rent (or the monthly installments thereof) shall be deemed
references to the Minimum Rent as computed by application of this Section,
subject, however, to the adjustments set forth elsewhere in this Lease. For
purposes of this Lease, in determining the gross leasable floor area or the
gross leased and occupied floor area of the Shopping Center, there shall be
excluded therefrom project areas and offices, common areas and/or areas under
Landlord's control (e.g., electrical/utility room, etc.). The exterior walls,
roof, storefront and the area beneath the Leased Premises are not demised
hereunder, and the use thereof, together with the right to install, maintain,
use, repair and replace pipes, ducts, conduits, wires, tunnels, sewers and
structural elements leading through the Leased Premises in locations which will
not materially interfere with Tenant's use thereof and serving other parts of
the Retail Development, is hereby reserved to Landlord. Landlord reserves an
easement above Tenant's finished ceiling or light line to the roof for general
access purposes and in connection with the exercise of Landlord's other rights
under this Lease.
Section 1.2 Term. The term of this Lease (the "Term") shall be for a period
commencing on the Commencement Date (as defined in the Data Sheet hereof), and
expiring at 11:59 p.m. local time on the final day of the month in which the
Term expires or other specified date as set forth in the Data Sheet (the
"Expiration Date"), unless sooner terminated in accordance with the provisions
thereof and shall include any option or extended period. The term "full year"
and "year" as used in this Section shall mean consecutive periods of twelve (12)
months each following the Commencement Date. For all purposes of this Lease, the
term "Lease Year" shall have the following meaning: the first Lease Year shall
be a period beginning with the Commencement Date and ending on the 31st of next
following the Commencement Date, and after the first Lease Year, the term Lease
Year shall mean a fiscal period of twelve (12) consecutive calendar months
commencing on ~ of each calendar year, except that the last Lease Year shall
terminate on Expiration Date or sooner termination of this Lease. If the Leased
Premises are not delivered to Tenant on or before the expiration of thirty-six
(36) months after the date of Landlord's execution of this Lease, then either
party may cancel and terminate this Lease upon sixty (60) days prior written
notice to the other, in which event neither party shall have any further
obligation or liability to the other; provided, however, that if Landlord has
commenced construction of the Shopping Center, then Tenant shall not be
permitted to terminate in the foregoing manner. Following the Commencement Date,
Landlord may submit to Tenant a Commencement and Expiration Date Declaration in
the form attached' hereto as Exhibit "F", specifying the information called for
in said form, and Tenant shall execute such Declaration within thirty (30) days
following submission for purposes of certifying such information: provided,
however, that the Declaration shall not be rendered ineffective by Tenant's
failure to execute same. If the Commencement Date is not the first day of a
month, Minimum Rent for the month in which the Commencement Date occurs shall be
prorated to the end of the month and paid as the second monthly installment of
Minimum Rent on the first day of the next month and, after the expiration of the
number of years on the Term, the Term shall expire on the last date of the same
month in which the Commencement Date occurred, it being the intention of the
parties that the Term expire on the last day of the month. Neither this Lease
nor the obligations of Tenant hereunder shall be affected by a postponement and
Landlord shall not be subject to any liability for failure to make possession of
the Leased Premises available on the Commencement Date. When the Commencement
Date has been determined, Landlord and Tenant shall execute, acknowledge and
deliver a written statement in recordable form specifying the Commencement Date
and expiration date of the Term and, if there shall have been any changes in the
floor area of the Leased Premises, such statement shall reflect such changes or
changes. Said statement upon execution and delivery shall be deemed to be part
of this Lease. SEE ATTACHED RIDER FOR INSERTS
Section 1.3 Opening. Tenant covenants and agrees to complete its
construction within the Leased Premises in accordance with the provisions of
this Lease, to satisfy the requirements for issuance of a certificate of
acceptance pursuant to Exhibit "D", and to open its store for business to the
public not later than the Commencement Date. Notwithstanding the foregoing,
Landlord hereby notifies Tenant that the anticipated date of the grand opening
of the Shopping Center (the "Grand Opening") is (deletion) and Tenant shall be
obligated to open its store for business to the public on such date or such
other date as Landlord may establish from time to time for the Grand Opening
upon written notice to Tenant. SEE ATTACHED RIDER FOR INSERTS
Section 1.4 Late Opening (deletion) event Tenant shall fail to open its
store for business to the public upon the Commencement Date, then in order to
compensate Landlord for its loss, Tenant shall pay to Landlord as additional
rent (as defined in Section 2.3) over and above the Minimum Rent and all other
charges to be paid by Tenant to Landlord pursuant to his Lease, a sum in an
amount equal to $100 per day for the Commencement Date and each day after the
Commencement Date that Tenant shall have failed to open its store for business.
This remedy shall be in addition to any and all other remedies provided for in
the Lease in the event of such failure to open. Such additional late opening
rent shall be deemed to be in lieu of any Percentage Rent that might have been
earned during the period of Tenant's failure to open. SEE ATTACHED RIDER FOR
inserts
ARTICLE II
RENT AND DEPOSIT
Section 2.1. Minimum Rent. During the entire term of this Lease, Tenant
shall pay annual minimum rental ("Minimum Rent") for the Leased Premises from
the Commencement Date in the amount set forth in the Data Sheet attached hereto,
which sum shall be payable by Tenant in equal consecutive monthly installments
in the sum set forth in the Data Sheet attached hereto, on or before the first
day of each month, in advance. The Minimum Rent and each of the monthly
installments of Rent called for hereunder shall be payable to Landlord, without
demand, deduction, set-off or counter-claim. The first installment of Minimum
Rent shall be paid concurrently with the Commencement Date. If the Commencement
Date occurs on other than the first day of a month, the second installment of
Minimum Rent shall be prorated at a daily rate on the basis of a thirty (30) day
month.
Section 2.2. Percentage Rent. (a) During and for each Lease Year, Tenant
shall pay annual percentage rent ("Percentage Rent") equal to the Percentage
Factor (see Data Sheet) multiplied by all "Gross Sales" resulting from business
conducted in, on or from the Leased Premises during such Lease Year in excess of
the amount of Gross Sales set forth in the Data Sheet (which sum is herein
called the "Sales Break Point"). For purposes of computing annual Percentage
Rent the Sales Break Point for any Lease Year shall be calculated as follows:
each Sales Break Point which was effective during any such Lease Year shall be
multiplied by a fraction, the numerator of which is the number of days in the
Lease Year that such Sales Break Point was effective and the denominator of
which is the actual number of days in such Lease Year (herein the "Adjusted
Sales Break Point") and the sum of the Adjusted Sales Break Points shall be the
Sales Break Point for such Lease Year. "Gross Sales" is defined to mean the
total amount of the actual sales price, whether for cash or otherwise, of all
sales of merchandise or services arising out of or payable on account of (and
all other receipts or amounts receivable whatsoever with respect to) all the
business conducted in, on, or from the Leased Premises by or on account of
Tenant or any sublessee, assignee or concessionaire of Tenant for cash or
otherwise, including all orders for merchandise taken from or filled at or from
the Leased Premises, including all deposits not refunded to customers. A "sale"
shall be deemed to have been consummated, for purposes of this Lease, and the
entire amount of the sale price shall be included in Gross Sales, at such time
as (i) the transaction is initially reflected in the books or records of Tenant,
or any sublessee, assignee or concessionaire of Tenant, or (ii) Tenant or such
other entity receives all or any portion of the sales price, or (iii) the
applicable goods or services are delivered to the customer, whichever first
occurs, irrespective of whether payment is made in installments, the sale is for
cash or credit or otherwise, in a cash register or cash registers having a
cumulative total, which shall be sealed in a manner approved by Landlord and
which shall possess such other features as shall be required by Landlord. There
shall be no deduction allowed for direct or indirect discounts, rebates, or
other reductions on sales, unless generally offered to the public on a uniform
basis. Tenant may exclude from Gross Sales sales to employees at a discount not
available to the general public, bad debts when written off the books of Tenant,
and credit card charges provided, however, that in the aggregate, such
exclusions do not exceed three percent (3%) of Gross Sales in any Lease Year.
Tenant may also exclude from Gross Sales any transfer of goods between Tenant's
other stores, and returns to shippers or manufacturers. The term "Gross Sales"
shall also exclude proceeds from any sales tax, gross receipts tax or similar
tax, by whatever name called which are separately stated and in addition to the
purchase price, refunds given to customers for merchandise purchased at the
Leased Premises and returned or exchanged, and sales of Tenant's fixtures and
equipment not in the ordinary course of Tenant's business. The term
"merchandise" as used in this Lease shall include food and beverages if Tenant
is permitted to sell such items pursuant to Section 4.1 hereof.
(b) Tenant shall keep at the Leased Premises or at Tenant's executive
offices within the continental United States a full and accurate set of books
and records adequately showing the amount of Gross Sales in each Lease Year. The
books and records to be kept by Tenant shall include, without limitation, (i)
cash register tapes, including tapes from temporary registers; (ii) serially
pre-numbered sales slips; (iii) detailed original records of any exclusions or
deductions from Gross Sales; (iv) sales tax records; and (v) such other records,
if any, which would normally be examined by an independent accountant pursuant
to accepted auditing standards in performing an audit of Tenant's sales. Such
books and records shall be kept in accordance with generally accepted accounting
principles and practices and shall be retained by Tenant for a period of not
less than two (2) years following the end of the Lease Year to which they have
reference. When and as Landlord may reasonably require, Tenant shall also
furnish to Landlord any and all statements, information, and copies of sales and
income tax reports and returns which separately show financial data for the
Leased Premises, and inventory records and other data evidencing Gross Sales.
Within five (5) days following the end of each calendar month of the term hereof
Tenant shall submit to Landlord an unaudited statement of Gross Sales for such
calendar month. All Gross Sales statements to be supplied by Tenant to Landlord
shall be in such form and with such detail as Landlord shall deem necessary or
desirable. Within twenty (20) days following the end of the month in which
Tenant's Gross Sales for the Lease Year to date exceed the Sales Break Point,
and each month thereafter, Tenant shall pay to Landlord Percentage Rent and
shall submit to Landlord a statement certified by Tenant setting forth the Gross
Sales for each such period. Within authorized representative or financial
officer of Tenant setting forth the amount of Gross Sales during such Lease Year
and showing the amount of Percentage Rent required to be paid by Tenant for such
Lease Year. The full amount of Percentage Rent due shall be paid to Landlord no
later than sixty (60) days after the end of each Lease Year and any excess
Percentage Rent paid shall be credited against Tenant's next due Percentage Rent
payment, except for the final Lease Year of the Term, when any excess shall be
refunded to Tenant. Landlord and/or Landlord's auditor shall have the right, at
anytime upon reasonable notice and after ten (10) business days, to inspect
and/or to audit the records of Tenant relating to Gross Sales. If Gross Sales
exceed those reported, Tenant shall immediately pay any deficiency in Percentage
Rent owing to Landlord. If Gross Sales vary from those reported by three percent
(3%) or more, Tenant shall pay Landlord's cost of inspection and audit.
If Gross Sales vary from those reported by (I) five percent (5%) or more in
any one (1) Lease Year, or (ii) three percent (3%) or more for any two (2) Lease
Years out of any five (5) Lease Years, then Landlord shall have the right, it
its sole option, to terminate this Lease, with Tenant remaining liable for sums
due and owing under this Lease for the balance of the term as originally set
forth in Section 1.2 hereof. Tenant agrees in the event Tenant shall fail to
timely submit Gross Sales statement as required by this Section 2.2(b), Tenant
shall pay on demand a late fee of Fifty and 00/lOOths Dollars ($50.00) per late
statement, as additional rent.
(c) In the event that any Lease Year during the Term is less than exactly
twelve (12) full calendar months or if Tenant shall fail to operate its business
in the Leased Premises in the manner and on each day as required pursuant to
Article IV hereof, then, for the purpose of computing the Percentage Rent for
any such short Lease Year, or such Lease Year affected by Tenant's failure to
operate, the Sales Break Point for such Lease Year shall be adjusted by
multiplying the Sales Break Point otherwise applicable for such Lease Year by a
fraction, the numerator of which shall be the actual number of days in such
short Lease Year or the actual number of days in such Lease Year during which
Tenant was open for business and operating in accordance with Article IV, and
the denominator of which shall be "360". In the event that the first Lease Year
is less than six (6) months in length, then the Percentage Rent covering such
Lease Year shall be paid on Gross Sales in excess of the Sales Break Point
computed on a prorata basis for the period beginning on the Commencement Date
and ending on the succeeding December 31. For the purpose of the aforesaid
calculation, Tenant's Gross Sales in excess of the Sales Break Point shall be
determined for the first (1 St) full twelve (1 2) calendar months following the
Commencement Date and Percentage Rent shall be paid on such excess prorated as
to the number of days of a full calendar year which are included in the first
(1st) Lease Year.
(d) (deleted)
Section 2.3. Payments By Tenant. Throughout the Term, Tenant shall pay to
Landlord, without demand, deductions, set-offs or counterclaims, the "Rent",
which is hereby defined as the sum of the Minimum Rent, Percentage Rent and all
additional rent (as herein defined), when and as the same shall be due and
payable hereunder. Unless otherwise stated, all sums of money or charges of any
kind or nature, in addition to Minimum Rent and Percentage Rent, payable by
Tenant to Landlord pursuant to this Lease or the exhibits attached hereto are
defined as "additional rent", and are due thirty (30) days after the rendering
of an invoice therefor, without any deductions, set-offs or counterclaims, and
failure to pay such sums of money or charges shall carry the same consequences
as Tenant's failure to pay Minimum Rent or Percentage Rent. All payments and
charges required to be made by Tenant to Landlord hereunder shall be payable in
United States funds, at Landlord's principal place of business at the address
set forth on page 1 of this Lease, unless otherwise specified by written notice
from Landlord to Tenant. No payment by Tenant or receipt by Landlord of a lesser
amount than the correct rent shall be deemed to be other than a payment on
account and no endorsement or statement on any check or other communication
accompanying a check for payment of any amounts payable hereunder shall be
deemed an accord and satisfaction, and Landlord may accept such check in payment
without prejudice to Landlord's right to recover the balance of any sums owed by
Tenant hereunder or to pursue any other remedy available in this Lease, or under
law, against Tenant.
Section 2.4. Security Deposit. (deleted)
Section 2.5. Late Charge. In the event any Rent or sums required hereunder
to be paid are not received on or before the--i-calendar day after the same are
due, then, for each and every late payment, Tenant shall immediately pay, as
additional rent, a service charge equal to the greater of (a) Fifty Dollars
($50.00), lb) Ten Dollars ($10.00) a day for each day such payment is late or
Ic) four percent (4%) per month of the total receivable balance of Tenant
outstanding. In the event of Tenant's failure to pay the foregoing late charge,
Landlord may deduct said charge from the security deposit described in Section
2.4 hereof. The provisions herein for late payment service charges shall not be
construed to extend the date for payment of any sums required to be paid by
Tenant hereunder or to relieve Tenant of its obligation to pay all such sums at
the time or times herein stipulated. Notwithstanding the imposition of such late
charges pursuant to this Section 2.5, Tenant shall be in default under this
Lease if any or all payments required to be made by Tenant are not made on or
before the time due and as stipulated in Article XIV, and neither the demand
for, nor collection by, Landlord of such late payment service charges shall be
construed as a cure of such default on the part of Tenant. It is agreed that the
said late charge is a fair and reasonable charge under the circumstances and
shall not be construed as interest on a debt payment. In the event any charge
imposed hereunder or under any other section of this Lease is neither stated to
be or construed as interest, then no such interest charge shall be calculated at
a rate which is higher than the maximum rate which is allowed under the usury
laws of the State, which maximum rate of interest shall be substituted for the
rate in excess thereof, if any, computed pursuant to this Lease.
SEE ATTACHED RIDER FOR INSERTS
ARTICLE III
PREPARATION OF LEASED PREMISES
Section 3.1. Landlord's Work. Landlord shall construct the building wherein
the Leased Premises are to be located and perform the work described in Exhibit
"C" ("Landlord's Work") at Landlord's cost and expense, except as otherwise
provided in Exhibit "C". All work done by Landlord at Tenant's expense shall be
paid for within thirty (30) days after the presentation to Tenant of a bill for
such work. Acceptance of possession by Tenant shall be conclusive evidence that
Landlord's Work to the date of possession has been fully performed in the manner
required. Any items of Landlord's Work which are not completed as of the
Delivery of Possession Date (as herein defined) shall be identified by Tenant on
a punch list to be submitted to Landlord within thirty (30) days after such
delivery and Landlord shall thereafter complete the same. Any items of
Landlord's Work which are not timely identified on such a punch list shall be
deemed completed.
Section 3.2. Delivery and Possession. (a) Landlord, or Landlord's,
supervising architect, shall give Tenant at least ten (10) days' prior written
notice of the date on which Landlord's Work will be substantially completed in
accordance with Exhibit "C" to the extent that Tenant shall be able to perform
its work in the Leased Premises without substantial interference from the
conduct of Landlord's Work, and the Leased Premises will be available for the
performance of Tenant's Work. The date which is ten (10) days after Landlord
notified Tenant of delivery of possession of the Leased Premises shall be
defined as the "Delivery of Possession Date'" provided, however, that in the
event the Shopping Center shall have initially opened for business prior to the
Commencement Date, then the foregoing notice requirement shall automatically be
deemed to be reduced to a five (5) day notice requirement. Tenant covenants and
agrees to take physical possession of the Leased Premises on the Delivery of
Possession Date. The Delivery of Possession Date shall be subsequently confirmed
by Landlord, or Landlord's supervising architect, by written notice to Tenant.
Failure of Landlord to deliver possession of the Leased Premises within the time
and in the condition provided for in this Lease will not give rise to any claim
for damages by Tenant against Landlord or permit Tenant to rescind or terminate
this Lease.
(b) Provided Tenant shall not interfere with the conduct of Landlord's
Work, and subject to Landlord's reasonable rules and regulations, Tenant may
enter the Leased Premises during normal working hours during the course of
Landlord's Work for the purpose of inspecting the Leased Premises and making
measurements. At such time prior to the Delivery of Possession Date that
Landlord's Work has progressed sufficiently to permit Tenant to perform its work
without interfering with Landlord's Work, Landlord may, but shall not be
required to, notify Tenant of the same, and Tenant may then enter the Leased
Premises in order to begin to install its store fixtures and perform such other
work as may be required under the provisions of this Lease, in order to ready
the store for opening. Throughout the period of Tenant's Work, Tenant shall
schedule its work so as not to interfere with any work being performed by
Landlord or by any other tenant in the Shopping Center. SEE ATTACHED RIDER FOR
INSERTS
Section 3.3. Tenant's Work. (a) Tenant agrees, prior to the Commencement
Date, at Tenant's sole cost and expense, to diligently perform all work of
whatever nature in accordance with Tenant's obligations set forth in Exhibit "D"
("Tenant's Work") and all other related work necessary to prepare for the
opening to the public of Tenant's store in the Leased Premises in accordance
with the provision of this Lease. Tenant agrees to furnish to Landlord the Store
Design Drawings and Working Drawings and Specifications with respect to the
Leased Premises prepared in the manner and within the time periods required in
Exhibit "D" attached hereto. If such Store Design Drawings or Working Drawings
and Specifications are not furnished by Tenant to Landlord within the required
time period(s) in form to permit approval by Landlord, then the Fixturing Period
(as described in the Data Sheet) shall be reduced by one (1) day of each day of
delay by Tenant in submitting said plans, drawings and specifications. Landlord
shall exercise reasonable efforts to respond to drawings and specifications
submitted by Tenant pursuant to this Lease within seven (7) business days
following Landlord's receipt of such drawings and specifications from
Tenant. In the event of Landlord's failure to respond within such seven (7)
business day period, the Fixturing Period as described in the Data Sheet shall
be extended by one (1) day for each day of additional delay by Landlord. No
material deviations from the final plans and specifications, once approved by
Landlord, shall be permitted unless necessary to comply with applicable
governmental requirements. Landlord's approval of Tenant's Store Design Drawings
and Working Drawing and Specifications shall not constitute the assumption of
such items. Tenant's Work shall include the installation of fixtures and
equipment and the stocking of the Leased Premises with suitable merchandise.
Tenant covenants that all such fixtures and equipment visible to customers shall
be new and otherwise acceptable to Landlord in appearance. In addition to
conforming to the requirements specified in Exhibit "D", all work performed by
Tenant shall comply with such rules and regulations as Landlord and its
representatives may make, provided that such rules and regulations are uniformly
applied to all similarly situated Shopping Center tenants under construction.
Unless Landlord otherwise directs in writing, Tenant shall not open the Leased
Premises for business until all construction has been completed pursuant to the
provisions of Exhibit "D". It is further understood and agreed that: (i)
Landlord shall have no responsibility or liability whatsoever for any loss of,
or damage to, any fixtures, equipment, merchandise, or other property belonging
to Tenant, installed or left in the Leased Premises except to the extent
resulting from the negligence or intentional acts of Landlord, its agents or
employees; and (ii) Tenant's entry upon and occupancy of the Leased Premises
prior to the Commencement Date shall be governed by and subject to all the
provisions, covenants and conditions of this Lease. Tenant shall obtain, at its
sole cost, and immediately thereafter furnish to Landlord, all certificates and
approvals with respect to work done and installations made by Tenant that may be
required for the issuance of a certificate of occupancy of the Leased Premises,
so that such certificate of occupancy shall be issued and the Leased Premises
shall be ready for the opening of Tenant's business on the Commencement Date.
Upon the issuance of the certificate of occupancy, a copy thereof shall be
immediately delivered to Landlord. Promptly upon the completion of its work,
Tenant shall repair. clean and restore all portions of the Shopping Center
affected by Tenant's Work to their prior condition.
(b) The interest of Landlord in the Leased Premises and the Retail
Development shall not be subject to liens for improvements made by or on behalf
of Tenant. Nothing contained in this Lease shall be construed as a consent on
the part of Landlord to subject Landlord's estate in the Leased Premises or the
Retail Development to any lien or liability under applicable law. In the event
that any mechanic's, materialman's or other lien or any notices of claim,
including without limitation, stop notices (herein "lien") is filed against the
Leased Premises or Retail Development as a result of any work, labor, services
or materials performed or furnished, or alleged to have been performed or
furnished to or for Tenant or to or for anyone holding the Leased Premises
through or under Tenant, Tenant, at is expense, shall cause the lien to be
discharged or fully bonded to the satisfaction of Landlord within thirty (30)
days after notice of the filing thereof. If Tenant fails to discharge or bond
against said mechanic's, materialman's or other lien, Landlord may, in addition
to any other remedies Landlord may have, but without obligation to do so, bond
against or pay the lien without inquiring into the validity or merits of such
lien and all sums so advanced, including reasonable attorney fees incurred by
Landlord in defending against such lien, procuring the bond or in the discharge
of such lien, shall be paid by Tenant on demand as additional rent. It shall be
Tenant's continuing obligation to keep and maintain the Leased Premises and all
other parts of the Retail Development free from any and all liens arising out of
any work performed, materials furnished or obligations incurred by or for Tenant
in connection with the Leased Premises. In addition, Tenant shall replace any
bonds posted by Landlord pursuant hereto with a suitable bond of equivalent
amount within twenty (20) days after Landlord's demand therefor.
(c) Upon the expiration of each five (5) year portion of the Term, Tenant
shall, within thirty (30) days after direction from Landlord, submit drawings
and specifications showing the work to be performed by Tenant to completely
refurbish the interior portions of Leased Premises. Tenant shall not be
required, pursuant to this Section 3.3(c), to reconstruct the Leased Premises.
The work required of Tenant hereunder shall specifically include work with
respect to the following items: wall covering, floor covering, ceiling,
storefront sign, and surfaces visible to customers. Tenant will cause such work
to be performed not later than ninety (90) days following the date of Landlord's
direction in accordance with drawings and specifications approved by Landlord
specifying the refurbishing work to be done by Tenant. All such work shall be
carried out in accordance with the provisions of this Lease, including the
provisions of this Section 3.3 governing construction of the Leased Premises.
Section 3.4. Alterations by Tenant. Tenant shall not make or cause to be
made any alterations, repairs, additions or improvements in or to the Leased
Premises (for example, but without limiting the generality of the foregoing,
Tenant shall not install or cause to be installed any exterior signs or interior
signs visible from the exterior except as permitted by Section 4.3 hereof, floor
covering, interior or exterior lighting, plumbing fixtures, shades, canopies or
awnings or make any changes to the storefront, mechanical, electrical or
sprinkler systems) without the prior written consent of Landlord. Tenant shall
submit to Landlord plans and specifications for such work at the time consent is
sought, in accordance with the criteria and procedures as provided in Exhibit
"D". In the event Landlord grants such consent, such alterations, repairs,
additions or improvements shall be performed in good and workmanlike manner and
in accordance with all applicable legal and insurance requirements and all
drawings or specifications approved by Landlord, and in accordance with the
provisions of this Lease, including the provisions of Section 3.3 governing
construction of the Leased Premises. Any work performed by Tenant shall be
subject to Landlord's inspection and approval after completion to determine
whether the same complies with the requirements of this Lease. Prior to the
commencement of any such work by Tenant, Tenant shall obtain the insurance
required in Section 8.2. Tenant agrees that Landlord shall have the right, at no
expense to Landlord, to require Tenant to furnish Landlord with payment and
performance bonds guaranteeing the completion of any repairs, alterations,
additions or improvements (structural or otherwise) required or permitted to be
performed by Tenant under any provisions of this Lease. Tenant may from time to
time make non-structural alterations to the Leased Premises, without Landlord's
prior written approval, the total cost of which shall not exceed Ten Thousand
Dollars ($10,000.00) in any year; provided, however, that Tenant shall not be
permitted to alter the sign or the storefront
without the prior written consent of Landlord, and provided further that any
such nonstructural alterations shall not change the overall appearance of the
Leased Premises as originally approved by Landlord.
Section 3.5. Removal by Tenant. All repairs, alterations, decorations,
additions and improvements made by Tenant shall be deemed to be attached to the
leasehold and to have become the property of Landlord upon such attachment, and,
upon the expiration or sooner termination of this Lease, Tenant shall not remove
any such alterations, decorations, additions and improvements; provided that
trade fixtures installed by Tenant may be removed if all Rent due herein is paid
in full and Tenant is not otherwise in default hereunder; provided further,
however, that Landlord may designate by written notice to Tenant those
alterations, decorations, additions and improvements which shall be removed by
Tenant at the expiration or termination of this Lease and Tenant shall promptly
remove the same and repair any damage to the Leased Premises caused by such
removal.
ARTICLE IV
CONDUCT OF BUSINESS
Section 4.1. Use and Trade Name. Tenant shall continuously use and occupy
the Leased Premises during the Term solely for the purpose of conducting the
business specifically set forth in the Data Sheet and for no other purpose or
purposes. Throughout the Term, Tenant shall (a) operate its business in the
Leased Premises under the trade name specifically set forth in the Data Sheet
and under no other so long as such name shall not be held to be in violation of
any applicable law, (b) not change the advertised name or character of the
business operated in the Leased Premises, (c) refer to the Shopping Center by
name in designating the location of the Leased Premises in all newspaper and
other advertising within the Shopping Center market area and in all other
references to the location of the Leased Premises, and (d) during the period
from the Delivery of Possession Date through sixty (60) days following the
Commencement Date, to include in all Tenant's newspaper advertising within the
Shopping Center market area the designation that Tenant is opening for business
in the Retail Development. If any governmental license(s) or permit(s) shall be
required for the proper and lawful conduct of Tenant's business or any other
activity carried on in the Leased Premises, or if a failure to procure such a
license or permit might, or would in any way, adversely affect Landlord or the
Shopping Center, then Tenant, at Tenant's expense, shall duly procure and
thereafter maintain such license (5) or permit(s) and submit the same for
inspection by Landlord. Tenant, at Tenant's expense, shall at all times, comply
with the requirements of such license(s) or permit(s). Except as provided in
Section 1.3, Tenant shall open its store in the Leased Premises for business to
the public on the Commencement Date, and shall thereafter diligently conduct its
regular business operations in the Leased Premises as required by the terms of
this Lease.
Section 4.2. Operation of Business. Tenant shall open for business in the
Leased Premises and remain open during the entire Term and continuously operate
its business in the entire area of the Leased Premises during the entire Term.
Tenant shall conduct its business at all times in a high class and reputable
manner, maintaining, at all times, a full staff of employees and a complete
stock of merchandise. Tenant shall install and maintain, at all times, a display
of merchandise in the display windows (if any) of the Leased Premises and shall
keep the same well lighted during all hours that the Shopping Center is open to
the public and during such other hours as may be reasonably designated by
Landlord, but in no event more than one (1) hour after the close of busines3. In
no event shall Tenant conduct or advertise any auction, fire sale, going out of
business sale, or bankruptcy sale in or about the Leased Premises without
Landlord's prior written consent in each instance, which consent may be withheld
by Landlord in its sole and absolute discretion. Tenant shall conduct its
business in the Leased Premises in a lawful manner and in good faith during all
days and hours specified by Landlord. Tenant shall not use or allow the Leased
Premises to be used for any improper, immoral or objectionable purposes, as
determined by Landlord, and Tenant shall not do any act tending to injure the
reputation of the Shopping Center as determined by Landlord.
Section 4.3. Sign. Tenant shall install and maintain one (1) sign affixed
to the front of the Leased Premises, subject to the prior written approval of
Landlord as to design and location and conforming to all applicable legal and
insurance requirements. Tenant's sign shall conform to the specifications and
requirements contained in Exhibit "E" attached hereto. Tenant shall keep its
approved storefront sign lighted during all hours that the Shopping Center is
open to the public and during such other hours as may be reasonably designated
by Landlord, but in no event more than one (1) hour after the close of business.
Tenant shall pay for all costs in connection with such sign and shall be
responsible for the cost of proper installation and removal thereof and any
damage caused to the Leased Premises thereby. In the event Landlord deems it
necessary to remove such sign, then Landlord shall have the right to do so,
provided, however, that if the sign has received Landlord's prior written
approval and is consistent with the specifications and requirements of Exhibit
"E", Landlord shall replace said sign as soon as practicable. Except as
mentioned above, Tenant shall not place or cause to be placed, erected or
maintained on any exterior door, wall or window of the Leased Premises, or the
glass of any window or door of the Leased Premises, or on any sidewalk or within
any display window space in the Leased Premises, or within five (5) feet of the
front of the storefront lease line or opening, or within any entrance to the
Leased Premises, or otherwise visible from the enclosed mall, any sign
(flashing, moving, hanging, handwritten or otherwise), decal, placard, flashing,
moving or hanging lights, lettering or any other advertising matter of any kind
or description. No symbol, design, name, mark or insignia adopted by Landlord
for the Retail Development shall be used without the prior written approval of
Landlord. Any interior signs must be in good taste and prepared professionally
(not hand-lettered) so as not to detract from the appearance of the Leased
Premises or the Shopping Center. Any sign or display visible from the exterior
of the Leased Premises which does not meet the above criteria may be removed at
any time by Landlord without Landlord incurring any liability therefor, and
without such removal constituting a breach of this Lease or entitling Tenant to
claim damages on account thereof.
Section 4.4. Tenant's Warranties. Tenant warrants, represents, covenants
and agrees that, in the operation of its business within the Leased Premises,
Tenant shall: (a) pay before delinquency any and all taxes, assessments and
public charges levied, assessed or imposed upon Tenant's business, or upon
Tenant's fixtures, furnishings or equipment in the Leased Premises, or upon any
leasehold interest or personal property of any kind, owned by or placed in or
about the Leased Premises by Tenant or by anyone claiming by, through or under
Tenant, including, without limitation, any transfer taxes, and pay when and as
due all license fees, permit fees and charges of a similar nature on the conduct
by Tenant or by anyone claiming by, through or under Tenant, including without
limitation, any transfer taxes, and pay when and as due all license fees, permit
fees and charges of a similar nature of the conduct by Tenant or any subtenant
or concessionaire of any business or undertaking authorized hereunder to be
conducted in or from the Leased Premises; (b) observe all reasonable
requirements promulgated by Landlord at any time and from time to time relating
to delivery vehicles, the delivery of merchandise, and the storage and removal
of trash and garbage; (c) not use any space outside the Leased Premises for
sale, storage or any other undertaking; (d) not use the plumbing facilities in
the Leased Premises for any purpose other than that for which they were
constructed, nor dispose of any foreign substances therein; (e) not use any
advertising medium or sound devices inside or adjacent to the Leased Premises
which produce or transmit sounds which are audible beyond the interior of the
Leased Premises; (f) not permit any odor to emanate from the Leased Premises
which is objected to by Landlord or by any tenant or occupant of the Retail
Development (and, upon written notice from Landlord, Tenant shall immediately
cease and desist from causing such odor, and Landlord may deem the failure by
Tenant to do so. a material breach of this lease); (g) keep the Leased Premises
and any platform, loading dock or service area used by Tenant in a neat, clean,
safe and sanitary condition; (h) promptly comply with all present and future
laws, ordinances, orders, rules, regulations and requirements of all
governmental authorities having jurisdiction, and observe and comply with all
covenants and restrictions of record and all notices from Landlord's mortgagee,
affecting or applicable to the Retail Development or affecting or applicable to
the Leased Premises or the cleanliness, safety, occupancy and use of the same,
whether or not any such law, ordinance, order, rule, regulation, covenant,
restriction, or other requirement is substantial, or foreseen or unforeseen, or
ordinary or extraordinary, or shall necessitate structural changes or
improvements, shall interfere with the use or enjoyment of the Leased Premises,
or shall be directed to or imposed upon Tenant or Landlord, and Tenant shall
hold Landlord harmless from any and all cost or expense on account thereof (as
used in this Lease, the term o'legal requirements" shall include the
requirements set forth in this subparagraph); (i) not use the parking areas or
sidewalks, common areas or any space on or about the Retail Development (outside
the Leased Premises) for display, sale, handbilling, advertising, solicitation.
or any other similar undertaking; and (j) maintain and operate the heating,
ventilating and air conditioning system and equipment servicing the Leased
Premises so as to adequately heat and cool the same and to maintain at all
times, whether or not Tenant is open for business, temperatures in the Leased
Premises which will not drain heat or ventilation or air conditioning from the
enclosed mall or other interior areas into the Leased Premises and shall not
discharge heat, ventilation or air conditioning from the Leased Premises into
the enclosed mall or other interior areas; and (k) be authorized to do business
in the State.
Section 4.5. Storage and Office Space. Tenant shall store or stock-in the
Leased Premises only such goods, wares and merchandise as Tenant intends to
offer for sale at, in, from, or upon the Leased Premises. This shall not
preclude occasional emergency transfers of merchandise to the other stores of
Tenant, if any, not located in the Shopping Center. Tenant shall use for office,
clerical or other non-selling purposes only such space in the Leased Premises as
is from time to time reasonably required for Tenant's business therein, and
Tenant shall not perform any office or clerical function in the Leased Premises
for any store located elsewhere.
Section 4.6. Care of Premises. Tenant shall keep the Leased Premises
(including the exterior and interior portions of all windows, doors and all
other glass and signs) orderly, neat, safe and clean and free from rubbish or
dirt at all times and shall store all trash and garbage only in the areas
reasonably designated by Landlord for such storage and accumulation. Tenant
shall not move any safe, heavy machinery, heavy equipment, or fixtures into or
out of the Leased Premises without Landlord's prior written consent. Tenant
agrees that it will not place a load on any floor exceeding the floor load per
square foot which such floor was designed to carry, and will not install,
operate or maintain in the Leased Premises any heavy equipment except in such
manner as to achieve a proper distribution of weight.
Section 4.7. Notice by Tenant. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the Leased Premises, or in the building
of which the Leased Premises are part, or of defects therein or in any fixtures
or equipment.
Section 4.8. Radius. During the term of this Lease, in the event Tenant, or
any person, firm or corporation who or which controls or is controlled by Tenant
(an "Affiliate") shall directly or indirectly, either individually or as a
partner or stockholder or otherwise, own, operate, or become financially
interested in any business similar to or in competition with the business of
Tenant described in Article IV ("competing business"), which business is
conducted within the Area (as said term is herein defined), then the Gross Sales
(as said term is defined in this Lease) of any such competing business within
said Area shall be included in Tenant's Gross Sales made from the Leased
Premises and the Percentage Rent hereunder shall be computed upon the aggregate
of Tenant's Gross Sales made from the Leased Premises and made from each such
competing business then conducted within said Area. Tenant shall be obligated to
provide Landlord with full and complete Gross Sales information and reports with
respect to any competing business within the Area in accordance with the
requirements of Article II of this Lease and Tenant shall be obligated to
include the applicable portion of the Gross Sales of such competing business in
with the Gross Sales of the Leased Premises and to pay Percentage Rent thereon
in accordance with the terms of this Lease. The "Area" shall be defined as the
area falling within the radius of twenty-five (25) miles measured from m the
outside boundary of the Retail Development. This Section 4.8 shall not apply to
any competing business which
SEE ATTACHED RIDER FOR INSERTS
is open and is being operated by Tenant or an Affiliate within said Area on the
Effective Date (as said term is defined in Section 20.19).
ARTICLE V
COMMON AREA
Section 5.1. Use of Common Area. Landlord agrees to cause to be operated,
managed and maintained during the term of this Lease all of the common areas of
the Shopping Center. The term "common areas", as used in this Lease, shall mean
the parking areas, pedestrian sidewalks and bridges, truckways, loading docks,
delivery areas, park areas, pedestrian malls and courts, elevators and
escalators, if any, and stairs not contained in leased areas, public restrooms
and comfort stations, if any, service areas, fire, service and exit corridors,
passageways, landscaped areas, berms and all other areas or improvements which
may be provided for the convenience and use of the occupants and tenants of the
Retail Development and their respective agents, employees, customers, invitees,
and the licensees and invitees of Landlord. The use and occupancy by Tenant of
the Leased Premises shall include the non-exclusive use, in common with all
others to whom Landlord has or may hereafter grant rights to use the same
(including, but not limited to, the owners, tenants and occupants of the
Shopping Center), of the common areas and of such other facilities as may be
designated by Landlord from time to time; subject, however, to rules and
regulations for the use thereof which will be uniformly applicable to all
Shopping Center tenants, as prescribed from time to time by Landlord. In
particular, Tenant and its employees shall park their cars only in the areas
specifically designated from time to time by Landlord for that purpose. Tenant
covenants that it will enforce the parking by its employees in such designated
areas. Automobile license numbers of employees' cars shall be furnished by
Tenant to Landlord within five (5) days after Landlord's request. In the event
any vehicle is parked by an employee of Tenant in a non-employee parking area,
Landlord shall have the right to cause the vehicle to be towed to a location
designated by Landlord and Tenant shall be obligated to reimburse Landlord for
all towing charges. Tenant further agrees to hold harmless and defend Landlord
and its agents and employees against any and all claims of the employee and/or
owner of the vehicle towed. Landlord may, at any time, close temporarily any
common area to make repairs or changes, to prevent the acquisition of public
rights to such areas and to discourage non-customer use, provided the same shall
not materially adversely affect access to or visibility of the Leased Premises.
In addition, Landlord may modify, from time to time, the traffic flow pattern
and layout of parking spaces and the entrances-exits to adjoining public streets
or walkways, utilize portions of the common areas for entertainment, displays
and charitable activities and do such other acts in and to the common areas as,
in its judgment, may be desirable to improve the convenience or attraction
thereof. Landlord agrees to maintain all common areas of the Shopping Center in
good order, condition and repair and in a safe, clean, sightly and sanitary
condition, in accordance with good and accepted shopping center practices. The
maintenance obligations of Landlord shall include, without limitation, the
re-striping of parking areas, when required, repairing of common areas and
adequate lighting of all exterior common areas during all hours of darkness
during which Tenant shall be open for business and for one (1) hour thereafter.
Section 5.2. Common Area Maintenance Expenses. (a) Tenant agrees to pay to
Landlord each Lease Year, in the manner hereinafter provided, Tenant's
proportionate share of all costs and expenses (the "Common Area Maintenance
Expenses") of every kind and nature paid or incurred by Landlord, or for which
Landlord is obligated, during each Lease Year, for operating, equipping,
policing and protecting, heating, air conditioning, providing sanitation and
sewer and other services, lighting, insuring, repairing, replacing and
maintaining (i) the common areas, and (ii) all buildings and roofs within the
Retail Development, and (iii) all other areas, facilities and buildings used in
connection with the maintenance and/or operation of, and whether located within
or outside of, the Retail Development, including without limitation, all roads
and driveways serving the Retail Development which are maintained or repaired by
Landlord or at Landlord's expense. The Common Area Maintenance Expenses shall
include, but are not limited to, costs and expenses of: water, gas, sewage,
electricity, refuse disposal, air conditioning, heating and other utilities
(without limitation), including all usage, service, hook-up, connection
availability and/or standby fees or charges pertaining to same, and the utility
costs; illumination and maintenance of signs, whether located on or off the
Retail Development property; salaries of all management personnel; maintenance,
repair and replacement of directories, electronic or otherwise, cleaning,
lighting, snow removal and landscaping; security control and fire protection;
uniforms for maintenance, administrative and security personnel for the Retail
Development; management fees; maintenance for wooded areas, retention ponds,
wetlands, rivers and riverbank areas; premiums for insurance to the extent
maintained by Landlord, for liability, casualty and property damage, including,
without limitation, insurance against vandalism, plate glass breakage, fire and
extended coverage insurance and such other coverage as determined by Landlord,
and liability for defamation and claims of false arrest occurring in and about
such areas; personal property taxes; maintaining and replacing the equipment, if
any; supplying music to such areas; the reasonable depreciation of equipment
used in the operation and maintenance of such areas; total compensation and
benefits (including premiums for workers' compensation and other insurance) paid
to or on behalf of persons involved in the performance or administration of the
work specified in this Section 5.2; repair, maintenance and cleaning of such
areas; costs and expenses for water and sewage usage in the Shopping Center;
operation, repair, maintenance and reasonable depreciation of all temporary and
permanent utility systems for the Retail Development, including, without
limitation, heating, ventilating and air conditioning systems (HVAC systems),
gas system(s), plumbing system(s); electrical equipment and irrigational pumping
system(s); operation, repair, maintenance and reasonable depreciation of
emergency water and sprinkler main system(s) and security alarm system(s);
operation, maintenance, repair and replacement of mechanical equipment including
any automatic door openers, elevators, escalators, lighting fixtures (including
replacement of poles, tubes and bulbs) and all other items of equipment used in
connection with such areas; paper supplies in restrooms located in or about such
areas; cleaning, lighting, striping and landscaping, curbs, gutters, sidewalks,
drainage and irrigation ditches,
conduits, pipes and canals serving the Retail Development; and there shall also
be added to the foregoing costs and expenses an amount equal to fifteen percent
(15%) of the total of all of the ongoing costs and expenses as Landlord's
administrative fee. As stated throughout this Lease, whenever Tenant is
obligated to pay its "proportionate share", such share shall be based on gross
leased and occupied floor area in the Shopping Center, and Tenant's
proportionate share shall be that fraction, the numerator of which is the total
square footage of floor area in the Leased Premises, and the denominator of
which is the total square footage of gross leased and occupied floor area
(including the Leased Premises) in the Shopping Center. As used throughout this
Lease, the "gross leased and occupied floor area" in effect for the whole of any
Lease Year shall be the average of the gross leased and occupied floor area in
effect on the first day of each calendar month in such Lease Year.
(1) Prior to the proration of such Common Area Maintenance Expenses to
Tenant, there shall be deducted from the total of such Common Area Maintenance
Expenses any amount specifically contributed by the Major Tenants toward such
Common Area Maintenance Expenses. It is further agreed that in no event shall
Tenant be obligated for the capital costs of initially constructing the Retail
Development or the capital costs of subsequent expansion construction for the
Retail Development (i.e., adding new Major Tenants to the Retail Development or
expanding the Shopping Center or the common areas).
(2) Not more often than once during each Lease Year, Landlord agrees to
provide, upon thirty (30) days prior written notice, but in no event earlier
than ninety (90) days following the expiration of any Lease Year, a statement of
Common Area Maintenance Expenses, in reasonable detail. Landlord shall be
permitted to describe areas of expenditure by category and shall not be
obligated to enumerate each specific expenditure.
(b) Tenant's proportionate share of such Common Area Maintenance Expenses
for each Lease Year shall be paid in advance, in equal monthly installments, in
the same manner and at the same time as the monthly installments of Minimum Rent
are payable hereunder, without deduction or diminution of any kind, based on an
amount estimated in advance, from time to time, by Landlord to be Tenant's
obligation under this Section 5.2. Notwithstanding the above, in the event
Landlord, at any time, determines that the amount of Common Area Maintenance
Expenses actually being paid or incurred by Landlord exceeds the estimate upon
which Tenant's proportionate share of Common Area Maintenance Expenses was
computed, then Tenant, following a request from Landlord, shall commence to pay
with the next monthly installment of Minimum Rent due in an amount sufficient to
result in Tenant's paying its full proportionate share of Common Area
Maintenance Expenses as computed on the basis of Landlord's revised estimate of
Common Area Maintenance Expenses. Subsequent to the end of each Lease Year,
Landlord shall furnish Tenant with a statement of the actual amount of Tenant's
proportionate share of such Common Area Maintenance Expenses for such period. If
the total amount paid by Tenant under this Section 5.2 for any Lease Year shall
be less than the actual amount due from Tenant for such Lease Year as shown on
such statement, Tenant shall pay Landlord the difference between the amount paid
by Tenant and the actual amount due, such deficiency to be paid within thirty
(30) days after the furnishing of each such statement, and if the total amount
paid by Tenant hereunder for any such Lease Year shall exceed the actual amount
due from Tenant for such Lease Year, such excess shall be credited against the
next installment due from Tenant to Landlord under this Section 5.2. SEE
ATTACHED RIDER FOR INSERTS ARTICLE VI
REPAIRS AND MAINTENANCE
Section 6.1. Repairs and Maintenance by Landlord. Landlord agrees to keep
in good order, condition and repair the roof (including keeping the roof
watertight), foundation, exterior (including exterior painting and finish), all
structural portions of the Leased Premises (and of the building in which the
Leased Premises are located) and all plumbing and utility lines not exclusively
serving and not located within the Leased Premises. Should any repairs,
modifications or alterations be required by reason of applicable law, the same
shall be made by Landlord, at Landlord's cost and expense, unless the need for
such repairs, modifications or alterations shall result from Tenant's failure to
perform its obligations under this Lease or from Tenant's use of the Leased
Premises for other than general merchandising purposes. Landlord further agrees
to keep in a safe, secure condition all buildings in the Shopping Center In
addition, for the first twelve (12) months only following the Delivery of
Possession Date, Landlord shall, upon written notice from Tenant of the
necessity therefor, correct any defects in Landlord's Work within the Leased
Premises. All costs and expenses incurred by Landlord under this Section 6.1
shall be included in Common Area Maintenance Expenses, other than costs and
expenses for Landlord's correction of defects in Landlord's Work.
Section 6.2. Repairs and Maintenance by Tenant. (a) Except for the repairs
and maintenance that Landlord is specifically obligated to make or perform
pursuant to Section 6.1 above, throughout the entire Term, Tenant, at its
expense, shall promptly make all repairs and replacements and perform
maintenance in and to the Leased Premises and all equipment and fixtures therein
or appurtenant thereto, that are necessary or desirable in order to keep the
Leased Premises in good order, condition and repair and in a safe, dry and
tenantable condition. Without limiting the generality of the foregoing, Tenant,
at its expense, shall maintain and promptly make any and all necessary repairs
to or replacements of: (i) that portion of any pipes, lines, ducts, wires or
conduits (whether contained within or outside the Leased Premises) which are
installed by Tenant or that exclusively serve the Leased Premises; (ii) the
glass windows, plate glass doors, and all fixtures or appurtenances composed of
glass that are located in or about the Leased Premises; (iii) Tenant's signs;
(iv) the floors and floor coverings, doors and door frames, windows and window
frames, walls, storefront, including security gates, grilles or enclosures,
locks and closing devices, partitions and ceilings in the Leased Premises; (v)
heating, ventilating, air conditioning, electrical and plumbing system(s)
equipment and fixtures (whether contained within or outside the Leased Premises)
which
are installed by Tenant or which exclusively serve the Leased Premises; and (vi)
the Leased Premises or any part of the Shopping Center when repairs thereto are
necessitated by any act or omission (negligent or otherwise) of Tenant or any of
Tenant's agents, employees or invitees, or by the failure of Tenant to perform
any of its obligations under this Lease. Notwithstanding the foregoing, Landlord
shall be responsible for repairs and maintenance necessitated by the negligence
or intentional acts of Landlord, its agents or employees. Notwithstanding any
contrary provision of this Article VI, Tenant, at its expense, shall make any
and all repairs to the Leased Premises as may be necessitated by any break-in,
forcible entry or other trespass into or upon the Leased Premises, regardless of
whether or not such entry and damage is caused by the negligence or fault of
Tenant or occurs during or after business hours. Tenant, at its expense, shall
change all air conditioning filters at least five (5) times per year and shall
have the air conditioning system professionally inspected and generally serviced
at least twice per year.
(b) Tenant shall keep and maintain the Leased Premises in a clean, sanitary
and safe condition in accordance with the laws of the State and in accordance
with all directions, rules and regulations of the health officer, building
inspector, the National Fire Protection association and any other officials of
the governmental agencies having jurisdiction, at the sole cost and expense of
Tenant, and Tenant shall comply with all requirements of law, ordinance, rules,
regulations and orders of any lawful authority having jurisdiction affecting
said Leased Premises, or Tenant's use thereof. Tenant, at its expense, shall
install and maintain fire extinguishers and other fire protection devices as may
be required by reason of the conduct of Tenant's business, from time to time by
any agency having jurisdiction or the underwriters insuring the building in
which the Leased Premises are located. If any bureau, department or official of
the Federal or State government requires or recommends the installation of any
changes, modifications or alterations in the sprinkler system or additional
sprinkler heads or other equipment (hereinafter collectively "changes") by
reason of Tenant's business, or the location of partitions, trade fixtures, or
other contents of the Leased Premises, or for any other reason, or if any such
changes become necessary to prevent the imposition of a penalty or charge
against the full allowance for a sprinkler system in the fire insurance rates
set by any fire insurance company, Tenant, at Tenant's expense, shall promptly
make such changes as required.
(c) Tenant agrees that Tenant's use of electrical current will at no time
exceed the capacity of the electric distribution system and that Tenant will not
make any alteration or addition to Tenant's electrical system without Landlord's
prior written consent. If Tenant installs any electrical equipment that
overloads the electrical lines in the Leased Premises or the Retail Development,
Tenant shall, at Tenant's sole cost and expense, be required to make whatever
changes to such electrical equipment and in electric wiring in the Leased
Premises (but only after obtaining Landlord's written approval) as may be
necessary in order to remedy such overloading and in compliance with all
insurance and legal requirements. All changes required to be made hereby shall
result in the continued conformance with the provisions of Exhibit "D" and this
Lease.
(d) If Tenant refuses or neglects to properly maintain the Leased Premises,
or to commence or to complete repairs promptly and adequately, or if Landlord
finds it necessary to make any repairs or replacements otherwise required to be
made by Tenant, then Landlord may, after notice to Tenant, in addition to all
other remedies, but without obligation to do so, enter the Leased Premises and
proceed forthwith to have such maintenance, repairs or replacements made and
Tenant shall pay to Landlord, on demand, the costs and expenses therefor plus a
charge of fifteen percent (15%) of such costs and expenses.
ARTICLE VII
TAXES
Section 7.1. Tax Liability. Tenant agrees to pay to Landlord Tenant's
proportionate share of all taxes and assessments and service payments in lieu of
taxes of every nature and kind which may be levied or assessed by, or payable
to, any lawful authority during or with respect to each fiscal tax year falling
in whole or in part during the Term against all or any part of the land,
buildings and improvements comprising the Retail Development and any other taxes
which Landlord becomes obligated to pay with respect to the Retail Development,
whether or not the same are assessed against real or personal property or are
payable in advance or in arrears (the "Taxes"). If, due to a future change in
the method of taxation, any tax, excise or assessment shall be levied or
assessed against Landlord, directly or indirectly, in lieu of, in substitution
for or as a supplement to any present Taxes or future (real estate or personal
property) tax, in whole or in part, such tax, excise or assessment shall
constitute a Tax, respecting which Tenant is obligated to pay its proportionate
share to Landlord as provided herein. If any Taxes or assessed valuation(s) are
contested by Landlord, then Tenant's proportionate share of Taxes shall also
include Tenant's proportionate share of the cost and expense of consultation
services incurred in evaluating and contesting such Taxes or assessed
valuation(s). The term "Taxes" shall also include any form of assessment,
special assessment, license fee, license tax, business license fee, business
license tax, commercial rental tax, levy, charge, tax or similar imposition,
imposed by any authority having the direct power to tax, including without
limitation, any city, county, state or Federal government, or any school,
agricultural, lighting, drainage or other improvement or special assessment
district or any other agency or other public body, whether or not consented to
or joined in by Landlord and whether or not retroactive, payable by Landlord
thereof as against the land and improvements comprising, or any legal or
equitable interest of Landlord in, the Retail Development. SEE ATTACHED RIDER
FOR INSERTS Section 7.2. Method of Payment. Tenant's proportionate share of
Taxes shall be paid, in advance, in monthly installments on or before the first
day of each calendar month, in an amount estimated by Landlord. Following
receipt of all bills for Taxes attributable to any calendar or fiscal year
during the term hereof, Landlord shall furnish Tenant with a written statement
of the actual amount of Tenant's proportionate share of Taxes for such year. If
any bill for any such Taxes is not available, Landlord will estimate the amount
of such Tax. If the total
amount paid by Tenant hereunder for any calendar or fiscal year during the Term
shall be less than the actual amount due from Tenant for such year, as shown on
such statement, Tenant shall pay to Landlord the difference between the amount
paid by Tenant and the actual amount due, such deficiency to be paid within
thirty (30) days after demand therefor by Landlord; and if the total amount paid
by Tenant hereunder for any such calendar or fiscal year shall exceed such
actual amount due from Tenant for such year, such excess shall be credited
against the next installment of Taxes due from Tenant to Landlord hereunder. For
the calendar or fiscal years in which this Lease commences and terminates,
Tenant's liability for its proportionate share of any Taxes for such years shall
be subject to a pro rata adjustment based on the number of days of said calendar
or fiscal years during which the Term is in effect. A copy of any such bill for
Taxes shall at times be sufficient evidence of the amount of Taxes assessed or
levied against the property to which such bill relates. Prior to or at the
Commencement Date and from time to time hereafter throughout the Term, Landlord
shall notify Tenant in writing of Landlord's estimate of Tenant's monthly
installments due hereunder. Tenant's obligations under this Article VII shall
survive the expiration or sooner termination of this Lease. SEE ATTACHED RIDER
FOR INSERTS
Section 7.3. Sales and Rent Tax. (deleted)
ARTICLE VIII
INSURANCE, INDEMNITY AND LIABILITY
Section 8.1. Landlord's Insurance Obligations. Landlord agrees to obtain
and maintain during the Term, to the extent the same is available, fire and
extended coverage insurance, in amounts and coverages and with such special
endorsements as Landlord shall determine from time to time, insuring the
building in which the Leased Premises are located, and the improvements to the
Leased Premises provided by Tenant pursuant to this Lease (exclusive of Tenant's
merchandise, trade fixtures, furnishings, equipment, plate glass, signs and
personal property of Tenantl. Landlord shall also carry rental interruption
insurance in amounts at least equal to Tenant's total rental obligation for at
least twelve (12) full months under this Lease including the total of the
estimated costs to Tenant of Taxes and Common Area Maintenance Expenses
(including insurance) for such period. Tenant shall reimburse Landlord for its
proportionate share of the insurance costs incurred by Landlord under this
Section 8.1 as part of Tenant's Common Area Maintenance Expenses described in
Section 5.2 hereof.
Section 8.2. Tenant's Insurance Obligations. (a) Provided Tenant is the
Tenant named on the Cover Page hereof and a wholly-owned subsidiary of the
Guarantor and Tenant's and Guarantor's net worth are at least equal to Ten
Million. Dollars ($10,000,000.00) combined, Tenant shall have the right to
self-insure for any loss or damage of the type covered by standard fire and
extended coverage insurance with respect to personal property located on or
within the Leased Premises including alterations and improvements made by Tenant
to the extent the same are not covered by Landlord's fire and extended coverage
insurance. Tenant and Guarantor shall, at their sole expenses, without regard to
fault on the part of any person, make and perform any repairs or restorations
which are required as a result of a casualty which would be covered by insurance
of the type described in this Section 8.2(a). Tenant, at Tenant's sole cost and
expense, shall obtain and maintain in effect commencing with the Delivery of
Possession Date and continuing throughout the Term, insurance policies providing
for the following coverage: (i) all risk property insurance against fire, theft,
vandalism, malicious mischief, sprinkler leakage and such additional perils as
now are or hereafter may be included in a standard extended coverage endorsement
from time to time in general use in the State, insuring Tenant's merchandise,
trade fixtures, furnishings, equipment and all items of personal property of
Tenant and of anyone claiming by, through or under Tenant located on or in the
Leased Premises, and the amount of such insurance will be set forth in an
"agreed value endorsement" to the policy of such insurance, not less than one
hundred percent (100%) of the full replacement value thereof without deduction
for depreciation, and with a deductible amount of not more than Fifty Thousand
Dollars ($50,000.00). Any and all proceeds of such insurance, so long as the
Lease shall remain in effect, shall be used only to repair or replace or pay for
the items so insured; (ii) a commercial general liability policy, including
insurance naming Landlord and any mortgagee of the Shopping Center as additional
insured, protecting against any and all claims for injury to persons or property
occurring in or about the Leased Premises and protecting against assumed or
contractual liability under this Lease with respect to the Leased Premises and
the operations of Tenant and any subtenant of Tenant in, on or about the Leased
Premises, with such policy to be in the minimum amount of Three Million Dollars
($3,000,000) single limit coverage; (iii) products liability insurance for
merchandise offered for sale or lease from the Leased Premises, including (if
this Lease covers leased premises in which food and/or beverages are sold and/or
consumed) liquor liability coverage (if applicable to Tenant's business) and
coverage for liability arising out of the consumption of food and/or alcoholic
beverages on or obtained at the Leased Premises, of not less than Two Million
Dollars ($2,000,000) per occurrence for personal injury and death and property
damage; (iv) workers' compensation coverage as required by law; (v) with respect
to alterations, improvements and the like required or permitted to be made by
Tenant hereunder, contingent liability and builders risk insurance in amounts
satisfactory to Landlord; and (vi) the insurance required under Exhibit D".
(b) All insurance policies herein to be procured by Tenant shall: (i) be
issued by insurance companies reasonably satisfactory to Landlord and authorized
to do business in the State; (ii) be written as primary policy coverage and
non-contributing with respect any coverage which Landlord may carry with any
coverage carried by Landlord being excess insurance; (iii) insure and name each
of Landlord, any mortgagee of the Shopping Center or the Retail Development and
any parties in interest designated by Landlord as additional insured, as their
respective interests may appear (except with respect to workers' compensation
insurance); and (iv) shall contain an express waiver of any right of subrogation
by the insurance company against Landlord, and its agents, employees and
representatives which arises or might arise by reason of any payment under such
policy or by reason of any payment under such policy or by reason of any act or
omission of Landlord, its agents, employees or representatives. Neither the
issuance of any insurance policy required hereunder, nor the minimum limits
specified herein with respect to Tenant's insurance coverage, shall be deemed to
limit or restrict in any way Tenant's liability arising under or out of this
Lease. With respect to each and every one of the insurance policies herein
required to be procured by Tenant, on or before the Commencement Date and before
any such insurance policy shall expire, Tenant shall deliver to Landlord, upon
Landlord's written request, a duplicate original or certified copy of each such
policy or a certificate of the insurer, certifying that such policy has been
issued, providing the coverage required by this Section and containing
provisions specified herein, together with evidence of payment of all applicable
premiums. Any insurance required to be carried hereunder may be carried under a
blanket policy covering the Leased Premises and other locations of Tenant. Each
and every insurance policy required to be carried hereunder by or on behalf of
Tenant shall provide (and any certificate evidencing the existence of each such
insurance policy shall certify) that, unless Landlord shall first have been
given thirty (30) days' prior written notice thereof, the insurer will not
cancel, materially change or fail to renew the coverage provided by such
insurance policy. The term "insurance policy" as used herein shall be deemed to
include any extensions or renewals of such insurance policy. In the event that
Tenant shall fail to promptly furnish any insurance coverage hereunder required
to be procured by Tenant, Landlord, at its sole option, shall have the right
after ten (10) days prior written notice to Tenant to obtain the same and pay
the premium therefor for a period not exceeding one (1) year in each instance,
and the premium so paid by Landlord shall be immediately due and payable by
Tenant to Landlord as additional rent.
(c) Tenant shall not do or permit to be done any act or thing upon the
Leased Premises that will invalidate or be in conflict with fire insurance
policies covering the building containing the Leased Premises or any part
thereof. including all common areas, or fixtures and property therein, or any
other insurance policies or coverage referred to above in this Article VIII and
Tenant shall promptly comply with all rules, orders, regulations, and
requirements relating to such insurance policies, and shall not do. or permit
anything to be done, in or upon the Leased Premises, or bring or keep anything
therein, which shall increase the rate of fire insurance on the building in
which the Leased Premises are located or on any property, including all common
areas, located therein, or increase the rate or rates of any other insurance
referred to hereinabove. If 'any act or omission of Tenant, its agents,
employees or contractors shall result in any increase in the premium rates
applicable to any such insurance policies carried by Landlord, or other
increased costs to Landlord in connection therewith, then Tenant shall reimburse
Landlord on demand as additional rent for the amount of any increased rates or
costs. !n particular, if Tenant uses the Leased Premises for preparation of
food, Tenant shall reimburse Landlord, on demand, for any part of the premium
for insurance coverage under Section 8.1 hereof required to be paid on account
of such use of the Leased Premises.
Section 8.3. Mutual Covenant. Notwithstanding any provision of this Lease
to the contrary, each of Landlord and tenant hereby releases the other, its
officers, directors, employees, and' agents from any and all liability or
responsibility for any loss, damage or injury caused by fire or other casualty
for which insurance containing a waiver of subrogation is carried by the injured
party at the time of such loss, damage or injury regardless of the extent of any
recovery by the injured party under such insurance., Both parties agree to carry
casualty insurance containing such waiver of subrogation. Additionally, at any
time Tenant self-insures its insurance obligations hereunder, Tenant hereby
releases the Landlord, its officers, directors, employees and agents from any
and all liability or responsibility for any loss, damage or injury caused by
fire or other casualty, even if such loss, damage or casualty is caused in whole
or in part by Landlord or by any party for whom Landlord may be responsible.
Section 8.4. Covenant to Hold Harmless. Tenant hereby indemnifies and
agrees to hold harmless Landlord, its officers, directors, partners, ~ agents,
and any mortgagee or master lessor of the Shopping Center and/or the Retail
Development (herein, collectively, "Landlord's Indemnitees"), from and against
any and all claims, actions, damages, liability, cost and expense, including
attorneys' fees, that (i) arise from or are in connection with the possession.
use, occupancy, management, repair, maintenance or control of the Leased
Premises, or any portion thereof, or (ii) arise from or are in connection with
any act or omission of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, or (iii) result from any default, breach, violation or
nonperformance of this Lease or any provision hereof by Tenant, or (iv) result
from injury to person or property or loss of life sustained in or about the
Leased Premises. Tenant shall, at its own cost and expense, defend any and all
actions, suits and proceedings which may be brought against Landlord or any of
Landlord's Indemnitees with respect to the foregoing. Tenant shall pay, satisfy
and discharge any and all judgments, orders and decrees which may be received
against Landlord or any of Landlord's Indemnitees in connection with the
foregoing. In the event Landlord or any of Landlord's Indemnitees, shall,
without fault, be made a party to any litigation commenced by or against Tenant,
or if Landlord or any such party shall, in its sole discretion, intervene in
such litigation to protect its interest hereunder, then Tenant shall protect and
hold them harmless and shall pay all costs, expenses and attorneys' fees
incurred or paid by such party(ies) in connection with such litigation. SEE
ATTACHED RIDER FOR INSERTS
Section 8.5. Loss and Damage. All Tenant's property of every kind and
description which may at any time be in the Leased Premises shall be kept at
Tenant's sole risk, and Landlord shall not be liable to Tenant, its agents,
employees or customers, except to the extent resulting from the negligence or
intentional acts of Landlord, its agents or employees for any damage, loss,
compensation, accident, or claims whatsoever resulting to Tenant or
its property from the necessity of repairing any portion of the Shopping Center;
any interruption in the use of the Leased Premises; the use or operation (by
Landlord, Tenant, or any other person or persons whatsoever) of any elevators,
heating, cooling, electrical or plumbing equipment or apparatus; the termination
of this Lease by reason of the destruction of the Leased Premises; any fire,
robbery, theft, or any other casualty; any leakage in any part or portion of the
Leased Premises or the Shopping Center; any water, wind, rain or snow that may
leak into, or flow from part of the Leased Premises or the Shopping Center; any
acts or omissions of any occupant of any space adjacent to or adjoining all or
any part of the Leased Premises or any part of the building of which the Leased
Premises are a part; any explosion, casualty, utility failure or malfunction, or
falling plaster; the bursting, stoppage or leakage or any pipes, sewer pipes,
drains, conduits, appliance or plumbing works; or any other cause whatsoever.
ARTICLE IX
DESTRUCTION OF LEASED PREMISES
Section 9.1. Continuance of Lease. In the event of any damage to the Leased
Premises by fire or other casualty, this Lease shall not be terminated or
otherwise affected; except that, if more than twenty-five percent (25%) of the
square footage of the Leased Premises shall be damaged by any such fire or other
casualty during the last three (3) years of the term of this Lease (not
including any option or renewal periods) or during any renewal or extension of
the term hereof and the cost of repair or restoration exceeds Ten Thousand
Dollars ($10,000.00) as estimated by Landlord, or if Landlord is unable to
rebuild any portion of the building in which the Leased Premises are located or
of the Shopping Center due to any inability to obtain any required governmental
approval in connection therewith, or if more than thirty-five percent (35%) of
the floor area of the building in which the Leased Premises are located or of
the Shopping Center shall be damaged or destroyed by fire or other casualty, or
if all or any part of the building in which the Leased Premises are located or
if the Shopping Center or the Leased Premises shall be damaged or destroyed at
any time by the occurrence of any risk not insured under the insurance required
to be carried under Article VIII hereof, then Landlord shall have the option to
terminate this Lease within ninety (90) days following the occurrence of such
fire or other casualty by giving written notice to Tenant during such period. In
the event Landlord exercises any of the foregoing options to terminate, this
Lease shall immediately terminate upon Landlord's written notice to Tenant and
(a) the entire proceeds of the insurance provided for in Section 8.1 hereof
shall be paid by the insurance company or companies directly to Landlord and
shall belong to, and be the sole property of Landlord, (b) the portion of the
proceeds of the insurance provided for in Section 8.2 which is allocable to
equipment, fixtures and other items, which, by the terms of the Lease,
rightfully belongs to Landlord upon the termination of the Lease by whatever
cause, shall be paid by the insurance company or companies directly to Landlord,
and shall belong to, and be the sole property of Landlord, and (c) Landlord and
Tenant shall be relieved from any and all further liability or obligation
occurring under this Lease from and after the date of such termination. Tenant
hereby waives any and all rights which it may have to terminate this Lease by
reason of damage to the Leased Premises by fire or other casualty pursuant to
any presently existing or hereafter enacted statute or pursuant to any other
law.
Section 9.2. Reconstruction. If the Leased Premises are damaged by fire or
other casualty and this Lease is not terminated in accordance with Section 9.1
hereof, then all fire and extended coverage insurance proceeds from policies
carried pursuant to Section 8.1 hereof, however recovered, shall be held in
escrow and made available for payment of the costs of repairing, replacing and
rebuilding the Leased Premises, the damage to the Leased Premises shall be
promptly repaired, and the Minimum Rent and other charges payable by Tenant to
Landlord shall be abated in proportion to the floor area of the Leased Premises
rendered untenantable, and the Sales Break Point shall likewise be
proportionately reduced. Payment of full rental and all other charges so abated
shall commence and Tenant shall be obligated to reopen for business sixty (60)
days following the date that Landlord advises Tenant that the Leased Premises
are tenantable and Landlord has substantially completed Landlord's Work, unless
Tenant opens at an earlier time in the damaged area or remains open in such area
following destruction or damage, in which event there shall be no abatement or
any such abatement shall terminate as of the date of Tenant's earlier reopening.
Landlord shall be obligated to commence Landlord's Work and shall diligently
pursue the completion of Landlord's Work and shall cause the same to be
completed as soon thereafter as possible under the attendant circumstances, but
in any event all such Landlord's Work shall be completed and the Leased Premises
reopened for business within one hundred eighty (180) days following such fire
or casualty. After Landlord has completed Landlord's Work, Tenant shall commence
such Tenant's Work, at Tenant's expense. Tenant shall comply with all laws,
ordinances and governmental rules or regulations, and shall perform all work or
cause such work to be performed with due diligence and in a first-class manner.
All permits required in connection with said repairs, restoration and
reconstruction shall be obtained by Tenant, at Tenant's sole cost and expense.
Any amount expended by Tenant in excess of any insurance proceeds received by
Tenant shall be the sole obligation of Tenant. (deleted) in accordance with the
working drawings originally approved by Landlord or with (at Landlord's sole
election) new drawings prepared by Tenant and acceptable to Landlord and tenant.
In no event shall Landlord be required to repair or replace Tenant's
merchandise, trade fixtures, furnishings or equipment. If Landlord repairs or
rebuilds, Tenant, at Tenant's sole cost, shall repair or replace Tenant's
merchandise, trade fixtures, furnishings and equipment in a manner and to at
least a condition equal to that existing prior to the damage or destruction
thereof. Except as may be specifically set forth in this Article IX, Landlord
shall not be liable or obligated to Tenant to any extent whatsoever by reason of
any fire or other casualty damage to the Leased Premises, or any damages
suffered by Tenant by reason thereof, or the deprivation of Tenant's possession
of all or any part of the Leased Premises. In the event Landlord has not
commenced restoration or rebuilding the Leased Premises within ninety (90) days
of the date of such fire or casualty loss, or has not diligently proceeded to
complete such restoration or rebuilding so that the Leased Premises are
restored/rebuilt to its former condition prior to such fire or casualty loss
within one SEE ATTACHED RIDER FOR INSERTS
hundred eighty (180) days of the date of such fire or casualty loss, then Tenant
will have the right, in either case, to terminate this Lease by providing
Landlord notice of such election and Tenant will vacate and surrender the Leased
Premises pursuant to Section 17.1 hereof.
ARTICLE X
CONDEMNATION
Section 10.1. Eminent Domain. If fifty percent (50%) or more of the floor
area of the Leased Premises shall be taken or condemned by any governmental
authority (including, for purposes of this Article, any purchase by such
governmental authority in lieu of a taking), then either party may elect to
terminate this Lease by giving notice to the other party not more than ninety
(90) days after the date on which such title shall vest in the authority. If the
parking facilities are reduced below the minimum parking requirements imposed by
the applicable authorities, Landlord may elect to terminate this Lease by giving
Tenant notice within one hundred eighty (1 80) days after such taking. In
addition, if any Major Tenant shall terminate its lease with Landlord, pursuant
to a taking of its store, Landlord may terminate this Lease by written notice to
Tenant within ninety (90) days after notice to Landlord that such Major Tenant
is terminating its lease. In the case of any taking or condemnation, whether or
not the Term shall cease and terminate, the entire award shall be the property
of Landlord; provided, however, Tenant shall be entitled to any award as may be
made for trade fixtures and other equipment (not including any Tenant's Work
required or permitted under this Lease) which under the terms of this Lease
would not have become the property of Landlord; further provided, that any such
award to Tenant shall not be in diminution of any award otherwise to be made to
Landlord in the absence of such award to Tenant.
Section 10.2. Rent Apportionment. In the event of any taking or
condemnation, the then current Minimum Rent, Sales Break Point and the square
foot floor area in the Leased Premises as determined pursuant to Section 1.1
shall be apportioned as of the date when possession of the Leased Premises is
required to be delivered to the condemning authority or termination of this
Lease, as the case may be, and, if the Term shall not have ceased and been
terminated as of said date, Tenant shall be entitled to a pro rata reduction in
the Minimum Rent payable and Sales Break Point hereunder, or if Tenant has
prepaid Minimum Rent, Tenant shall be entitled to a pro rata credit for the
Minimum Rent paid hereunder, based on the proportion which the floor area taken
from the Leased Premises bears to the entire floor area of the Leased Premises
immediately prior to such taking.
Section 10.3. Temporary Taking. Notwithstanding anything to the contrary in
this Article X, requisitioning of the Leased Premises or any part thereof by
military or other public authority for purposes arising out of a temporary
emergency or other temporary situation or circumstances shall constitute a
taking of the Leased Premises by eminent domain when the use or occupancy by the
requisitioning authority is expressly provided to continue, or shall in fact
have continued, for a period of one hundred eighty (1 80) days or more. If the
Lease is not thereafter terminated under the foregoing provisions of this
Article X, then for the duration of any period of use and occupancy of the
Leased Premises by the requisitioning authority, all the terms and provisions of
this Lease and obligations of Tenant hereunder shall remain in full force and
effect, except that the Minimum Rent and Sales Break Point shall be reduced in
the same proportion that the floor area of the Leased Premises so requisitioned
bears to the total floor area of the Leased Premises, and Landlord shall be
entitled to whatever compensation may be payable from the requisitioning
authority for the use and occupation of the Leased Premises for the
period-involved.
ARTICLE Xl
ASSIGNMENT, SUBLETTING AND ENCUMBERING LEASE
Section 11.1. No Assignment, Subletting or Encumbering of Lease. (a)
Notwithstanding any references to assignees, subtenants, concessionaires or
other similar entities in this Lease, Tenant shall not (i) assign or otherwise
transfer, or mortgage or otherwise encumber, this Lease, in whole or in part, or
any of its rights hereunder, or (ii) sublet the Leased Premises or any part
thereof, or permit the use of the Leased Premises or any part thereof by any
persons other than Tenant or its agents. Any such attempted or purported
transfer, assignment, mortgaging or encumbering of this Lease or any of Tenant's
interest hereunder and any attempted or purported subletting or grant of a right
to use or occupy all or a portion of the Leased Premises in violation of the
foregoing sentence, whether voluntary or involuntary or by operation of law or
otherwise, shall be null and void and shall not confer any rights upon any
purported transferee, assignee, mortgagee, or occupant, and shall, at Landlord's
option, terminate this Lease without relieving Tenant of any of its obligations
hereunder for the balance of the stated term. Nothing contained elsewhere in
this Lease shall authorize Tenant to enter into any franchise, concession,
license, permit, subtenancy, departmental operation arrangements or the like,
except pursuant to the provisions of this Article Xl. Notwithstanding the
provisions of this Article Xl to the contrary, Landlord's consent shall not be
unreasonably withheld or delayed to an assignment of this Lease or a sublease of
all or any portion of the Leased Premises (by merger, consolidation or
otherwise) to another entity (the "Transferee") to which Tenant shall
simultaneously be transferring all or substantially all of its stock or all or
substantially all of its assets, provided that: (i) the number of stores being
transferred must consist of at least three (3) stores, (ii) Tenant shall not at
the time of such transfer be in default under any of the terms, covenants and
conditions of this Lease beyond any applicable grace period, (iii) such
Transferee shall agree in writing to perform all of the unperformed terms,
covenants and conditions of this Lease, and (iv) Tenant shall at all times
remain primarily obligated for the performance of the terms, covenants and
conditions of this Lease. Tenant shall also have the right, without Landlord's
consent, to assign this Lease or sublet the Leased Premises to its parent
corporation or any of its wholly-owned subsidiaries, or any affiliate or
subsidiary
of Tenant's parent corporation. In addition, Tenant may, without violating the
provisions of this Article XI, sell or offer for sale its voting stock to the
public in accordance with the qualifications or registration requirements of the
state where Tenant is incorporated and the Security Act of 1933, as amended.
(b) If Tenant is a corporation, the sale, issuance or transfer of any
voting capital stock of Tenant or of any corporate entity which directly or
indirectly controls Tenant (unless Tenant is a corporation whose stock is traded
(deleted)
which shall result in a change in the voting control of Tenant or the
corporate entity which controls Tenant shall be deemed to be a prohibited
assignment of this Lease within the meaning of this Article XI. If Tenant is a
partnership or unincorporated association, then the sale, issuance or transfer
of a majority interest therein, or the transfer of a majority interest in or a
change in the voting control of any partnership or unincorporated association or
corporation which directly or indirectly controls Tenant, or the transfer of any
portion or all of any general partnership or managing partnership interest,
shall be deemed to be a prohibited assignment of this Lease within the meaning
of this Article XI. The consent by Landlord to any assignment, transfer, or
subletting to any party shall not be construed as a waiver or release of Tenant
under the terms of any covenant or obligation under this Lease or as a waiver or
release of the non-assignability covenants in their future application, nor
shall the collection or acceptance of rent from any such assignee, transferee,
subtenant or occupant constitute a waiver or release of Tenant of any covenant
or obligation contained in this Lease. SEE ATTACHED RIDER FOR INSERTS (1)
Notwithstanding anything herein contained to the contrary, a sale or transfer of
any voting capital stock of Tenant when caused by death (e.g. testamentary
transfer) or for estate planning purposes (e.g. inter vivos trust) will not be
deemed a prohibited assignment of the Lease.
(2) The provisions of this Section 11.1(b) shall not be deemed to prohibit
the transfer of limited partnership interests among existing limited or general
partners; however, if either general partner ceases to remain a general partner
of Tenant, such occurrence shall be deemed a prohibited assignment of this Lease
under the meaning of Article XI.
(c) Without conferring any rights upon Tenant not otherwise provided in
this Article XI, should Tenant desire to enter into an assignment, sublease or
transfer of this Lease or Tenant's rights hereunder, Tenant shall request in
writing Landlord's consent to the assignment at least thirty (30) days before
the proposed effective date of the assignment, providing the following: (1) the
full particulars of the proposed assignment, sublease or transfer of this Lease
or Tenant's rights hereunder, including its nature, effective date, terms and
conditions, and copies of any offers, draft agreements, subleases, letters of
commitment or intent and other documents pertaining to the proposed assignment;
(2) a description of the identity, net worth and previous business experience of
the proposed transferee, including, without limitation, copies of the proposed'
transferee's latest income, balance sheet and changes in financial position
statements (with accompanying notes and disclosures of all material changes
thereto) in audited form, if available, and certified as accurate by the
proposed transferee: and (3) any further information relevant to the proposed
assignment which Landlord shall request after receipt of Tenant's request for
consent. Tenant shall, concurrently with any request for Landlord's consent, pay
to Landlord a fee in the sum of One Thousand and 00/lOOths Dollars ($1,000.00)
for Landlord's review and processing of such request and Landlord shall not be
obligated to review such request prior to Landlord's receipt of such fee. All
requests for consent to assignment, sublease or transfer shall be forwarded to
Landlord at the address provided above and to the on-site mall management
office, if applicable.
(d) Except for a permitted assignment or subletting as specified in Section
11.1(a) and (b), and without conferring any rights upon Tenant not otherwise
provided in this Article Xl, in the event of an assignment or transfer of
Tenant's interest in this Lease, or a sublease of all or a portion of the Leased
Premises, to a third party, any monthly rent or other payment accruing to Tenant
as a result of any such assignment, transfer, or sublease, including any lump
sum or periodic payment in any manner relating to such assignment, transfer or
sublease, which is in excess of the rent then payable by Tenant under the Lease
shall be paid one-half of such excess by Tenant to Landlord monthly as
additional rent. Landlord may require a certificate from Tenant specifying the
full amount of any such payment of whatsoever nature. Notwithstanding any
assignment, subletting or transfer of this Lease or Tenant's rights hereunder,
Tenant shall remain fully liable on this Lease and for the performance of all
terms, covenants and provisions of this Lease.
(e) All reasonable costs and expenses, including attorneys' fees (which
shall include the cost of any time expended by Landlord's attorneys, including
in-house counsel) incurred by Landlord in connection with any proposed or
purported assignment, transfer or sublease shall be borne by Tenant and shall be
payable to Landlord as additional rent. It is understood and agreed that the
restrictions set forth in this Article are of primary importance in enabling
Landlord to control the mix of tenants in the Shopping Center.
Section 11.2. Assignment or Sublet. If this Lease is transferred or
assigned, in whole or in part, as aforesaid, or if the Leased Premises or any
part thereof be sublet or occupied by any person or entity other than Tenant,
whether as a result of any act or omission by Tenant, or operation of law, or
otherwise, then Landlord, whether before or after default by Tenant, may, in
addition to, and not in diminution of or substitution for, any other rights and
remedies under this Lease or pursuant to law to which Landlord may be entitled
as a result thereof, collect rent from the transferee, assignee, subtenant or
occupant and apply the net amount collected to the Rent herein reserved, but no
such transfer, assignment, subletting, occupancy or collection shall be deemed a
waiver of the covenants contained herein or the acceptance of the transferee,
assignee, subtenant, or occupant as Tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant set forth in
this Lease.
Section 11.3. Transfer of Landlord's Interest. In the event of any transfer
of Landlord's interest in the Leased Premises, including a sale or lease. the
transferor shall be automatically relieved of any and all obligations on the
part of Landlord accruing from and after the date of such transfer, provided
that (a) the interest of the transferor, as Landlord, in any funds then in the
hands of Landlord in which Tenant has an interest shall be turned over, subject
to such interest. to the then transferee; and (b) notice of such sale, transfer
or lease shall be delivered to Tenant as required by law.
ARTICLE XII
SUBORDINATION, ATTORNMENT. FINANCING AND ESTOPPEL CERTIFICATE
Section 12.1. Subordination. Tenant agrees that this Lease shall, at the
request of Landlord, be subordinate to any mortgages or deeds of trust that are
now, or may hereafter be, placed upon the Leased Premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof. provided that the mortgagees or
beneficiaries named in said mortgages or trust deeds shall agree to recognize
the interest of Tenant under this Lease in the event of foreclosure, if Tenant
is not then in default. Tenant also agrees that any mortgagee or beneficiary may
elect to have this Lease constitute a prior lien to its mortgage or deed of
trust, and in the event of such election and upon notification by such mortgagee
or beneficiary to Tenant to that effect, this Lease shall be deemed prior in
lien to its mortgage or deed of trust, whether this Lease is dated prior or
subsequent to the date of said mortgage or deed of trust. Tenant agrees that,
upon the request of Landlord, or any mortgagee or beneficiary, Tenant shall
execute whatever reasonable instruments may be required to carry out the intent
of this Section 1 2.1 and Section 12.2.
Section 12.2. Attornment. In the event any proceedings are brought for the
foreclosure of, or in the event of the conveyance by deed in lieu of foreclosure
of, or in the event of exercise of the power of sale under, any mortgage and/or
deed of trust made by Landlord covering the Leased Premises, or in the event
Landlord sells, conveys or otherwise transfers its interest in the Shopping
Center or any portion thereof containing the Leased Premises, Tenant hereby
attorns to, and covenants and agrees to execute and deliver an instrument or
instruments in writing whereby Tenant attorns to such successor-in-interest and
recognizes such successor as Landlord under this Lease. In such case, the
successor to Landlord's interest under such mortgage or deed of trust shall not
be bound by any prepayment on the part of Tenant of any rent for more than one
month in advance (except prepayments in the nature of a security deposit), so
that rent shall be payable under this Lease in accordance with its terms, from
the date of the foreclosure of such mortgage or deed of trust, as if such
prepayment had not been made. Such successor to Landlord's interest under such
mortgage or deed of trust shall not be bound by any amendment or modification of
this Lease unless, prior to the foreclosure of such mortgage or deed of trust,
such successor to Landlord's interest shall have first consented in writing to
any such amendment or modification. Payment by or performance of this Lease, by
any person, firm or corporation claiming an interest in this Lease or the Leased
Premises by, through or under Tenant without Landlord's consent in writing shall
not constitute an attornment or create any interest in this Lease or the Leased
Premises.
Section 12.3. Financing. In any event any construction lender, land lessor,
or the permanent lender for the Shopping Center requires, as a condition to
financing, modifications to this Lease, then, provided such modifications do not
materially alter the approved working plans and do not increase the Rent to be
paid hereunder, Landlord shall submit to Tenant a written amendment with such
required modifications and. if Tenant fails to execute and return the same
within thirty (30) days after the amendment has been submitted. Landlord shall
be entitled to its remedies as specified in Section 1 2.5. Nothing herein shall
require Tenant to execute an amendment or amendments to accomplish changes which
would (i( change the Minimum Rent, additional rent or Percentage Rent payable by
Tenant; (ii) change the Permitted Use; (iii) change the size, dimensions or
location of the Leased Premises; (iv) change the length of the Term; (v) change
Landlord's construction obligations; (vi) change the conditions precedent as to
Tenant's initial opening requirements, or (vii) place a lien on Tenant's assets.
Section 12.4. Estoppel Certificate. Tenant shall, without charge therefor,
at any time and from time to time, within thirty (30) days after request
therefor by Landlord, execute, acknowledge and deliver to Landlord a written
estoppel certificate, in reasonable form, certifying to Landlord, any mortgagee,
or any purchaser of the Shopping Center or any other person designated by
Landlord, as of the date of such estoppel certificate: (i) that Tenant is in
possession of the Leased Premises and has unconditionally accepted the same;
(ii) 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 setting forth such modifications); (iii) whether or not there are then
existing any set-offs or defenses against the enforcement of any right or remedy
of Landlord, or any duty or obligation of Tenant, hereunder (and, if so,
specifying the same in detail); (iv) that rent is paid currently without any
offset or defense thereto, (v) the dates, if any, to which any rent has been
paid in advance; (vi) whether or not there is then existing any claim of
Landlord's default under this Lease and if so, specifying the same in detail;
and (vii) that Tenant has no knowledge of any event having occurred that
authorized the termination of this Lease by Tenant or if Tenant has such
knowledge, specifying the same in detail); and (viii) any other matters relating
to the status of this Lease that Landlord or its mortgagee may request to be
confirmed, provided that such facts are accurate and ascertainable. Landlord
shall, within thirty (30) days after written request from Tenant, no more often
than once in any year, and provided Tenant is not then in default hereunder,
deliver to Tenant, or such persons as Tenant may designate, a statement in
writing certifying to the extent true that: (i) Tenant is in possession of the
Leased Premises; (ii) this Lease is in full force and effect (as later modified,
if such be the case); (iii) the rentals due hereunder are current; and (iv)
that, to the best of Landlord's knowledge, information and belief, Tenant is not
in default hereunder.
Section 12.5. Remedies. Any failure by Tenant to execute any certificate,
statement or instrument in accordance with the foregoing provisions of this
Article or any financing statement in accordance with the provisions of Section
14.2(a), within the time period provided or if no time period is specified, then
within thirty (30) days after written request, shall constitute an irrevocable
power of attorney appointing and designating Landlord or its successors or
assigns ac attorney-in-fact for Tenant, to execute and deliver such certificate,
statement, instrument or financing statement.
ARTICLE XIII
ADVERTISING AND PROMOTION
Section 13.1. Promotion Fund. Landlord shall establish an advertising and
promotion fund (the "Fund"). The object of the Fund shall be to advertise the
Retail Development and to provide a program of events, all of which shall, in
Landlord's judgment, serve to enhance and promote the Retail Development and its
occupants. Such program of events may include the promotion of coach traffic to
the Retail Development and the development of a mall video network within the
Retail Development offering a program of information, entertainment and
advertisements. The Fund shall be administered by Landlord and the costs and
expenses of such administration shall be charged to the Fund. Landlord shall
expend all amounts paid to the Fund by the tenants in the Retail Development for
the purposes herein set forth.
Section 13.2. Promotion Fund Contribution. Tenant's annual contribution to
the Fund shall be the Fund Contribution (reduced proportionately for a partial
Lease Year) as defined on the Data Sheet. (deleted)
the Grand Opening, Tenant shall also pay Tenant's one-time initial
contribution or Grand Opening Fee which is equal to the annual Fund
Contribution. The Fund Contribution payable by Tenant for each Lease Year shall
be increased commencing with the second Lease Year of the Term, and each Lease
Year thereafter, by a percentage equal to the percentage increase from the "base
period" of the Consumer Price Index (as defined in Section 20.1 2 hereof) to the
"current period" of the Index of the Lease Year for which the adjustment is
being made. Except as herein expressly provided, the term "base period" shall
initially refer to the Index published for the month of October immediately
preceding the Lease Year for which the Fund Contribution was last adjusted
hereunder. The "current period" of the Index shall refer to the Index published
for the month of October immediately preceding the Lease Year for which an
adjustment is being made. In the event the Index shall not be published for any
of the above-described months, then the Index published for the month closest,
but prior, to the described month shall be used in its place. The annual Fund
Contribution shall be payable by Tenant to Landlord, or as Landlord may direct,
in twelve (12) equal monthly installments, commencing on the Commencement Date,
at the same time and in the same manner as the monthly installments of Minimum
Rent are payable. SEE ATTACHED RIDER FOR INSERTS
Section 13.3. Advertisements.
Section 13.4. Network. Landlord may cause to be developed a mall video
network within the Retail Development (the "Network"). The object of the Network
shall be to provide a program of information, entertainment and advertisements,
which shall, in Landlord's judgment, serve to enhance or promote the Retail
Development and its occupants. The Network shall have the right to sell
available time and access on the Network for advertisements or other uses. The
Network shall be under the sole and exclusive direction of Landlord and shall be
administered by Landlord. The costs and expenses paid or incurred by Landlord
for administering, operating, equipping, staffing, protecting, insuring,
repairing, replacing and maintaining the Network shall be charged to the Fund.
During the initial year of the Term and provided Tenant is not in default of
payment of its Fund contribution, Landlord agrees to produce, or cause to be
produced a video taped advertising message of the business conducted, or to be
conducted, in the Leased Premises (herein "Tenant Video") in accordance with the
terms of this Section. The Tenant Video shall (i) identify Tenant's type of
business in the Leased Premises, Tenant's trade name and the address/location of
the Leased Premises within the Retail Development; (ii) be approximately fifteen
(15) seconds in duration; (iii) be produced on one occasion only following the
initial opening of the Leased Premises for business; (iv) be produced in the
Leased Premises, Landlord's studio or both; (v) utilize one from a select group
of advertising message formats as mutually selected by Landlord and Tenant; and
(vi) not contain any lewd, obscene or offensive content or material. The Tenant
Video will be shown on the Network a reasonable number of times, not to exceed
one hundred (100), during a two (2) week period in the first year of the Term.
Landlord shall use reasonable efforts to air Tenant Videos at varying times and
days during such two (2) week period. Any further production by Landlord of
advertising messages for Tenant and any further air time on or access to the
Network is subject to availability, as determined solely by Landlord, and shall
be at the then applicable rates and fees set by Landlord. Landlord shall have
the right to reject, remove or discontinue showing any Tenant Video or
advertising message on the Network the content of which is, in the opinion of
Landlord, unethical, misleading, in bad taste, or shall tend to injure the
reputation of the Retail Development or its occupants, or shall be deemed to be
detrimental to the Retail Development, or is in violation of any applicable
rule, law or existing agreement with occupant(s) of the Retail Development.
Tenant acknowledges that Tenant shall be solely responsible for the content of
its Tenant Video and, except with respect to the gross negligence of Landlord
and the Network, Tenant agrees to save harmless Landlord, its officers,
directors, partners, employees and agents from and against any and all claims,
actions, damages, liability, cost or expense, including attorneys' fees that
arise from or with respect to the content of such advertising message, including
without limitation any claims for infringement of the intellectual property
rights of others or actions for unfair competition. Landlord reserves the right
at any time to dissolve the Network and cease providing its promotional services
as well as Tenant Videos and in lieu thereof, to provide, or cause to be
provided, a program of advertising and promotional events which, in Landlord's
sole judgment, will serve to promote the Retail Development and its occupants.
ARTICLE XIV
DEFAULT AND REMEDIES
Section 14.1. Elements of Default. If any one of more of the following
events occur, said events shall hereby be classified as a "default": (a) (i) the
failure of Tenant to take possession of the Leased Premises at the Delivery of
Possession Date, (ii) the failure of Tenant to open its doors for business on
the date specified in Section 1.2 hereof, (iii) if Tenant vacates or abandons
the Leased Premises and permits the same to remain unoccupied and unattended,
(iv) if Tenant fails to maintain normal inventory levels and employee staff for
the conduct of its normal business activities in the Leased Premises, (v) if
Tenant fails to continuously operate its business in compliance with Section 4.2
hereof, (vi) if Tenant fails to operate for the purposes specified in Section
4.1 hereof, (vii) in the event of the sale or removal of a substantial portion
of Tenant's property located in the Leased Premises in a manner which is outside
the ordinary course of Tenant's business; (b) the failure of Tenant to pay any
Rent or other charges required to be paid by Tenant when same shall become due
and payable hereunder and such failure continues for ten (10) days after written
notice; (c) the failure of Tenant to perform or observe any term or condition of
this Lease (including the obligation specified in Section 14.3) and such failure
shall continue for thirty (30) days after written notice; (d)
if any writ of execution, levy, attachment or other legal process of law
shall occur upon Tenant's assets, merchandise, fixtures, or Tenant's estate or
interest in the Leased Premises; (f) if Tenant shall be liquidated or dissolved
or shall begin proceedings toward such liquidation or dissolution, or shall in
any manner permit the divestiture of all, or any substantial part of Tenant's
assets; (g) Landlord and Tenant acknowledge that Tenant or the parent,
subsidiary or affiliate of Tenant (by virtue of common ownership or control,
direct or indirect) has presently, or may in the future, enter into lease
agreements with Landlord (or with any person or entity which is affiliated with
Landlord, or which directly or indirectly controls or is controlled by, or is
under common control with Landlord, or which is managed by the managing agent
utilized by Landlord for the Shopping Center) (such leases to be referred to as
"other leases"), and, in the event of "~ which shall not be remedied within the
applicable grace period, if any, by Tenant under this Lease or by the tenant in
any of the "other leases", then Landlord may, upon notice in writing to Tenant,
declare such default to be a default of this Lease and, at Landlord's option, a
default of any of the "other leases", as the case may be. Nothing contained
herein shall be deemed a limitation of the rights of Landlord as set forth in
this Lease or any of the "other leases". SEE ATTACHED RIDER FOR INSERTS
Section 14.2. Landlord's Remedies. In the event of any such default or
breach by Tenant. Landlord may, at any time thereafter, with or without further
notice by demand and without limiting Landlord in the exercise of any right or
remedy which Landlord may have by reason of such default or breach:
(a) (deleted)
(b) Perform, on behalf and at the expense of Tenant, any obligation of
Tenant under this Lease which Tenant has failed to perform and of which Landlord
shall have given at least three (3) days' notice (except in the case of
emergency, in which event no such notice shall be required), the cost of which
performance by Landlord, t9gether with interest therein at the Default Interest
Rate from the date of such expenditure, shall be deemed additional rent and
shall be payable by Tenant to Landlord upon demand.
(c) Re-enter and repossess the Leased Premises, by summary proceedings or
otherwise, and remove Tenant and all other persons and property from the Leased
Premises, and store such property in a public warehouse or elsewhere at the cost
of for the account of Tenant without resort to legal process and without
Landlord being deemed guilty of trespass or conversion or becoming liable for
any loss or damage occasioned thereby. In connection herewith, Landlord shall
have, in addition to any other remedies, any and all self-help remedies,
including, but not limited to, a forcible entry into the Leased Premises or a
"lock-out" accomplished by changing the locks on the Leased Premises,
(d) Declare the entire balance of the Rent, and all other amounts to be
paid by Tenant hereunder for the remainder of the Term to be due and payable
immediately, and collect such balance in any manner not inconsistent with
applicable law. The amount of additional rent and Percentage Rent payable with
respect to each Lease Year
remaining in the Term after such default (including the Lease Year during which
such default occurred) shall be conclusively presumed to be equal to the average
additional rent and Percentage Rent payable with respect to each completed Lease
Year preceding such default; provided, however, that if such default occurs
before the expiration of two (2) Lease Years, then the amount of additional rent
and Percentage Rent payable with respect to each Lease Year remaining in the
Term after such default (including the Lease Year or partial Lease Year during
which such default occurred) shall be conclusively presumed to be equal to
twelve (12) times the average monthly additional rent and Percentage Rent
payable prior to such default.
le) Terminate this Lease by giving notice of such termination to Tenant,
which termination shall be effective as of the date of such notice or any later
date thereof specified by Landlord in such notice (provided, that, without
limiting the generality of the foregoing provisions, Landlord shall not be
deemed to have accepted any abandonment or surrender by Tenant of any or all of
the Leased Premises or Tenant's leasehold estate under this Lease unless
Landlord has so advised Tenant expressly and in writing, regardless of whether
Landlord has re-entered or relet any or all of the Leased Premises or exercised
any or all of Landlord's other rights under this Lease or applicable law).
(f) In Landlord's own name, or otherwise, relet any and all of the Leased
Premises with or without any additional premises, for any or all of the
remainder of the Term (or, if this Lease has then been terminated, for any or
all of the period which would, but for such termination, have constituted the
remainder of the Term) or for a period exceeding such remainder, on such terms
and subject to such conditions as are acceptable to Landlord (including, by way
of example rather than of limitation, the alteration of any or all of the Leased
Premises in any manner which, in Landlord's judgment, is necessary or desirable
in connection with such reletting, and the allowance of one or more concessions
or "free-rent" or reduced-rent periods), and collect and receive the rents
thereof. Tenant shall pay to Landlord, at the times and in the manner specified
by the provision of this Lease (unless Landlord has elected to accelerate Rent
as provided above in subparagraph (d), in which event Tenant shall be obligated
to pay such accelerated amount as provided in such subparagraph), (i) the
installments of the Minimum Rent, additional rent and Percentage Rent accruing
during such remainder of the Term (or, if this Lease has then been terminated,
damages equaling the respective amounts of such installments (determined as
provided in subparagraph 14.2(d) which would have accrued during such remainder,
had this Lease not been terminated), plus (ii) the cost to Landlord of any such
reletting (including, by way of example rather of limitation, any attorneys'
fees, leasing or brokerage commissions, repair or improvement expenses and the
expense of any other actions taken in connection with such reletting) less any
monies received by Landlord with respect to such remainder from such reletting
of any and all of the Leased Premises.
(g) Recover from Tenant, an amount equal to (i) all items of accrued and
unpaid Rent, (ii) all reasonable expenses (including, by way of example rather
than 6f limitation, all repossession costs, management expenses, operating
expenses, legal expenses and attorneys' fees) incurred by Landlord in curing or
seeking to cure any default or in exercising or seeking to exercise any of
Lessor's rights any remedies under the provisions of this Lease or at law or in
equity on account of any default, plus (iii) interest on all such expenses, at
the rate provided in Section 20.13, all of which expenses and interest shall be
payable by Tenant immediately on demand therefor by Landlord.
(h) Without terminating this Lease, maintain Tenant's rights to possession,
in which case this Lease shall continue to be in effect whether or not Tenant
shall have vacated the Leased Premises. In such event, Landlord shall be
entitled to enforce all of Landlord's rights and remedies under this Lease,
including the right to recover Rent as it become due hereunder.
(i) Any damage or loss of Rent sustained by Landlord may be recovered by
Landlord, at Landlord's option, at the time of the reletting or termination, in
a single action or in separate actions, from time to time, as said loss of Rent
or damages shall accrue, or in a single proceeding deferred by Landlord or with
jurisdiction reserved by the court, until expiration of the Term of this Lease
(in which event Tenant hereby agrees that, at Landlord's option, the cause of
action shall not be deemed to have accrued until the date of expiration of said
Term).
(j) Nothing contained herein shall prevent the enforcement of any claim
Landlord may have against Tenant for anticipatory breach of this Lease. In the
event of any anticipatory breach by Tenant of any of the covenants or provisions
hereof or in the event of Tenant's default, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not provided for herein.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy under this Lease or, at law or in equity. Tenant hereby
expressly waives for itself and all persons claiming by or through Tenant, any
and all rights to redeem, reinstate or restore, or obtain relief from forfeiture
of this Lease granted by or under any present or future law in the event of
Tenant being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the Leased Premises by reason of the violation by Tenant
of any of the covenants and conditions of this Lease.
(k) In case suit shall be brought for recovery of the Leased Premises, for
the recovery of Rent or any other amount due under the provisions of this Lease,
or because of the breach of any other covenant herein contained on the part of
Tenant to be kept and performed, and a breach shall be established, Tenant shall
pay to Landlord all costs and expenses incurred therefor, including Landlord's
attorney's reasonable fees and expenses.
(II Nothing herein contained shall limit or prejudice Landlord's right to
prove and obtain as damages, by reason of any default by Tenant, an amount equal
to the maximum allowed by statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved. No expiration
or termination of this Lease, abandonment, re-entry by Landlord or vacancy,
shall relieve Tenant of any of its liabilities and obligations under this Lease
(whether or not any or all of the Leased Premises are relet), and Tenant shall
remain
liable to Landlord for all damages resulting from any default by Tenant.
including any damage resulting from the breach by Tenant of any of its
obligations to pay Minimum Rent, Percentage Rent, additional rent and any other
sums which Tenant is obligated to pay hereunder.
(m) The rights and remedies of Landlord under this Lease shall be deemed to
be cumulative, and no one of such rights or remedies shall be exclusive at law
or in equity of the other rights and remedies of Landlord on account of a
default by Tenant, and the exercise of any one such right or remedy by Landlord
shall not impair Landlord's standing, right or power to exercise any other right
or remedy.
Section 14.3. Bankruptcy. (a) Neither Tenant's interest in this Lease, nor
any estate hereby created in Tenant nor any interest herein or therein, shall
pass to any trustee or receiver of assignee for the benefit of creditors or
otherwise by operation of law, except as may specifically be provided pursuant
to the Bankruptcy Code (11 USC ss. 101 et ~.), as the same may be amended from
time to time.
(b) Rights and Obligations Under Bankruptcy Code. (1) It is understood and
agreed that this Lease is a lease of real property in a Shopping Center as such
lease is described in Section 365 of the Bankruptcy Code, as the same may be
amended from time to time. (2) Upon the filing of a petition by or against
Tenant under the Bankruptcy Code, Tenant, as debtor and as debtor-in-possession,
and any trustee who may be appointed with respect to the assets of or estate in
bankruptcy of Tenant, agree to pay monthly in advance on the first day of each
month, as reasonable compensation for the use and occupancy of the Leased
Premises, an amount equal to all Minimum Rent, additional rent and other charges
otherwise due pursuant to this Lease, and to pay Percentage Rent monthly, at the
Percentage Factor set forth in this Lease for the Lease Year in which such month
falls, on all of the Gross Sales during such month in excess of one-twelfth
(1/12th) of the Sales Break Point for such Lease Year; payment of all such
Percentage Rent to be made by the tenth (10th) day of the succeeding month. (3)
Included within and in addition to any other conditions or obligations imposed
upon Tenant or its successor in the event of the assumption and/or assignment of
this Lease are the following: (i) the cure of any monetary defaults and
reimbursement of pecuniary loss within not more than thirty (30) days of
assumption and/or assignment; (ii) the deposit of an additional sum equal to not
less than three (3) months' Minimum Rent and additional rent to be held pursuant
to the terms of Section 2.4 of this lease, which sum shall be determined by
Landlord, in its sole discretion, to be a necessary deposit to secure the future
performance under the Lease of Tenant or its assignee; (iii) the use of the
Leased Premises as set forth in Section 4.1 of this Lease and the quality,
quantity and/or lines of merchandise, goods or services required to be offered
for sale are unchanged; and (iv) the prior written consent of any mortgagee to
which this Lease has been assigned as collateral security.
Section 14.4. Additional Remedies and Waivers. The rights and remedies of
Landlord set forth herein shall be in addition to any other right and remedy now
or hereafter provided by law, including but not limited to the statutes, rules,
regulations and judicial decisions of the State, and all such rights and
remedies shall be cumulative. No action or inaction by Landlord shall constitute
a waiver of a default or termination and no waiver of default or termination
shall be effective unless it is in writing, signed by Landlord.
Section 14.5. Landlord's Cure of Default. If Tenant shall be in default
hereunder, Landlord shall have the option, but not the obligation, upon three
(3) days written notice to Tenant (except in the event of any emergency, in
which even no notice shall be required), to cure the act or failure constituting
said default for the account of and at the expense of Tenant. Landlord's cure or
attempt to cure any act or failure constituting the default by Tenant shall not
result in a waiver or release of Tenant. Tenant agrees to pay Landlord interest,
in accordance with Section 20.1 3 hereof, on all sums expended by Landlord
pursuant to this Section 14.5 from the date of such expenditure, and Tenant
agrees to pay the costs incurred by Landlord pursuant to this Section 14.5, plus
a charge of fifteen percent (15%) of such costs, to Landlord upon demand, as
additional rent.
ARTICLE XV
RIGHT OF ACCESS
Landlord may, at any reasonable time or times, upon prior notice to Tenant
(except in the event of an emergency, or if Tenant is in default under this
Lease, in which event no notice shall be required), before and after the
Commencement Date, enter upon the Leased Premises, any portion thereof and any
appurtenance thereto (with men and materials, if required) for the purpose of:
(a) inspecting the same; (b) making such repairs, replacements or alterations
which Landlord may be required to perform as herein provided or which it may
deem desirable for the Leased Premises; and (c) showing the Leased Premises to
prospective purchasers, lenders or lessees. Landlord hereby expressly reserves
the right, exercisable at any time and from time to time, to erect, use,
maintain and repair pipes, conduits, plumbing, vents, ducts and wires in, to,
under and through the Leased Premises as and to the extent that Landlord may now
or hereafter deem to be necessary or appropriate for the proper operation and
maintenance of the Shopping Center. Any redecorating or repair necessitated by
reason of location of same within the Leased Premises shall be the
responsibility of Landlord. Landlord agrees to hold Tenant harmless from any
damage or injury to person or property to the extent resulting from Landlord
exercising its rights under this Article XV. In the exercise of its rights under
this Article XV, Landlord shall use reasonable efforts to avoid material
interference with the operation of Tenant's business within the Leased Premises.
Landlord agrees that, except in the event of an emergency, and provided Tenant
shall make an employee of Tenant available to accompany Landlord following
Landlord's notice to Tenant of the necessity therefor, Landlord shall not enter
the Leased Premises during the Term without an employee of Tenant accompanying
Landlord's representative.
DELAYS
If Landlord or Tenant is delayed or prevented from performing any of their
respective obligations during the term of this Lease because of strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
governmental restrictions or reasons of a like nature not the fault of the party
delayed in performing such obligation, then the period of such delays shall be
deemed added to the time herein provided for the performance of any such
obligation and the defaulting party shall not be liable for losses or damages
caused by such delays; provided, however, that, subsequent to the Commencement
Date, this Article shall not apply to the payment of any sums of money required
to be paid by Tenant hereunder or any obligation of Landlord or Tenant that can
be satisfied by the payment of money, and shall not excuse Tenant from its
obligation to continuously operate its business within the Leased Premises in
accordance with the provisions of Section 4.1 and 4.2 hereof.
SEE ATTACHED RIDER FOR INSERTS
ARTICLE XVII
END OF TERM
Section 17.1. Return of Leased Premises. Upon the expiration or sooner
termination of the term of this Lease, Tenant shall quit and surrender to
Landlord the Leased Premises, broom-clean, in good order and condition, ordinary
wear and tear excepted, and shall surrender to Landlord all keys to or for the
Leased Premises and inform Landlord of all combinations of locks, safes and
vaults, if any, in the Leased Premises. Subject to the provisions of Section 3.5
hereof, Tenant, at its expense, shall promptly remove all personal property of
Tenant, repair all damage to the Leased Premises caused by such removal and
restore the Leased Premises to the condition which existed prior to the
installation of the property so removed. Any personal property of Tenant not
removed within ten (10) days following the expiration or earlier termination of
the Lease shall be deemed to have been abandoned by Tenant and to have become
the property of Landlord, and may be retained or disposed of by Landlord, as
Landlord shall desire. Tenant's obligation to observe or perform the covenants
set forth in this Section shall survive the expiration or termination of this
Lease.
Section 17.2. Holding Over. If Tenant shall hold possession of the Leased
Premises after the expiration or termination of this Lease, at Landlord's option
(a) Tenant shall be deemed to be occupying the Leased Premises as a tenant from
month-to-month, at one hundred fifty percent (150%) of the Minimum Rent and
other charges in effect during the last Lease Year immediately preceding such
holdover and otherwise subject to all of the terms and conditions of this Lease,
or (b) Landlord may exercise any other remedies it has under this Lease or at
law or in equity including an action for wrongfully holding over.
Notwithstanding the foregoing, if Tenant is negotiating in good faith with
Landlord to renew or extend the Term for the Leased Premises (or a relocation
within the Shopping Center), then Tenant may occupy the Leased Premises on a
month-to-month tenancy at 1/12th of the annual Minimum Rent for the last year of
the Term.
ARTICLE XVIII
COVENANT OF QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant pays the Rent and all
other charges provided for herein, and performs all of its obligations provided
for herein, Tenant shall, at all times during the Term peaceably have, hold and
enjoy the Leased Premises, without any interruption or disturbance from
Landlord, or anyone lawfully or equitably claiming through or under Landlord,
subject to the terms hereof and any mortgage or deed of trust to which this
Lease shall be subordinate.
ARTICLE XIX
UTILITIES
Section 19.1. Utilities. Tenant agrees to connect to and use the utilities
(including electricity, water, gas, heat, condenser water, telephone and any
other utility) supplied to the Leased Premises in accordance with the criteria
set forth in the Exhibits attached to this Lease, Landlord's schedule of
mechanical and electrical design criteria, Landlord's rules and regulations, and
the rules and regulations of the utility companies supplying the service. Tenant
shall be solely responsible for and promptly pay all costs and charges,
including installation thereof where applicable, for all water, gas, heat,
electricity, sewer and other utilities provided or used in or at the Leased
Premises, commencing with the Delivery of Possession Date and continuing
throughout the Term. If Landlord shall elect to supply any of the utilities used
upon or furnished to the Leased Premises, Tenant agrees to pay Tenant's share of
Landlord's hard and soft costs associated with the installation, operation,
maintenance and repair of such utility systems, based on Tenant's estimated
usage and its pro rata share of such hard and soft costs as reflected on a
monthly invoice to be provided by Landlord; provided, however, in no event shall
Tenant's total charges for utilities provided by Landlord exceed what Tenant
would be charged by the local utility company it if were billed directly by such
utility as a direct retail customer. Landlord shall not be liable to Tenant for
any loss, damage or expense which Tenant may sustain if the utilities, or the
quality or character of utilities used upon or furnished to the Leased Premises
are no longer available or suitable for Tenant's requirements, or if the supply
of any such utility
ceases or is interrupted as a result of any cause and no such change,
interruption or cessation of service shall constitute an eviction of Tenant. Any
furnishing by Landlord of light, condenser water, heat, air conditioning or
power shall be conditioned upon the availability of adequate energy sources.
Landlord shall have the right to reduce heat, condenser water, lighting and air
conditioning within the Shopping Center, including, without limitation, the
Leased Premises and the common areas, as required by any mandatory or voluntary
fuel or energy saving allocation, or any similar statute, regulation, order or
program. SEE ATTACHED RIDER FOR INSERTS
Section 19.2. Electricity, Telephone and Gas. All telephone, electric and
gas (with gas being available only to food service tenants) utility required by
Tenant for the Leased Premises shall (if available) be obtained by Tenant in
accordance with Exhibit "D" and shall be installed by the appropriate company or
utility. All charges for such utility service (including the installation
thereof) shall be paid by Tenant directly to the company or utility providing
any such service, as and when they become due and payable.
Section 19.3. Trash and Garbage Removal. Tenant shall be solely responsible
for trash and garbage removal from the Leased Premises including the placing of
all trash and garbage in containers provided by Landlord for such purpose. In
the event Landlord elects to furnish such service to the tenants in the Shopping
Center, Tenant agrees to use only the service provided by Landlord and to pay
for such service (including both the cost of leasing containers and the cost of
removal) monthly, as additional rent, in accordance with the uniform schedule of
charges to be established by Landlord. In no event shall Tenant be obligated to
pay Landlord more for such trash and garbage removal service than the prevailing
competitive rates of reputable independent trash removal contractors for service
similar to that provided by Landlord.
Section 19.4. Water and Sewer. The cost of water and sanitary sewer for
usage in the Shopping Center shall be included in Common Area Maintenance
Expenses, except for food service tenants which shall be billed directly by
Landlord or by the supplier of water and sanitary service and any other tenants
which are billed directly by Landlord or such supplier. Landlord reserves the
right to install a water meter in the Leased Premises at any time or from time
to time to measure Tenant's consumption of water therein and bill Tenant
directly for the cost of such consumption. Tenant shall pay, as additional rent,
the amount of each bill within fifteen (15) days after such bill is rendered.
Section 19.5. Grease Interceptors. Landlord will arrange for regular
periodic service and cleaning of all grease interceptors at Tenant's expense.
Cost of service and cleaning of grease interceptors will be allocated among
grease interceptors serving food court(s) and grease interceptors serving
individual tenants in proportion to grease trap size. Tenants served by
individual grease traps will pay the pro rata share of the cost for their grease
trap. The share of grease trap service and cleaning cost app6rtioned to food
court grease traps will be paid by food court tenants as part of the food court
common facilities expenses.
ARTICLE XX
MISCELLANEOUS
Section 20.1. Entire Agreement. This Lease together with the Exhibits,
attached hereto and incorporated herein contains the entire agreement between
the parties hereto and there are no promises, agreements, conditions,
undertakings, or warranties, or representations, oral or written, express or
implied, between them other than as herein set forth. No change or modification
of this Lease or of any of the provisions hereof shall be valid or effective
unless the same is in writing and signed by the parties hereto. No alleged or
contended waiver of any of the provisions of this Lease shall be valid or
effective unless in writing signed by the party against whom it is sought to be
enforced.
Section 20.2. Notices. No notice or other communication given under this
Lease shall be effective unless the same is in writing and is delivered in
person or mailed by registered or certified mail, return receipt requested,
first class, postage prepaid, or delivered by Federal Express or a comparably
reliable national air courier service (i.e., one which delivers service in at
least forty-eight (48) states) provided that any such courier service provides
written evidence of delivery. Any such notice or communication shall be
addressed:
(a) If to Landlord, 200 East Long Lake Road, P.O. Box 200, Bloomfield
Hills, Michigan 48303-0200 or to such other address as Landlord shall designate
by giving notice thereof to Tenant;
(b) If to Tenant, at the address set forth for Tenant on the Data Sheet of
this Lease, or such other address as Tenant shall designate by giving notice
thereof to Landlord.
The date of service of any notice or other communication given by mail
shall be the date on which such notice is deposited in the U.S. mails. The date
of service of any notice given by courier service (as described above) shall be
one (1) day after deposit with such courier service.
Section 20.3. Successors. All rights and liability herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and assigns of the said
parties; and if there shall be more than one Tenant, or more than one person or
entity acting collectively as Tenant, they shall all be bound jointly and
severally by the terms, covenants and agreements herein. Any restriction on or
requirement imposed upon Tenant hereunder shall be deemed to extend to Tenant's
Guarantor, Tenant's sublessees, Tenant's assignees and Tenant's invitees, and it
shall be Tenant's obligation to cause the
foregoing persons to comply with such restrictions or requirements. No
rights, however, shall inure to the benefit of any assignee or other transferee
of Tenant, and no rights or benefits shall be conferred upon any such assignee
or transferee by reason of this Section 20.3, unless such rights or benefits
shall be expressly otherwise set forth in this Lease.
Section 20.4. Liability of Landlord. Neither Landlord, Landlord's
beneficiaries, any persons or entities comprising Landlord, or any successor in
interest to Landlord (or to such persons or entities) shall have any personal
liability for any failure by Landlord to perform any term, covenant or condition
of this Lease. If Landlord shall fail to perform any covenant, term or condition
of this Lease upon Landlord's part to be performed, and if as a consequence of
such default Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only out of the proceeds of sale received upon
execution of such judgment and levied thereon against the right, title and
interest of Landlord in the Shopping Center and out of rents or other income
from such property receivable by Landlord, or out of the consideration received
by Landlord from the sale or other disposition of all or any part of Landlord's
right, title and interest in the Shopping Center, subject, nevertheless, to the
rights of Landlord's mortgagee, and neither Landlord nor any of the parties or
entities comprising Landlord herein shall be liable for any deficiency. The
foregoing limitation of liability shall be noted in any judgment secured against
Landlord and in the judgment index.
Section 20.5. Brokers. Tenant warrants and represents that there was no
broker or agent instrumental in consummating this Lease. Tenant agrees to
indemnify and hold Landlord harmless against any claims for brokerage or other
commissions arising by reason of a breach by Tenant of this representation and
warranty.
Section 20.6. Transfer by Landlord. Landlord hereunder shall have the right
to freely assign this Lease without notice to or consent of Tenant.
Section 20.7. No Partnership. Notwithstanding the fact that a portion of
the rent reserved hereunder may be a percentage of Tenant's Gross Sales, and
notwithstanding anything else to the contrary, Landlord shall not be deemed to
be partner of Tenant or a joint venturer with Tenant.
Section 20.8. Waiver of Counterclaims. Tenant shall not impose any
counterclaim or counterclaims in a summary proceeding or other action based on
termination or holdover, it being the intent of the parties hereto that Tenant
be strictly limited in such instance to bringing a separate action in the court
of appropriate jurisdiction. The foregoing waiver is a material inducement to
Landlord making, executing and delivering this Lease and Tenant's waiver of its
right to counterclaim in any summary proceeding or other action based on
termination or holdover is done so knowingly, intelligently and voluntarily.
Section 20.9. Waiver of Jury Trial. Landlord and Tenant hereby waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on, or in respect of, any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant hereunder, Tenant's use or occupancy of the Leased Premises
and/or any claim of injury or damage.
Section 20.10. Severability. If any provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
Section 20.11. No Waiver. No failure by Landlord to insist upon the strict
performance of any term, covenant, agreement, provision, condition or limitation
of this Lease to be kept, observed or performed by Tenant, and no failure by
Landlord to exercise any right or remedy available upon a breach of any such
term, covenant, agreement, provision, condition or limitation of this Lease
shall constitute a waiver of any such breach or of any such term, covenant,
agreement, provision, condition or limitation.
Section 20.12. Consumer Price Index. As used herein, "Consumer Price Index"
or "Index" shall mean the Consumer Price Index for All Urban Consumers (1982-84
= 100), U.S. City Average, All Items, published by the United States Department
of Labor, Bureau of Labor Statistics (or such comparable index as may be
utilized in substitution for or as the successor to the stated Index). If such
Index is not published by the Bureau of Labor Statistics or by another similar
governmental agency at any time during the Term, then the most closely
comparable statistics on the purchasing power of the consumer dollar as
published by a responsible financial authority and selected by Landlord shall be
utilized in lieu of such Index.
Section 20.13. Interest. Any amount due from Tenant to Landlord herein
which is not paid when due shall bear interest at a rate per annum equal to the
Federal Reserve Bank discount rate as published in the Wall Street Journal on
the 25th day of the month preceding the date upon which the obligation is
incurred (or the next business day thereafter if the 25th is not a weekday) plus
five percent (5%) unless otherwise specifically provided herein, but the payment
of such interest shall not excuse or cure any default by Tenant under this
Lease. In no event shall any interest calculated hereunder be at a rate which is
higher than the maximum rate which is allowed under the usury laws of the State,
which maximum rate of interest shall be substituted for the rate in excess
thereof, if any, computed pursuant to this provision.
Section 20.14. Excavation. If an excavation shall be made upon land
adjacent to the Leased Premises, or shall be authorized to be made, Tenant shall
afford to the person causing or authorized to cause such excavation,
license to enter upon the Leased Premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building of which
the Leased Premises form a part from injury or damage and to support the same by
proper foundation, without any claim for damages or indemnity from Landlord, or
diminution or abatement of rent.
Section 20.15. Rules and Regulations. Tenant agrees to comply with and
observe all reasonable rules and regulations established by Landlord for the
Shopping Center from time to time. Tenant's failure to keep and observe such
rules and regulations shall constitute a default pursuant to the terms of this
Lease in the manner as if the same were contained herein as covenants, which
shall carry with it the same consequences under Article XIV hereof as Tenant's
failure to pay rent.
Section 20.16. Financial Statements. Upon Landlord's written request from
time to time, Tenant shall, within ten (10) days after Landlord's request
therefor, furnish Landlord financial statements outlining Tenant's then current
financial condition and shall furnish financial statements outlining the current
financial condition of any Guarantor of this Lease. The provisions of this
Section 20.16 shall apply to financial statements of Tenant and/or Guarantor.
Landlord may request financial statement(s) not more than once per Lease Year
and shall use reasonable efforts to maintain all financial information provided
in a confidential manner; provided, however, that Landlord may disclose such
financial statements to Landlord's mortgagees or prospective mortgagees or
purchasers.
Section 20.17. General Rules of Construction. (a) This Lease may be
executed in several counterparts and the counterparts shall constitute one and
the same instrument. (b) Landlord may act under this Lease by its attorney or
agent. (c) Wherever a requirement is imposed on Tenant hereunder, Tenant shall
be required to perform such requirement at is sole cost and expense unless it is
specifically otherwise provided herein. (d)(i) Wherever appropriate herein, the
singular includes the plural and the plural includes the singular; (ii) whenever
the word "including" is used herein, it shall be deemed to mean "including, but
not limited to"; (iii) the words "re-enter" and "re-entry" as used herein shall
not be restricted to their technical legal meaning. (e) Anything in this Lease
to the contrary notwithstanding: (i) any provision hereof which permits or
requires a party to take any particular action shall be deemed to permit or
require, as the case may be, such party to cause such action to be taken; and
(ii) any provision hereof which requires any party not to take any particular
action shall be deemed to require such party to prevent such action to be taken
by any person or by operation of law.
Section 20.18. Recording. Neither this Lease nor any memorandum hereof may
be recorded without the express written consent of Landlord.
Section 20.19. Effective Date. For all purposes hereof, the "Effective
Date" of this Lease shall be the date upon which this Lease shall have been
executed by both parties and physically delivered by Landlord to Tenant or its
attorney. Prior to the Effective Date, neither this Lease nor anything hereunder
contained shall be legally binding on either Landlord or Tenant, and the
submission of this Lease by Landlord to Tenant prior to such Effective Date for
examination or consideration by Tenant or discussion between Landlord and Tenant
shall not constitute a reservation of or option for the Leased Premises or
create any legal obligation or liability whatsoever on Landlord.
Section 20.20. Headings. The captions, section numbers, article numbers and
index appearing in this Lease are inserted 6nly as a matter of convenience and
in no way define, limit, construe, or describe the scope of intent of such
sections or articles of this Lease nor in any way affect this Lease.
In confirmation of their agreement to enter into this Lease(including the
Data Sheet, Articles I to XX. All exhibits and the Rider (if Any) attached
hereto), and intending to be bound hereby, Landlord and Tenant have caused this
Lease to be signed as of the day and year first above written.
In the presence of TAUBMAN AUBURN HILLS ASSOCIATES
LIMITED PARTNERSHIP, a Delaware
Partnership
TOYS INTERNATIONAL, INC.
A California corporation
ACKNOWLEDGEMENT OF LANDLORD
STATE OF
COUNTY OF
On this 25th day of June 1998, before me personally appeared Dennis Hecht
to me known to be the person who executed the foregoing Lease and acknowledged
before me that he was duly authorized and did execute same on behalf of TAUBMAN
AUBURN HILLS ASSOCIATES.
Notary Public: Dorothy Klusek
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C-1
Exhibit "C"
Preface
Landlord's Work - White Box Work to be performed by Landlord in
constructing the Leased Premises shall be limited to those items expressly set
forth below in this Section II of this Exhibit C as "Landlord's Work". (deleted)
All other items of work, including the purchase and installation of all
materials and equipment necessary for Tenant's use of the Leased Premises, shall
be provided by Tenant at Tenant's sole expense, and shall include, but shall not
be limited to, those items set forth in Section III of this Exhibit as "Tenant's
Work". The building in which the Leased Premises are a part shall be designed by
the architect and engineer retained by the Landlord to design and oversee
construction of the Shopping Center (herein sometimes referred to as the
"Project"). Construction shall meet the requirements for a fully sprinklered
building in accordance with the fire protection and building code program of the
local jurisdictional authority as well as any development agreement and master
declaration governing the Project, if applicable. Landlord shall provide Tenant
with Tenant Handbooks (Tenant Design Criteria) hereinafter referred to as the
"Tenant Handbooks".
Except as otherwise provided below, Landlord shall initially construct the
following:
A. BUILDING SHELL WORK WITHIN AND AROUND THE LEASED PREMISES
1. Shell. Landlord shall construct the building shell (building
structure, insulated roof and exterior walls) in which the Leased
Premises are to be located. It is expressly agreed and understood
that the Leased Premises shall constitute a portion of a covered
mall building.
2. Exterior appurtenances. Public entrance features, canopies and
screen walls at the exterior of the building structure shall be
provided by Landlord in locations and of a design and in materials
deemed appropriate by Landlord.
3. Outside Walls. If the Leased Premises abut an exterior wall and
such wall is (a) masonry or pre-cast panels, then the wall shall be
unfinished on the interior or furred and finished with gypsum
board, if located in sales area; (b) metal studs, then the wall
shall be metal studs with insulation, and interior 5/8" gypsum
board taped, sanded to 1 2'O" above the concrete floor as shown on
the tenant shell drawing.
4. Demising Partitions. Landlord shall install heavy gauge metal demis
-ing studs,
16" or 24" on center, with 5/8" gypsum board on walls dividing the
Leased Premises from other premises, to a minimum of 1 2'O" above
slab and ready to paint. Such walls shall be configured in a way to
allow installation of Landlord's smoke venting system or HVAC
return air clearances, if required. Corridor walls shall, on
Tenant's side, receive drywall, rated where required, taped,
spackled and ready to paint. Sound barrier batt insulation shall be
installed in all demising partitions for tenants whose operations
include services with noise levels higher than typical, as
determined by Landlord (including, but not limited to, food service
tenants and arcades).
5. Neutral Pier. Where Landlord desires, a vertical demising strip may
be located at the storefront line between stores. The center line
and/or back side of said strip may or may not precisely coincide
with the lease line defining the Leased Premises.
6. Stockroom Walls. Landlord shall furnish and install metal studs 1
6" or 24" on center, with gypsum board on both sides to a height
aligned with the underside of adjacent steel joists or as required
to maintain HVAC return air clearances, taped, spackled and ready
to paint. Landlord shall locate the stockroom wall in the Leased
Premises so that the Leased Premises are configured approximately
85% sales area to approximately 15% stock area.
7. Exterior Service/Exit Door. Where the Leased Premises abut an
exterior wall or interior exit corridor, Landlord shall install one
(1) 3'O" X 7'O" 1-3/4" hollow metal door and frame (with 1 1/2 pair
butts and temporary lockset), if required by Code or Landlord's
insurance carrier. The outside face of door will be
C-2
finished by Landlord to match adjacent construction and shall not
be modified by Tenant. The location of such door will be indicated
on the Space Layout Drawing (as defined herein). Tenant's store
name and space number will be applied adjacent to the door by
Landlord, per Landlord's architect's specifications and shall not
be modified by the Tenant.
8. Interior Service/Exit Door. Where the Leased Premises abut an
exit/service corridor, Landlord shall install one (1) 3'0" X 7'0" x
1-3/4" hollow metal door and frame (with 1 1/2 pair butts and
temporary lockset), if required by Code or Landlord's insurance
carrier. The hollow metal door and frame are to be finish painted
on the corridor side with a color selected by Landlord. Tenant's
store name and store number will be applied adjacent to the door by
Landlord, per Landlord's architect's specifications and shall not
be modified by the Tenant.
9. Floor Slab. Landlord shall furnish a 4" thick slab on-grade, with
smooth trowelled concrete surface. The floor elevation from the
storefront lease line to 4'0" within the space will be
approximately 3/4" below the finished floor elevation in the mall
areas adjacent to the Leased Premises. The floor slab shall be
designed for a maximum bearing capacity of 1 25 lbs. per square
foot.
10. Storefronts and Sign Bands. Landlord shall design and construct
Tenant's storefront and sign band. The storefront lease line, as
established by Landlord, shall be the line beyond which no element
of the storefront may extend but may not necessarily follow the
line of construction. The storefront furnished by Landlord shall
include one entry, complete with gypsum board soffit and security
closure. The width of the security closure will be as follows:
Storefront width up to 25' 8' wide
Storefront width 26'- 35' 10' wide
Storefront width 36' and up 12' wide
SEE ATTACHED RIDER FOR INSERTS
The above storefront width may vary with specific location
restrictions. Refer to Space Layout Drawing for exact opening size.
11. Ceiling Grid. Landlord shall provide a 2' X 4' T-bar open grid
defining the ceiling plane, which shall meet the requirements of
the Landlord's smoke venting system, if required. Tenant shall not
alter the degree of openness of the ceiling grid.
12. Exposed Construction. All exposed construction shall be painted
in a color approved by Landlord, including, but not limited to, all
steel construction, metal deck, ductwork, conduit, junction boxes,
etc.
B. FINISH WORK OUTSIDE THE LEASED PREMISES
1. Exterior Areas. Landlord shall provide parking areas, access roads,
delivery areas, drainage systems, walks, ramps, lighting,
landscaping and planting, striping, signage, and other facilities
and improvements, all as determined by Landlord, in the exterior
common area.
2. Interior Areas. Landlord shall provide enclosed air-conditioned and
lighted malls, courts and entry-ways, lighted delivery areas,
service and exit corridors, ramps, public restrooms, meter and
valve rooms and all other areas, facilities and buildings used in
the maintenance and operation of the Project, all as determined by
Landlord.
C. BUILDING UTILITY SYSTEMS SERVING THE LEASED PREMISES
1. Mechanical. An air conditioning system (the "HVAC System") shall be
designed and installed by Landlord in the Leased Premises in accordance with the
requirements of Jurisdictional Codes. The HVAC System may be a central variable
air volume, fixed temperature system serving multiple tenants or, as determined
by Landlord or may be individual packaged roof-top units delivering constant
volume, variable temperature air directly to the Leased Premises, at Tenant's
sole cost and expense in accordance with the schedule set forth on Exhibit CC,
attached hereto. The HVAC System shall include ducts, outlets, grilles and
controls.
1 C-4
2. Electrical. Landlord shall install an electrical system for the Leased
Premises of the size and capacity described in the Tenant Handbooks. The
electrical system shall include 480 volt 3 phase 3 wire service, provisions for
metering, conduit, conductors, 480 volt panel, or disconnect switch, as
determined by Landlord, power transformer, 1 20/208 volt panel and distribution
wiring to Landlord supplied lights, outlets, and other accessories described
below. Landlord shall install 2' X 4' fluorescent lay-in light fixtures based on
an average of one fixture per 80 square feet of sales area and two tube strip
fluorescent lighting based on an average of one fixture per 1 50 square feet of
stock area. All fluorescent lighting shall be 3 lamp, glare-free type fixtures
recessed and shielded with 1 8 cell metal parabolic cube reflectors. Exit signs
and emergency lights shall be provided to meet Code. Landlord shall provide
duplex outlets in demising walls up to one outlet every 40 feet on center.
Landlord shall provide one 20 amp dedicated sign circuit with junction box to be
located at the front entry of the Leased Premises, and one 20 amp dedicated cash
register circuit and storefront soffit lighting wired to Tenant's electric
panel. Additional duplex outlets may be provided by Landlord, at Tenant's
expense.
3. Toilet Room. If required by Landlord or Codes, Landlord shall install
complete restroom facilities, including water, sanitary sewer, vent, plumbing
fixture, toilet exhaust and specialty items, conforming to applicable Code and
ADA requirements.
4. Sprinkler System. Landlord shall install a hydraulically calculated fire
protection sprinkler system in the Leased Premises which shall include risers,
bulk mains, cross mains, branch lines and upturned sprinkler heads at the bar
joists. The quantity of heads provided by Landlord will be no less than that
required by Code.
5. Telephone System. Landlord shall provide telephone service closets at
various locations throughout the Project. Tenant, at Tenant's sole cost and
expense, shall extend service from the service closets to the Leased Premises.
Routing of the service by Tenant shall be through Tenant's rear service
corridor, in Landlord-supplied bridle rings. If Tenant does not have an adjacent
service corridor and/or the adjacent corridor does not abut a telephone room, a
conduit shall be provided by Landlord from the Leased Premises or adjacent
corridor to a corridor adjacent to a telephone room.
6. (deleted)
D. GENERAL PROVISIONS
1. Minor changes in plans or specifications covering Landlord's Work which
may be necessary during design and construction of the Project or affecting the
Leased Premises shall not in any way invalidate the terms of the Lease or
Section II of this Exhibit C, nor shall any such change require Landlord to
provide any work not described herein.
2. Landlord shall have the right to specify or change the location, either
before or after construction, of all utility lines, ducts, drains, sprinkler
mains and valves, and such other facilities within the Leased Premises, as is
made necessary by engineering design and/or Code requirements. The items
described above shall be located so as not to materially interfere with Tenant's
use of the Leased Premises (as permitted hereunder). Landlord shall have the
right to relocate and specify the location of mechanical and other equipment on
the roof over the Leased Premises.
3. (deleted)
4. Landlord shall have the right to perform, at Tenant's expense, any of
Tenant's Work which, Landlord determines, in its sole discretion, must be
performed (a) immediately and/or on an emergency basis for the best interest of
The Project, (b) to the extent required for Landlord's compliance with Code, or,
(c) to the extent necessary to obtain any certificate of occupancy required by
the Landlord or any other tenant in the Project.
GREAT LAKES CROSSING
EXHIBIT "C-i"
UTILITIES
(Attached to and forming a Dart of Exhibit C and Exhibit D; Section
references correspond to the Section numbers set forth in Exhibit C and/or
Exhibit D, as noted.)
EXHIBIT C, SECTION C: LANDLORD'S WORK
A. Building Utilities and Services
1. Points of connection, for Tenant's use, to the following utilities in
locations and sizes determined by Landlord.
a.Tenants designated to receive Central Air Conditioning Supply System
(areas defined on leasing plans and Exhibit "A" of this Lease).
1. Sanitary sewer stub.
2. Plumbing vent stub.
3. Domestic cold water stub.
4. Fire protection sprinkler system main and basic sprinkler grid.
5. Air conditioning supply duct stub.
6. Main temperature control communications loop.
7. Toilet exhaust header duct stub.
8. Central electric utility company distribution centers (480/3PH, 3W, 60HZ).
9. Central telephone company distribution boards.
b. Tenants designated to install individual heating, ventilating and air
conditioning systems (areas defined on leasing plans and Exhibit "A"
of this Lease).
1. Sanitary sewer stub.
2. Kitchen waste system sewer stub (if applicable).
3. Plumbing vent stub.
4. Domestic cold water stub.
5. Fire protection sprinkler system main and basic sprinkler grid.
6. Central gas utility company metering manifolds.
7. Central electric utility company distribution centers (480/3PH,3W,
60HZ).
8. Central telephone company distribution boards.
EXHIBIT D. SECTION II: CRITERIA - TENANT'S WORK.
The requirements, criteria, and/or outline specifications as set forth herein
represent minimum standards for the design, construction, and finish of the
mechanical and' electrical systems, whether designed and/or built by Landlord or
Tenant, unless otherwise indicated in specific Lease Agreements.
A. Mechanical
1.Plumbing:
a. Plumbing fixtures and accessories shall be of commercial quality and
shall be of a water-conserving type.
b. Water heaters shall be electric, except Food and Beverage Service
tenants where gas units may be permitted.
c. Floor drains shall be provided in toilet rooms and kitchens and /or food
service areas.
d Food and Beverage Service tenants will be required to pipe certain
fixtures into the "Kitchen Waste System" in accordance with code. Subject
tenants will be required to pay their proportionate share of all costs involved
in service, maintenance, repairs and/or replacement of the "Kitchen Waste
System."
e. Food and Beverage Service tenants shall further provide gas service and
branch line extension from the gas meter center to and within the Leased
Premises.
f. Food and Beverage Service tenants (and certain other high water volume
users) shall provide a water meter (calibrated in gallons) in an easily
accessible location (or, at Landlord's direction, Tenant will install a remote
reader device).
2. Heating, Ventilating, and Air Conditioning:
a. Tenants designated to receive Central Air Conditioning Supply System
(areas defined on leasing plans and Exhibit "A" of this Lease).
(i) The Leased Premises are served from a centrally conditioned
air supply system installed by Landlord, which will deliver, during
regular Shopping Center business hours, filtered, cooled air at a
fixed temperature and variable volume. The system is designed to
maintain the Leased Premises at 760F. + 20F. DB and 50% RH + 5% RH,
when outdoor temperature is 900F. DB and 730F. WB, and Tenant's total
internal sensible and latent heat gain does not exceed 1 9 BTU/hour
per square foot of Leased Premises.
(ii)Landlord has provided cooling at a rate no less than 325 sq.
ft. per ton which includes ventilation and building construction
loads.
(iii)Tenant shall provide its own supplementary electrical
heating equipment, should additional heating be required for the
Leased Premises.
(iv)Landlord will furnish, for installation by Tenant within its
Leased Premises, Variable Air Volume Control Device(s), with electric
heat, electronic operator and thermostat for same (collectively, VAV
Device Sets). Tenant shall design and install the air distribution
system for its Leased Premises, using the VAV Device Set(s), in
accordance with Standard Project Details.
(v) Tenant shall provide opening(s) in the partitions defining
Tenant's Leased Premises (party walls) for the transfer of the return
air/smoke exhaust to its respective Central System Air Handling
Unit/smoke exhaust fan. Location(s) in ceiling space, details, height
and sizing of the return air/smoke exhaust opening(s) will be
determined by Landlord.
(vi)Tenant shall provide exhaust fans to satisfy exhaust
requirements for toilet rooms and for removal of heat or odors
generated within the premises. Exhaust fans shall be located within
the Leased Premises. Exhaust air discharge shall be restricted to
exhaust duct locations designated by Landlord.
(vii)Standards of design and construction shall be in accordance
with latest ASHRAE and SMACNA Guides for all ductwork.
b. Tenants designated to install individual heating, ventilating and air
conditioning systems (areas defined on leasing plans and Exhibit "A" of
this Lease:
(i) Each tenant shall provide its own individual system (i.e.,
heating, ventilation and air-conditioning equipment and controls,
ducts, insulation, water supply, venting and drainage, fresh air
supply and return, exhaust and make-up air, smoke control,
dehumidification and humidification equipment, water saving equipment
and all structural, plumbing and electrical work related thereto). All
equipment shall bear UL label.
(ii)All equipment shall be contained within Tenant's premises
except rooftop air-conditioning or condensing units, make-up air
units, and hood exhausters. Such equipment located on the roof shall
only be located in areas designated by the Landlord to specified
heights, and in accordance with Landlord's standard details for
roof-mounted equipment. All power wiring, control wiring and
refrigerant piping shall be installed in ceiling space and extended
through roof adjacent to the equipment.
(iii)Tenant's air handling units shall be floor-supported in
Tenant's space independent of Landlord's structural system (where
applicable).
(iv)All process exhausts, hood exhausts, equipment vents, and
other contaminated exhausts permitted by Landlord shall discharge
vertically to the atmosphere, and be located a minimum of 20 feet
horizontally from any fresh air intakes, properly dispersing odors or
fumes away from same.
(v) All supply and fresh-air ductwork shall be insulated. Space
between ceiling and structure shall not be used as a return air
plenum.
(vi) All air supplied to Tenant's area by its equipment shall not
migrate to the public mall or adjacent spaces.
(vii) Standards of design and construction shall be in accordance
with latest ASHRAE and SMACNA Guides.
(viii) Tenant shall provide all process requirements, hood
exhausts, make-up air supplies, equipment vents and other contaminated
exhausts. When permitted by Landlord, they shall extend in ductwork
through the roof. Ductwork which passes through exit corridor walls
shall be completely segregated from the exit corridor, with one-hour
fire rated construction enclosures.
(ix)Tenant roof equipment shall be located in areas designated by
Landlord to specified heights and in accordance with Landlord's
standard details for equipment on the roof.
(a) Should weight or location of equipment by Tenant require
supports, screens, cat walks or roof hatch and ladder, they shall
be provided by Tenant in accordance with standard details.
Landlord shall determine when and where the above shall be
required.
(b) All above equipment shall be finish painted in
accordance with Landlord's paint schedule and specifications.
(c) Tenant's roof equipment shall be clearly identified with
Tenant's name.
(x) If a smoke control system for the Project is
required and is to be an interrelated, centrally controlled
installation, Tenant shall design and install a smoke
control system within Tenant's premises which meets all
applicable codes and is fully compatible with Landlord's
central smoke control system, as determined by Landlord.
Landlord and Tenant shall provide to each other a set of dry
contacts (normally open and normally closed) signaling
detection of fire, smoke and/or waterflow in each respective
space.
B. Electrical
1. Power available for the Leased Premises is 480 volt, 3;phase, 3-wire.
2. Installation or modification of the existing system shall conform to the
following:
a.Dry-type transformer (if required) shall be used for all 1 20/208.volt
requirements.
b.Panelboards shall be designed for 20% minimum spare ampacity (based on
connected load) and 20% spare breaker space.
c.All electrical wiring systems shall be in conduit. The' use of "BX" or
"Romex" is not permitted.
Exhibit "CC" Central Air Conditioning SUDDIV System
Some tenants, determined by Landlord, have been designated to receive a Central
Air Conditioning Supply System delivering cooled, filtered, high velocity air to
a supply air duct stub, at fixed temperature and variable volume during regular
Shopping Center hours as determined by Landlord. The Central Air Conditioning
Supply System will be installed by Landlord on behalf of Tenant. Landlord shall
initially design and construct all heating, ventilating, and air conditioning
systems within or directly related to the Leased Premises, proceeding from the
supply air duct stub.
Operating Costs and expenses
From and after the date the space is delivered to Tenant, Tenant agrees to
pay Landlord an amount, determined by Landlord's Engineer in the manner
hereinafter provided. Said amount shall include Tenant's share of all costs and
expenses incurred by Landlord on Tenant's behalf in connection with said system,
including but not limited to the costs and charges for operation,
administration, electricity, insurance, repairs, replacement, maintenance and
property taxes.
Charges will be computed by multiplying the floor area of the Leased
Premises by the applicable amounts shown in this schedule.
Annual
Floor Area of VAC Charge Rate
Leased Premises Schedule
$2.95
2.92
2.88
2.84
2.81
2.77
2.74
2.70
2.66
2.62
2.59
2.55
2.51
2.48
2.44
2.40
2.36
2.33
2.29
2.2~
2.18
2.14
2.10
2.07
SEE ATTACHED RIDER FOR INSERTS
The annual amount, hereinafter termed "Annual Ventilating and Air Conditioning
Charge" or "Annual VAC Charge," will not include costs incurred by Tenant for
maintenance or operation of equipment installed by Tenant. The base Annual VAC
Charge is determined by a unit rate per square foot floor area of the Leased
Premises from the "Annual VAC Charge Rate Schedule," and, when established in
accordance with Landlord's requirements and approval, shall be paid by Tenant to
Landlord in accordance with the following Section 1. Section 2 provides the
basis for adjustment to the Annual VAC Charge rate, if Tenant's design load
exceeds the Landlord's base standards. Section 3 provides the basis for
adjustment to the Annual VAC Charge rate for increases to the operating
variables.
Up to 250 square feet 251 to 500 square feet 501 to 750 square feet 751 to
1,000 square feet 1,001 to 1,250 square feet 1,251 to 1,500 square feet
1,501 to 1,750 square feet
1.751to 2,000 square feet 2,001 to 2,500 square feet 2,501 to
3,000 square feet 3,001 to 3,500 square feet 3,501 to 4,000 square feet
4,001 to 4,750 square feet 4,751 to 5,500 square feet 5,501 to 6,250 square
feet 6,251 to 7,000 square feet 7,001 to 7,750 square feet 7,751 to 8,500
square feet 8,501 to 9,250 square feet 9,251 to 10,000 square feet 10,001 to
12,500 square feet 12,501 to 15,000 square feet 15,001 to 17,500 square feet
17,501 to 20,000 square feet Over 20,000 square feet
a. For the purpose hereof, the term "Base Unit Rate" shall be the rate
determined from the Annual VAC Charge Rate Schedule, by using the total square
foot floor area of the premises.
b. The term "Actual Unit Rate" shall be the rate after the Base Unit Rate
has been adjusted as provided by Section 2 hereof.
c. The Actual Unit Rate is then multiplied by the total square foot floor
area of the premises. The product is the Annual VAC Charge which shall be.
divided into twelve (1 2) equal monthly installments hereinafter designated as
the Monthly VAC Charge.
2. Design Load Adjustment
a. The Base Unit Rate for VAC service has been developed in part from the
Design Criteria which also includes a maximum electrical heat producing load of
21 BTU per hour per square foot or 6 watts per square foot.
The Base Unit Rate shall be increased by thereof for each watt per square
foot or maximum six (6) watts per square foot, Engineer.
ten percent (10%) or the fraction thereof in excess of the all as
determined by Landlord's
b.The Actual Unit Rate shall initially be determined by inspection of
Tenant's Store Working Drawings. Landlord shall have the right to inspect the
Leased Premises, and, in the event "As-Built" lighting and heat producing
equipment exceeds loads indicated on initial working drawings, Landlord will
adjust Actual Unit Rate on the basis of the above formula.
3. Operating expense Adjustment
a. The Base Unit Rate for VAC has been developed as follows:
i. Electrical Energy: An average unit cost of electricity per kilowatt
hour, including energy charge, demand charge, fuel adjustments and taxes, from
applicable Detroit Edison Company rates and tariffs, with base rates effective
January 22, 1 994 and surcharges effective January 1, 1 997.
ii.All Other Expenses: All costs and expenses for operation,
administration, insurance. repairs, replacement, maintenance and property taxes
accrued to said system, in effect as of January 1, 1 997.
b. The VAC Charge shall be adjusted from time to time in accordance with
the following provisions:
i. Eighty percent (80%) of the Actual Unit Rate shall be increased by a
percentage equal to the percentage increase in the previously defined average
cost of electrical power per kilowatt hour.
ii.Twenty percent (20%) of the Actual Unit Rate shall be increased during
each annual period by a percentage equal to the percentage increase from the
base period of the "Consumer Price Index For All Urban Consumers (1982-84 =
100), U.S. City Average, All Items," published by the United States Department
of Labor, Bureau of Labor Statistics.
iii. Landlord shall have the right to adjust retroactively and increase VAC
charges for preceding periods. The adjusted Actual Unit Rate shall become the
applicable rate until further adjusted by Landlord.
D-1
Exhibit "D~ Preface
Tenant's Work - White Box
This Exhibit D is intended to describe the obligations of the Tenant in the
design and construction of the Leased Premises. Landlord's work will be limited
to the work described in Exhibit C. Landlord's work for Tenant in this Exhibit D
will be accomplished by Landlord at Tenant's expense. The work of Tenant
described in Exhibit D is intended to provide for the Leased Premises to be
finished in accordance with Tenant's drawings as approved in writing by Landlord
and to complete the Leased Premises to a finished condition ready for the
conduct of business therein. All finished installation will be deemed incomplete
until approved by Landlord.
Landlord and Tenant have a common interest in opening the Leased Premises on the
Grand Opening Date. To this end, Landlord will coordinate its work with Tenant's
work insofar as the schedule for such Grand Opening Date and prudent
construction practice will allow and will assign one or more tenant coordinators
to function as liaison between tenants and Landlord. Further to this end, Tenant
and Tenant's contractors agree to abide by Landlord's Construction Rules and
Regulations which may be issued from time to time. In order to insure that the
Tenant's store interior, and signage design are orderly and aesthetically
coordinated with Landlord's building, and to insure that Landlord's storefront
and signage requirements are understood by tenants, their designers, engineers,
contractors, and other representatives, Landlord has drafted and Tenant shall
follow the architectural and signage criteria established in the Tenant Handbook
(Tenant Design Criteria) hereinafter referred to as "Tenant Handbook". In order
to insure that the Tenant's HVAC, plumbing and electrical systems are compatible
and coordinated with the Landlord's building, and to insure that the Landlord's
HVAC, plumbing and electrical requirements are understood by tenants, their
designers, engineers, contractors, and other representatives, Landlord has
drafted and Tenant shall follow the mechanical and electrical criteria
established in the Tenant Handbook.
All Tenant construction shall be in accordance with the requirements of all
applicable codes, ordinances, rules and regulations of all authorities having
jurisdiction over the work including all requirements of the Landlord's
insurance carrier. Construction shall conform to the requirements for a fully
sprinklered building in accordance with the fire protection and building code
program of the local jurisdictional authority as well as the Development
Agreement and Master Declaration governing "The Project", if applicable. Tenant
shall secure all necessary permits including, but not limited to occupancy and
health department permits from the jurisdictional authorities in sufficient time
to allow Tenant to open the Leased Premises on the Grand Opening Date. Tenant
shall furnish to Landlord upon receipt, copies of all building permit
applications, statements, amendments and the like, and all permits, inspection
reports, certificates, and other documents as required by authorities having
jurisdiction over The Project.
Tenant, at its sole cost and expense shall perform all work, other than work to
be performed by Landlord as set forth in Exhibit C, required to complete the
Leased Premises to a finished condition ready for the conduct of business
therein.
Exhibit D shall govern over any inconsistencies with Exhibit C.
All of Tenant's work within the Leased Premises performed pursuant to this
Section I shall, for the purpose of this Lease to which this Exhibit is
attached, be deemed to be improvements made to the Leased Premises by Tenant at
Tenant's expense.
A. GENERAL CRITERIA
The criteria and outline specifications set forth herein represent
minimum standards for the design, construction, and finish of the Leased
Premises by Tenant.
1. Jurisdictions and Codes. The project is being developed in and
under the jurisdictions of the State, County, and the City in which
The Project is located. All design and construction work shall
comply with all applicable statutes, ordinances, regulations, laws
and codes and the requirements pertaining to service and utilities
furnished by utility companies, all applicable state, county, and
local statutes and ordinances, and OSHA regulations.
2. Permits and Approval. Prior to the commencement of construction,all
building and other permits shall be obtained and posted in a
prominent place within the
D-2
Leased Premises. Landlord's written approval shall be obtained by Tenant
prior to the undertaking of any construction work which deviates from Tenant's
approved Store Working Drawings and Specifications, or which modifies whatsoever
Landlord's building shell or utilities, or any work not explicitly shown on said
Store Working Drawings and Specifications. Landlord's approval of the foregoing
shall not constitute the assumption of any responsibility by Landlord for the
accuracy or sufficiency thereof, and Tenant shall be solely responsible.
3. Floor Loads. The slab on-grade has been designed to support a
uniformly distributed superimposed load (dead plus live) of 1 25
pounds per square foot:. The allowable concentrated load which can
be placed on a contact area with a 4" radius is 2,000 pounds. Any
loading imposed by any of Tenant's work, either on a temporary or
permanent basis, shall not exceed 1 25 lbs./s.f. ("Allowable
Load").
4. Standard Project Details. Standard Project Details, as issued by
Landlord's Architect from time to time and as they pertain to
Tenant Work, shall govern with respect to Tenant's Work. Such
details shall be incorporated into the Tenant's Store Working
Drawings and specifications for the Leased Premises.
5. Materials. Only new, first-class materials shall be used in the
construction of the Leased Premises. Used, first-class materials
for interior architectural facades and fixture may be used provided
such materials are noted on the Tenant's plans and approved by
Landlord through field inspection.
6. Field Conditions. From time to time Tenant is obligated to verify
conditions pertaining to the Leased Premises prior to and after
commencement of construction of its Leased Premises. Tenant shall
coordinate its work with the work of Landlord, other tenants, and
with existing conditions above, below and adjacent to the Leased
Premises. Tenant shall make changes as required to accommodate such
work or conditions.
7. Tenant Handbook. Landlord shall provide Tenant with the Tenant
Handbook and Tenant shall comply with all design criteria
procedures for drawings, specifications, and construction, and
other rules, regulations and provisions therein. To the extent, if
at all, that the Tenant Handbook may conflict with the provisions
of this Exhibit D, the provisions of the Tenant Handbook shall
govern.
B. ARCHITECTURAL FINISHES
1. Floors. Tenant finish floor covering materials must be selected and
adapted in thickness to correspond in elevation exactly with the level of the
finished mall floor, which will be approximately 5/8" above the concrete floor
of the Leased Premises at the lease line. Quality floor materials, such as
carpeting, glazed or unglazed tile, wood parquet or marble, shall be used in the
sales area of the Leased Premises. All flooring finish materials are subject to
Landlord's approval.
2. Storefront. Tenant's storefront will be designed and constructed by
Landlord as provided in Exhibit C and as described in the Tenant Handbook.
3. Interior Partitions. All interior partitions by Tenant within Tenant
Premises shall be metal stud with gypsum board construction, and shall be
finished on all sides with taped and spackled joints. No partitions may extend
above 1 2'-0" from the concrete floor without Landlord's prior written approval.
Any combustible materials applied to partitions shall meet all flame spread and
smoke generation requirements retardant coating if required by code. Any Tenant
penetrations of rated partitions shall be specifically approved in writing by
Landlord and governing authorities as a portion of the permitting process.
Subject to Landlord's approval, Tenant may install drywall to a higher level if
openings of sufficient size are provided to assure that the smoke venting system
provided by Landlord functions as designed - see Tenant Handbook for specific
requirements. ---
4. Demising Partitions. Demising partitions are not load bearing and Tenant
may not hang fixtures from them. Should Tenant require structure and/or backing
to accommodate the loading of Tenant's wall hung fixture, said request shall be
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in writing to Landlord for approval. Additional structure and backing shall
be furnished and installed by Landlord at Tenant's expense.
No drywall shall be placed on demising partitions above 1 2'-0" without
Landlord's specific approval. Above 1 2'-0", Tenant may, subject to Landlord's
prior written approval, continue with wire mesh for security purposes if so
indicated on Tenant's construction drawings. Tenant may, with Landlord's
approval, also install drywall to a higher level if openings of sufficient size
are provided to assure that the smoke venting system provided by Landlord
functions as designed.
5. Service and Exit Corridor Partitions. Any Tenant penetrations of rated
partitions, and relocations and/or additions to Landlord furnished exit doors,
shall be specifically approved in writing by Landlord and governing authorities
as a portion of the permitting process. Any framing, cutting, and patching of
the corridor wall surfaces including the building of vestibules to provide for
the nonimpingement of the door into the corridor traffic way, and other work
related thereto shall be coordinated and consistent with Landlord's work,
including but not limited to the provision of 4'-0" high 1/4" masonite board and
metal corner guards.
6. Additional Interior Service/Exit Corridor Doors; If Tenant desires
additional service access to Leased Premises other than what is provided by
Landlord in Exhibit C, then Tenant shall provide and install a 3'-0" x 7'-0" x
1-3/4" 18 gauge interior hollow metal door, labeled as required, with a hollow
metal 1 6 gauge frames, and all hardware, in accordance with governing codes.
Any framing, cutting, and patching of the corridor wall surfaces including the
building of vestibules to provide for the non-impingement of the door into the
corridor traffic way, the other work related thereto shall be the responsibility
of the Tenant. Hollow metal door and frame are to be finish painted on the
corridor side with a color selected by Landlord. Tenant's store name will be
applied adjacent to the door by Landlord, at Tenant's expense, per Landlord's
Architect's specifications.
7 Door Relocation. The relocation of any exterior Tenant door shall be
performed by Landlord at Tenant's sole expense and must be coordinated with the
structure of Landlord's building.
8. Door Hardware. Tenant shall furnish and install all door locks and exit
devices on all interior service doors, exterior doors, exit corridor doors, and
storefronts that are furnished and installed by Tenant, using hardware
recommended by Landlord in the Tenant Handbook. Tenant shall be responsible to
install any special emergency detex locks or locking systems Tenant may desire
on all doors in addition to locking system provided by Landlord in Exhibit C.
9. Ceiling. Any modifications related to ceilings provided by Landlord in
Exhibit C, shall be the responsibility of Tenant. All ceilings and ceiling
treatments shall be of noncombustible material approved by Landlord and shall
maintain the degree of openness required to preserve the operation of the smoke
venting and sprinkler systems in The Project as established by the
jurisdictional authority and/or as described in the Tenant Handbook.
Tenant's ceiling shall be limited to a ceiling height not less than the
Code required minimum, nor higher than the maximum heights indicated in the
Tenant Handbook. The structure of Landlord's Building has been designed to
accept a superimposed uniform load of three (3) pounds per square foot for the
installation of Tenant's ceiling treatment, including lights. Tenant ceiling
treatment installations weighing more than three (3) pounds per square foot
shall be considered a proposed "modification", under the terms of "Section C,
Structural". All structure hung individual loads in excess of 1 00 pounds shall
be specifically approved by Landlord's Structural Engineer for location and
method of support. Access (such as access panels and other openings) shall be
provided by Tenant where Landlord deems necessary.
Tenants providing ceilings with less than the required degree of openness
shall provide smoke venting at Tenant's sole expense both as required by
jurisdictional authorities and as described in the Tenant Handbook.
D-4
If Tenant's interior partitions and ceiling configuration cause the
requirement of additional sprinkler heads, such additional heads shall be
installed by Landlord's designated contractor at Tenant's expense both as
required by jurisdictional authority and Landlord's insurance carrier.
10. Interior Finishes. All finished interior surfaces must be materials
approved by Landlord for appearance. All Tenant fixtures, furniture, carpeting
(including underlayment), upholstery materials, drapery and other furnishing
must comply with the flammability of materials and smoke generation requirements
for furniture and furnishing requirements of local jurisdictional authorities.
All wood shall be fire retardant in accordance with Landlord and Code
requirements. All wood in contact with the floor shall be termite retardant.
11. Finish Hardware. If Tenant adds additional door(s) other than what is
provided in Exhibit C then commercial grade finish hardware, labeled where
required, shall be used throughout. All doors shall have wall or floor stops,
kick plates, lock sets and push-pull plates as required. All exit doors shall
have hardware as required by Code.
12. Mezzanines. Mezzanines are not permitted.
13. Layout and Painting of exposed Mechanical and Electrical Systems. All
Tenant installed duct work, conduits, pipes and any other mechanical or
electrical equipment exposed to public view from outside the Leased Premises
shall be laid out and installed in a neat and orderly configuration. Tenant
shall paint the above tenant improvements with a color and finish to match
Landlord's finish if such improvements can be seen from Mainstreet above
Tenant's storefront elevation or below the top of the storefront but visible
from Mainstreet.
C. STRUCTURAL
1. Modifications. Any alterations, additions, and/or reinforcements to
the structure of Landlord's building required to accommodate
Tenant's Work, must be designed by a registered structural engineer
at Tenant's expense. Tenant shall leave the structure of Landlord's
building as strong or stronger than original design and with
finishes unimpaired. Tenant's architect shall calculate or have
calculated the structural loads caused by Tenant's improvements and
submit those calculations for written approval by Landlord and
Landlord's Architect prior to Tenant's construction. Landlord
reserves the right to perform such work at Tenant's expense.
2. Loading. All loads individually hung from the structure in excess
of 1 00 pounds shall be specifically approved by Landlord's
structural engineer for location and method of support. All loads
less than 100 pounds that are individually hung from the structure
shall be hung in accordance with the guidelines in the Tenant
Handbook.
3. Insulation. Tenants operating food establishments, gamerooms,
arcades, video stores, record and tape stores, pet stores, salons,
and any other category of business designated by Landlord are
required to install a minimum of 2" sound attenuation batt.
D. HEATING, VENTILATING AND AIR CONDITIONING
1. Alterations. All additions and alterations, if any, to the Landlord
provided HVAC system shall be designed by Tenant's Engineer and
submitted to Landlord prior to commencement of Tenant's work and
shall be installed by Tenant at Tenant's sole expense. All HVAC
work shall comply with ASHRAE standards, Tenant Handbook, and
requirements of local codes and jurisdictional authorities.
2. Exhaust/Negative Pressure. All exhaust and make up air systems
shall be by Tenant in accordance with Exhibit D and the Tenant
Handbook. As determined by Landlord, all tenants producing odors
within their premises shall be required to provide supplemental
exhaust to the exterior of the building to keep the premises at a
negative pressure relative to Mainstreet and all adjacent areas.
3. Smoke Venting. If the authority having jurisdiction requires smoke
venting from the Leased Premises because of Tenant additions to
Landlord's work in Exhibit
D-5
C, Tenant, at Tenant's expense, shall provide the complete required
smoke system. All smoke venting work shall be with Landlord
approval and in accordance with Tenant Handbook.
E. ELECTRICAL
1. Alterations. All additions and alterations, if any, to the Landlord
provided electrical system shall be designed and installed by
Tenant at Tenant's sole expense. All electrical work shall comply
with the National Electrical Code, all local codes, the local
jurisdictional authority and the requirements of the Tenant
Handbook. No appurtenances, including but not limited to light
fixtures, antennas, signs, etc., will be affixed to the exterior
walls or roof of Landlord's Building.
2.
Electrical Construction
a. Material - All electrical materials shall meet National
Electrical Code Standard, unless a better grade is required
by local Code. All materials shall be new and shall bear
evidence of approval by Underwriter's Laboratory (UL). All
conductors shall be copper. Aluminum conductors will not be
allowed.
b. Lighting Fixtures - Recessed fixtures installed in furred
spaces shall be connected by means of flexible conduit and
approved fixture wire, connected to a branch circuit outlet
box which is independent of the fixtures.
c. Fluorescent Fixtures - Additional fixtures to those provided
by Landlord in Exhibit C shall be provided and installed by
Tenant with switch legs and local switches rated 20 amps at
277 volts. All fluorescent fixtures shall have internal
protection devices. Fluorescent ballasts shall be high power
factor type with individual nonresetting overload
protection. Ballast harmonics may not exceed that Total
Harmonic Current Distortion allowable by the electric
utility. All lamps subject to public view shall have warm
white deluxe or better color rendition. Cool white may be
used only in storage areas not exposed to public view.
d. Additional exit signs, lights, and outlets shall be
furnished and installed by Tenant to meet code based on
Tenant's layout and interior partitioning.
F. PLUMBING
1. Alterations. All additions and alterations, if any, to the Landlord
provided plumbing system shall be designed by Tenant's Engineer and
submitted to Landlord prior to commencement of Tenant's Work and
installed by Tenant at Tenant's sole expense. All plumbing work
shall comply with all local codes and the Tenant Handbook.
2. Penetrations. All roof and/or wall penetrations required for
additional Tenant plumbing, mechanical or electrical work that are
above Landlord work as described in Exhibit C and any other
Landlord approved Tenant work shall be made by Landlord's
designated contractor at Tenant's expense in accordance with
Exhibit D and the Tenant Handbook.
G. FIRE PROTECTION SYSTEM
All revisions to the fire protection system required by Tenant's layout
that is above Landlord work as described in Exhibit C shall be performed by
Landlord's sprinkler contractor at Tenant's sole expense. Landlord's sprinkler
contractor shall design system revisions in accordance with Tenant's Store
Working Drawings. Such designs may involve additional heads, relocated heads,
heads in refrigeration boxes, toilet rooms, and kitchen exhaust ducts, and/or at
Tenant's request, heads located to conform with Tenant's ceiling pattern and
layout. All design and construction shall be governed by Code and the
requirements of Landlord's insurance carrier.
Tenants may be required by local code to provide fire extinguishers, at
least one of which is to be installed with in 25 feet of the Tenant's entry off
Mainstreet.
D-6
Tenant shall arrange directly with the local Telephone Company for
telephone service. The local Telephone Company will bring telephone
service to a point inside the Project. Tenant shall extend service,
furnish, install and maintain telephone wiring and equipment within the
Leased Premises to suit Tenant's requirements at Tenant's expense.
I. SIGNAGE
1. Requirements. Storefront signs must be illuminated during mall hours of
operation.
2. Guidelines. All signs shall be designed, constructed and located in
accordance with Landlord's Sign Criteria, Exhibit E, the Tenant Handbook, and as
approved by Landlord.
3. Suite Number and Tenant Trade Name. Landlord shall furnish and install a
suite number and Tenant trade name of Landlord's design at all exterior Tenant
doors and interior service/exit corridor doors. Landlord shall also install
suite number on the Mall storefront.
J. FIXTURES AND FURNISHINGS
Tenant shall furnish and install in the Leased Premises all fixtures, equipment,
shelving, trade fixtures, leasehold improvements, interior graphics, signs,
mirrors, cornices, covers and decorative light fixtures, extinguisher as
required by code, and other special effects, all as Landlord.
furnishings, decorations, portable fire approved by
All Tenant improvements, other than mechanical equipment, ceilings, and
lighting fixtures, shall be floor mounted unless written approval is obtained
from Landlord.
K. MISCELLANEOUS REQUIREMENTS
1. Tenant's C6ntractor. Work undertaken by Tenant at Tenant's expense
(a) shall not be awarded to Landlord's contractor without
Landlord's written consent; and (b) may only be awarded to a
reputable and bondable contractor or contractors licensed to do
business in the State where The Project is located. Tenant's
general contractor shall give Landlord a $2,000 security deposit
before commencement of construction. The security deposit will be
held against any damage caused by Tenant's contractor and shall be
refunded when Landlord's construction punch list is completed.
Tenant's contractor shall adhere to Landlord's policy of a drug and
alcohol free workplace.
2. Equipment Screening. Tenants requiring mechanical or electrical
equipment, antennas, and the like shall not have the same placed on
the roof or the exterior of the building without the prior express
written approval of Landlord. Said equipment must be screened from
view of the public if visible from any point within the project
site. All screening materials, construction details, and
construction techniques shall be approved by Landlord in writing
prior to any such work by Tenant.
3. Clean-UD. Tenant shall cause its contractors to maintain the Leased
Premises in a clean and orderly condition during construction. All
unusable shipping containers, packaging, and other debris shall be
broken down and contained within the Leased Premises until removed
on a daily basis by Tenant's contractor to containers provided by
Landlord outside Landlord's Building.
Flammable waste must be confined to covered metal containers until
removed by Tenant. All usable construction material, equipment,
fixtures, merchandise, etc. must always be contained within the
Leased Premises. Malls, courts, arcades, public corridors,
service/exit corridors and the exterior of Landlord's Building
shall be kept clean at all times. If Tenant fails to clean up,
Tenant hereby authorizes Landlord to clean up for Tenant at
Tenant's expense.
WB
D-7
4. Full Payment. Tenant shall satisfy Landlord that adequate
arrangements have been made to insure that all Tenant's contractors
shall be paid in full for work ordered by Tenant. Tenant is advised
to familiarize itself with the local mechanics lien laws and shall
hold the Landlord harmless for any liens filed against the property
of the Landlord for the work of the Tenant.
5. Character of Employees. Tenant will not employ any unfit person or
anyone not skilled in the work he is performing, or any workman
that is incompatible with the balance of the work force or who will
cause, or whose presence will cause, labor disputes or work
stoppages. In the event any employee(s) of Tenant or Tenant's
contractor(s) causes a labor dispute or work stoppage, Tenant
expressly agrees to have such employee(s) immediately removed from
The Project upon Landlord's request, and that Tenant's failure to
do so shall constitute an Event of Default under the Tenant's Lease
of which this Exhibit is a part.
SECTION 2: PROCEDURE AND SCHEDULES FOR THE COMPLETION OF TENANTS PLANS AND
SPECIFICATIONS
Unless otherwise notified by Landlord, all prints, specifications, and
other material to be furnished by Tenant as herein required shall be sent
to: Tenant Coordinator (Address to be furnished when available). Tenant
shall engage an architect ("Tenant's Architect") registered and licensed
to do business in the State where the Project is located to prepare the
Working Drawings and Specifications to be submitted for Landlord's
approval. The fees for Tenant's Architect shall be paid by the Tenant.
On each occasion that Tenant shall fail to submit or resubmit drawings,
specifications or any amendments thereto within the time periods provided
for in this Exhibit D, and such failure continues for five (5) days
following notice from Landlord that such drawings, specifications or
amendments thereto are overdue, Tenant shall pay to Landlord a fee as
outlined below for additional coordination and other services. The
payment of this fee shall not excuse Tenant from default for failure to
submit or resubmit drawings or specifications and shall not preclude the
exercise of default or other remedies by Landlord.
Floor Area of Leased Premises
1 ,500 or less sq. ft.
1,501 - 5000 sq. ft.
5,001 or more sq. ft.
A. LEASE OUTLINE DRAWINGS
Applicable Amount
$ 250.00
$ 500.00
$1,000.00
Following execution of the Lease of which this Exhibit is a part,
Landlord shall furnish Tenant with two (2) prints of the Lease Outline
Drawings (LOD) and a Design Criteria Handbook giving technical and design
information relative to the Leased Premises along with other drawings
that may be helpful to Tenant in the design of its store.
B. STORE DESIGN DRAWINGS
1. Within thirty (30) days of whichever of the following shall be the
later to occur:
(a) receipt of Lease Outline Drawings from Landlord or (b) the
execution of the Lease, the Tenant shall submit to Landlord one (1)
set of reproducible sepia prints and three (3) sets of blueline
prints of Store Design Drawings, showing the intended modifications
of the Leased Premises regarding design, character, and finishes.
The Store Design Drawings shall comply with the design criteria of
the project as described in this Exhibit D and in the Tenant
Handbook and shall set forth the requirements of Tenant within the
Leased Premises. Said Drawings shall include, but not be limited to
the following:
a. Architectural design of the modified space, including an
elevation of Landlord's storefront showing Tenant's signage,
floor plans, elevations, sections and renderings indicating
material and color selections and finishes, and layout
including location of fixtures both permanent and movable.
Provide the weights of all items to be suspended above from
the structure in excess of 100 lbs. each.
wB
D-8
b. Mechanical System: Any modifications to Landlord furnished
equipment and its location, duct distribution system,
diffuser locations, and any louvers or vents. Louvers or
vents to be provided for Tenant by Landlord at Tenant's
expense. Provide revised mechanical loads on forms provided
by Landlord in the Tenant Handbook.
c. Electrical System: Modifications to Landlord furnished
ceiling grid, lighting fixtures, outlets, and all other
existing electrical equipment. Provide revised electrical
loads on forms provided by Landlord in the Tenant Handbook.
d. Plumbing System: Floor plans showing the modified location,
layout, and type of fixtures being furnished, including
riser diagrams.
e. Fire Protection System: Location of any specialty heads Tenant's
architect may require.
f. Tenant shall identify in writing all intended exceptions to
the design criteria contained in the Tenant Handbook and
this Exhibit D.
2. After receipt of Store Design Drawings, Landlord shall timely
return to Tenant one (1) set of Store Design Drawings with
modifications and/or approval. If, upon receipt of approved Store
Design Drawings bearing Landlord's comments, Tenant wishes to take
exception thereto, Tenant may do so in writing within seven (7)
days from date of receipt of said drawings, by certified or
registered mail addressed to Landlord, at the above address, and
the notice address in the Lease. Unless such action is taken, it
will be deemed that all comments made by Landlord on Store Design
Drawings are acceptable to and adopted by Tenant.
3. If Store Design Drawings are returned to Tenant with comments, but
not bearing approval of Landlord, said Store Design Drawings shall
immediately be revised by Tenant and resubmitted to Landlord for
approval within seven (7) days of their receipt by Tenant.
C. STORE WORKING DRAWINGS AND SPECIFICATIONS
1. Store Working Drawings and Specifications shall be prepared in
strict compliance with the design criteria and requirements as set
forth in this Exhibit D and the Tenant Handbook and shall adhere to
the Store Design Drawings as approved by Landlord. Store Working
Drawings to minimum scales as called for below, and Specifications
shall include, but not be limited to, the following:
a. Key plan showing location of the Leased Premises relative to the entire
mall.
b. Floor plan at a minimum scale of 1/4" = 1'- 0".
c. Overall sections at 1/4" = 1 '0".
d. Reflected ceiling plan at a minimum scale of 1/4" = 1 '0".
e. Plan, elevation, and section of storefront (if to be constructed by
Tenant) at 1/4" - 1 '-0", with finish materials board including manufacturers,
model numbers, color numbers, and all other identifying information. Details of
storefront at 1-1/2" = 1 '0".
f. Interior elevations at 1/4" = 1 '0".
g. Full sections of types of partitions used at 1/2" = 1'0".
h. Details of special conditions encountered at 1-1/2" = 1'0". Door
schedule with jamb details at 1-1/2" = 1 '0".
j. Finish and color schedules with samples.
k. Plumbing, heating, ventilating, and cooling plans, at 1/4" = 1 '-0".
l. Mechanical details at 1-1/2" = 1'0".
m. Electrical plans at 1/4" = 1'0".
n. Electrical details, fixture schedules, and one line electrical riser
diagram.
0. Mechanical and electrical load tabulations on forms provided by Landlord
in the Tenant Handbook.
p. Structural load tabulations.
q. Specifications covering all of Tenant's Work, including, but not limited
to layout of fixture location, both permanent and movable.
D-9
r. Any and all other plans and specifications as may be required by the
local fire and building authorities or other governing bodies.
2. All Store Working Drawings and Specifications prepared by Tenant's
Architect shall be submitted by Tenant in the form of one (1) set
of reproducible sepia prints, specifications and three (3) sets of
blueline prints to Landlord for approval within 21 days from
receipt by Tenant of Landlord's written approval of Store Design
Drawings.
3. As soon as practicable after receipt of Store Working Drawings and
Specifications, Landlord shall return to Tenant one (1) set of
prints of Store Working Drawings and Specifications bearing
Landlord's comments. If Tenant wishes to take exception thereto,
Tenant may do so in writing by certified or registered mail
addressed to Landlord at the above address and at the notice
address in the Lease, within seven (7) days from the date of
receipt of Store Working Drawings and Specifications. Unless such
action is taken, it will be deemed that all comments made by
Landlord on Store Working Drawings and Specifications are
acceptable to and adopted by Tenant.
4. If Store Working Drawings and Specifications are returned to Tenant
with comments, but not bearing approval of Landlord, said Store
Working Drawings and Specifications shall immediately be revised by
Tenant and resubmitted to Landlord for approval within seven (7)
days of their receipt by Tenant.
5. "For Construction" Store Working Drawings and Specifications
prepared by Tenant's Architect shall be submitted by Tenant in the
form of one (1) set of mylar reproducible prints and specifications
and three (3) sets of blueline prints. "For Construction" shall be
marked clearly on each copy in red. Such drawings and
specifications shall reflect correction of all Landlord's comments
to the Store Working Drawings and Specifications returned by
Landlord.
6. Store Working Drawings shall be submitted for building permit after
such drawings have been approved by Landlord in the submittal
process as outlined above.
7. Landlord and Landlord's architect shall, from time to time, be
entitled to monitor Tenant's Work and shall have the right to
require all work which does not comply with Tenant's approved Store
Working Drawings and Specifications to be corrected within thirty
(30) days of notification to Tenant.
SECTION 3: PROCEDURE AND SCHEDULES FOR THE CONSTRUCTION OF THE LEASED
PREMISES BY TENANT
A. COMMENCEMENT OF CONSTRUCTION
Tenant shall start construction of its Leased Premises not later than ten
(1 0) days from either of the following dates, whichever shall be the
later to occur: (1) The date of receipt by Tenant of written notice from
Landlord that Landlord has substantially completed the work to be
performed by Landlord under Exhibit C, and payment therefor, as required
by Exhibit C is due (other than such work which cannot be performed by
Landlord until Tenant makes the Leased Premises ready for the performance
thereof) and that the Leased Premises are ready for Tenant's work; or (2)
the date on which Landlord approves the Tenant's Store Working Drawings
and Specifications for the Leased Premises. Tenant shall carry such
construction to completion with all due diligence.
B. GENERAL REQUIREMENTS
1. Tenant shall submit to Landlord, via certified or registered mail, at
least five (5) days prior to the commencement of construction the following
information:
a. Copy of building and all other permits needed to perform
Tenant's Work within the Leased Premises.
b. The names and addresses of the general, mechanical, plumbing
and electrical contractors Tenant intends to engage in the
construction of the Leased Premises.
D - 10
c. The actual commencement of construction date and the estimated date
of completion of construction work, Fixturing work, and date of
projected opening.
d. Performance and payment bonds from Tenant's general contractor and
major subcontractors, including, but not limited to the mechanical,
electrical and plumbing subcontractors, in amounts satisfactory to
the Landlord, to cover 100% of the contract amounts plus all change
orders.
e. Itemized statement of estimated construction costs including
architectural, engineering, and contracting fees.
f. Evidence of insurance with a company or companies authorized to
transact business in the State where The Project is located, as
required below.
g. Tenant's General Contractor's $2,000.00 Security Deposit.
2. Tenant shall secure, pay for, maintain, and cause its contractors and
subcontractors to secure, pay for, and maintain, during the continuance of
construction and Fixturing work within the Leased Premises, all of the insurance
policies required in the amounts as set forth herein, together with such
insurance as may from time to time be required by City, County, State or Federal
laws, Codes, regulations or authorities. Tenant's Work may not commence, nor may
Tenant permit its contractors and sub-contractors to commence any work, until
all required insurance has been obtained and certificates of such insurance have
been delivered to Landlord. Insurance policies shall name the Landlord,
Landlord's Architect and General Contractor for the project as additionally
insured. Certificates of insurance shall provide that no change or cancellation
of such insurance coverage shall be undertaken, without thirty (30) days written
notice to Landlord. Landlord shall have the right to require Tenant, and Tenant
shall have the duty, to stop work in the Leased Premises immediately if any of
the coverage required herein lapses during the course of the work, in which
event Tenant's Work may not be resumed until the required insurance is obtained
and satisfactory evidence of same is provided to the Landlord.
a. Tenant's General Contractor's Required Minimum Coverages and Limits of
Liability.
(1) Worker's Compensation Insurance, as required by State law,
and Employer's Liability Insurance with a limit of not less
than $ 1 ,000,000 (or more if required by the law 'of the
State) and any insurance required by any Employee Benefit
Act or similar statute applicable where the work is to be
performed as will protect the contractor and subcontractors
from any and all liability under the aforementioned act(s)
or similar statute.
(2) Comprehensive General Liability Insurance (including
Contractor's Protective Liability) in an amount not less
than $5,000,000 per occurrence whether involving personal
injury liability (or death resulting therefrom) or property
damage liability or a combination thereof (combined single
limit coverage) with a minimum aggregate limit of
$5,000,000. Such insurance shall include explosion, collapse
and underground (X, C and U) coverage and contractual
liability coverage for personal injury, death, and damage to
the property of others arising from construction at the
Leased Premises, whether performed by Tenant's contractors,
subcontractors, or sub-subcontractors, or by anyone directly
or indirectly employed by any of them.
(3) Comprehensive Automotive Liability insurance, for the
ownership, maintenance, or operation of any automotive
equipment, whether owned, leased, or otherwise held,
including employer's non-ownership and hired car liability
endorsements, in an amount not less than $ 5,000,OOOper
occurrence and $ 5,000,O00aggregate, combined single limit
bodily injury and property damage liability.
WR
D- 11
Such insurance policies shall insure the Tenant's general contractor and
all subcontractors against any and all claims for bodily injury including death
resulting therefrom and damage to the property of others arising from its
operations at the Leased Premises or in connection with construction of the
Leased Premises, whether performed by the Tenant's general contractor,
subcontractors, or sub-subcontractors, or by anyone directly or indirectly
employed by any of them.
b. Tenant's Insurance Requirements
(1) Tenant shall obtain Owner's Protective Liability Insurance
as will insure Tenant against any and all liability for
damage from bodily injury, including death resulting
therefrom, or property damage or a combination thereof which
may arise from work in connection with the Leased Premises,
and any other liability for damages which Tenant's general
contractor and/or subcontractor are required to insure
against under any provisions herein. Landlord and Landlord's
Architect and General Contractor shall be named as
additional insureds. Said insurance shall be provided in
minimum amounts of $5,000,000 per occurrence and $5,000,000
aggregate, combined single limit bodily injury and property
damage liability.
(2) Tenant's Work Insurance: Tenant shall insure 100% of the
value of the work in the Leased Premises as it relates to
the building within which the Leased Premises are located,
with an "all risk" perils property insurance policy or a
completed value "all risk" perils Builder's Risk policy,
naming the interest of the Landlord and the Tenant's general
contractor and all subcontractors, as their respective
interests may appear, within a radius of one hundred feet
(100') of the Leased Premises.
3. All contractors engaged by Tenant shall be licensed contractors in the
State in which The Project is located possessing good labor relations, capable
of performing quality workmanship and working in harmony with Landlord's General
Contractor and other contractors on the job. All work shall be coordinated with
the general project work.
4. Tenant's contractors and construction shall comply in all respects with
applicable federal, state and local statutes, ordinances, regulations, laws and
codes. All required building and other permits in connection with the
construction and completion of the Leased Premises shall be obtained and paid
for by the Tenant.
5. Tenant shall complete all work within the Leased Premises as
expeditiously as possible, but in no event later than in time to open for
business on the Grand Opening Date. Should Tenant fail to complete its work
within this schedule, Landlord may, at Landlord's option, install temporary
storefront or barricade at the Leased Premises at Tenant's expense. Temporary
storefront and other work performed by Landlord, which was made necessary due to
the Tenant's failure to complete its work in time for the Grand Opening Date,
shall be payable to Landlord.
6. Landlord shall have the right to perform, on behalf of and for the
account of Tenant, any of Tenant's Work which Landlord deems necessary to be
done on an emergency basis or which pertains to structural components, the
general utility systems for the Project, roof and exterior wall penetrations, or
the erection of temporary barricades and temporary signs, during construction
for the period following the opening of the Project for business. Landlord will
provide such work at Tenant's expense.
7. Tenant's Work shall be subject to the inspection and approval of
Landlord and Landlord's Architect.
8. Tenant shall pay or reimburse Landlord for all costs incurred by
Landlord (including deposits) for all utility meters for the Leased Premises.
D - 12
9. Upon the completion of the Tenant's Work, all facilities shall be in
full use without defects.
10. All work performed by Tenant shall be performed so as to cause no
interference with other tenants and the construction and operation of The
Project. Tenant will take all precautionary steps to protect its facilities and
the facilities of others affected by Tenant's Work and properly police same.
Construction equipment and materials are to be located within the Leased
Premises and truck traffic is to be routed in and from the site, all as directed
by Landlord and so as not to burden the construction and operation of The
Project.
11. Upon and from the completion of Tenant's Work in the Leased Premises
and acceptance by Landlord's Architect, a minimum one-year warranty on all work,
materials, and equipment shall be provided to Landlord by Tenant.
12. Landlord shall have the right to stop Tenant's Work whenever necessary
to obtain compliance with applicable building and safety codes or the approved
Store Working Drawings and Specifications.
13. Tenant and its contractors shall comply with the guidelines for Tenant
work procedures and temporary construction facilities set forth in the Tenant
Handbook, and Landlord's Construction Rules and Regulations which may be issued
from time to time.
14. Landlord shall have the right to order any Tenant or Tenant's
contractor who willfully violates any of the above requirements to cease work,
and to remove himself and his equipment and employees from The Project.
C. TEMPORARY SERVICES AND FACILITIES DURING CONSTRUCTION
1. Utility costs or charges for any service to the Leased Premises
shall be the responsibility of Tenant from the date Tenant
commences work or is obligated to commence work, whichever is
earlier.
2. If necessary, construction. for temporary
Tenant will provide temporary heat for the Leased Premises during No open
burners are permitted and only electricity may be used heat.
3. temporary Electrical Services. If electrical service is not available in
the Leased Premises during construction, Landlord shall provide electrical
service in an area designated by the Landlord. Tenant shall request, in writing,
permission to connect temporary lines to the power source for service to the
Leased Premises. Tenant shall reimburse Landlord for the Temporary Electric
Services.
4. temporary Trash Removal. During initial construction, Fixturing and
stocking, Landlord shall provide trash removal service from the service areas.
It shall be Tenant's responsibility to break boxes down and place trash daily in
the containers provided. Trash accumulation will not be permitted overnight in
the Leased Premises, mall or service/exit corridors. Tenant shall not allow
trash to accumulate within the Leased Premises nor shall Tenant place any trash
in the service/exit corridor or mall areas adjacent to the Leased Premises.
Tenant shall reimburse Landlord for the Temporary Trash Removal.
The period shall start with the date Tenant starts construction in its
premises and ends with the date Tenant opens for business.
In addition, Tenant shall pay any costs incurred by Landlord in removing
trash from areas in and around the Leased Premises. Landlord's decision as to
which Tenant is responsible for trash left outside the Leased Premises will be
reasonable and equitable, and Landlord's decision will be final.
5. Plans Review/Tenant Coordination. Landlord or its architect and/or
engineer shall review Tenant's plans and specifications for compliance with the
provisions of this Exhibit D and the Tenant Handbook. In addition, Landlord
shall assign a Tenant Coordinator(s) to work with Tenant and Tenant's architect,
engineer and contractor for the design and construction of the Leased Premises.
Tenant shall reimburse Landlord for such plan review and tenant coordination.
D - 13
6. temporary Storefront. If Tenant is not open for business in the Leased
Premises and Landlord's Retail Development is open, or if, in Landlord's sole
judgment, Landlord determines that a temporary storefront is necessary so as not
to disrupt the construction, opening or operation of any portion of The Project,
then Landlord shall install, at Tenant's expense, for Tenant's use during
construction a full height temporary barricade on the storefront lease line.
Tenant shall reimburse Landlord for the temporary storefront. Upon completion of
Tenant's construction and Fixturing in the Leased Premises, Tenant shall remove,
disassemble and dispose of such temporary storefront.
7. Coming Soon Sign. If during Tenant's initial construction, tenant
Fixturing and merchandise stocking, The Project is open (or shall open) for
business, Landlord will provide and install, following the earlier to occur of
(a) erection of the initial construction barricade, or (b) completion of the
storefront for the Leased Premises, a "coming soon" sign on the front (barricade
or storefront, as the case may be) of the Leased Premises. Landlord shall also
install suite number on mall storefront. Tenant shall reimburse Landlord for
providing such sign.
8. Suite Number and Tenant Trade Name. Landlord shall furnish and install
suite number and tenant trade name sign adjacent to Tenant's exterior and/or
interior rear exit door(s) as well as storefront in accordance with Landlord's
standard. Tenant shall reimburse Landlord for this service.
9. The charges for Temporary Services and Facilities as described in this
subsection C shall be:
Size of Leased Premises Landlord's Charge
10,000/sf $1.00 psf
10. The charges for all work performed or to be performed by Landlord for
or on behalf of Tenant shall be due and payable within 5 days after billing by
Landlord. Landlord may decline at Landlord's sole judgement to proceed with work
at Tenant's expense until Landlord's receipt of payment thereof.
D. COST PLUS ADMINISTRATION FEE WORK BY LANDLORD IN PREMISES AT TENANT
EXPENSE
The following work in Tenant's premises shall only be accomplished by
Landlord in Landlord's building. The Tenant shall contract with the Landlord to
furnish the following work items if required by Tenant's store design at
Landlord's actual cost plus fifteen percent (1 5%) cost of administration, and
the cost of any such item of work shall be payable to Landlord in full within
five (5) days after receipt of invoice therefore.
1. Opening in rated demising partitions and exterior walls provided such
openings/penetrations have been approved in advance by Landlord in writing.
2. Roof Openings. With Landlord's prior written permission, roof openings
for any purpose shall include supporting structures, curbs, roof patching and
flashing. Tenant shall be responsible for temporary weather protection, and
installation of ducts, pipes, equipment and counter flashing. Landlord reserves
the right to refuse to permit the furnishing of any openings which exceed the
capability of the structural system or which in Landlord's opinion would have an
appearance detrimental to Landlord's Building.
3. Plumbing Service. With Landlord's written permission, additional
sanitary sewer or relocation of sanitary sewer.
4. Electric Service. With Landlord's written permission, additional
electric service or relocation of electrical service.
5. Storefront. With Landlord's prior written permission, changes to
Landlord furnished interior and exterior storefront including but not limited to
additional doors and relocation of doors.
6. Landlord's Labor (including overtime, demurrage and waiting time) and
equipment used in any work Landlord performs for Tenant.
D - 14
7. Architectural and/or Engineering Fees incurred by Landlord as a result
of Tenant requesting any services in excess of the standard review services
described in Section C.5.
8. Building Department Expeditor Fees incurred by Landlord in expediting
Tenant Building Permit, Controlled Inspection and other requirements for
temporary and permanent Certificates of Occupancy on the building and the Tenant
Premises.
9. Building Permits Microfilming and Documentation Fees paid by Landlord on
behalf of the Tenant in expediting the approval of Building Permits and other
approvals of Agencies having jurisdiction.
E. CERTIFICATE OF ACCEPTANCE
Upon the completion of Tenant's construction and Fixturing work within
its Leased Premises Tenant shall so notify Landlord in writing. Landlord,
upon receipt of such notice from Tenant, shall issue a Certificate of
Acceptance of said premises provided, however, that the issuing of such a
Certificate shall be contingent upon all of the following:
1. The satisfactory completion by Tenant of the work to be performed
by Tenant under this Exhibit D, in accordance with good workmanship
and the approved Store Working Drawings and Specifications
therefor.
2. Receipt by Landlord from Landlord's Architect of a premises
acceptance letter. This letter can be issued only upon Tenant's
correction of the deficiencies noted by Landlord or Landlord's
Architect upon any inspection of Leased Premises.
3. Tenant shall have furnished Landlord with waivers of liens and
sworn statements, or satisfactory substitutes for same, in such
form as may be required by Landlord, from all contractors,
subcontractors and other persons performing labor and/or supplying
materials in connection with such work showing that all of said
persons have been compensated in full.
4. Submission by Tenant to Landlord of a detailed breakdown of
Tenant's final and total construction costs together with receipted
invoices showing payment thereof.
5. Submission by Tenant to Landlord of the warranties for the benefit
of Landlord on the workmanship, materials, and equipment
incorporated into the Leased Premises as required in Section 3.B.1
1 of this Exhibit.
E- 1
Exhibit "E"
Sign Criteria
1. Tenant is required to identify the Leased Premises by a sign on the
storefront. The general criteria for the design of Tenant' signage
("sign criteria") is set forth below. More specific sign criteria for
The Project as a whole and certain tenants in certain designated
locations such as in food courts and mall courts is set forth in the
Tenant Handbook, (Tenant Design Criteria) hereinafter referred to as
"Tenant Handbook".
2. Costs incurred in design, construction and installation, as well as
maintenance shall be the responsibility of Tenant. The Tenant must
obtain permits to erect and connect the sign from local community
officials before the sign is installed.
3. It is intended that the signage be developed in an imaginative and
varied manner so as to enhance the architectural treatment of the facade
in general and be harmonious with the overall architecture and thematic
consideration of the mall in particular. Although current signage
practices of the Tenant shall be considered, they will not govern the
signs to be installed.
4. Approval of signs shall be solely the right of the Landlord, and Tenant
must submit all candidates for signage to the Landlord for approval in
the form of working drawings before manufacturing or further assembly
begins. Submission shall be to Landlord, in the form of shop drawings
with all pertinent details necessary for construction and installation
included. Submission shall be a minimum of ninety (90) days before
proposed installation date, and tenant is expected to have sign
manufactured and ready for installation within forty-five (45) days of
approval by Landlord or Landlord's agent before installation, at project
site. Landlord reserves the right to reject signs not conforming to
approved drawings regardless of stage of completion or installation.
5. The Tenant's storefront sign shall occupy an area of the storefront
facade designated in the Tenant Handbook and/or the Lease Outline
Drawing, and/or by the Project Architect. The design 9f the storefront
is to be considered by Tenant in the development of signage. In general,
signs will be installed in the designated sign area above the entry
door. Variation of this criteria shall be subject to Landlord's prior
written approval, which shall be solely at the discretion of Landlord.
No sign shall be installed closer than three feet (3'-0") from the end
of the Tenant storefront on both sides.
6. Signage shall be limited to the name of the store. Additional elements
will be considered as long as they enlarge, expand, or otherwise clarify
the name of the store.
7. Signs which are comprised of unaltered sans serif typefaces are,
unacceptable, as will be signs or type faces which are difficult to
read.
in general,
8. The use of corporate identifications or logos will be considered, but
prior use or identification with a particular sign or logo will not
govern Landlord's approval for Tenant use. Tenant agrees that Landlord's
rejection of particular logo or sign shall not constitute a violation of
Lease by Landlord. In the case of conflict between the sign criteria and
other provisions of the Lease, Tenant agrees that the sign criteria and
Landlord's discretion shall prevail. Tenant shall not hold Landlord
liable for damage or injury as a result of the sign criteria or the
implementation of the sign criteria by agreement of both parties.
9. A variety of fabrication materials shall be considered, however
construction shall be guaranteed for a period of at least five (5) years
against peeling, cracking, crazing, blistering, or any other degradation
of surface or materials. Tenant shall obtain, from manufacturer of the
sign, a five (5) year warranty covering the condition of finished
surfaces, construction and operation of sign.
10. All electrical signs shall carry approval of Underwriters Laboratories
(U.L.) on all component parts and on the complete display. Maximum
brightness of lit signs shall be fifty foot (50') Lamberts measured one
foot (1') from the source of light. No blinking, moving or flashing
lights shall be allowed. Surface lighting may be reduced in order to
accentuate lit signage. There will be no special advantage in terms of
visibility of internally lit over externally lit signs.
11. No exposed raceways, ballast boxes or electrical transformers will be
permitted except as required to be exposed by local building codes.
12. Landlord shall not be responsible for signs improperly installed or
manufactured, and those signs not meeting code requirements shall, at
Tenant's expense, be removed and built to code specifications before
reinstallation. Signs meeting Landlord's sign criteria, but not meeting
local code requirements, shall be the responsibility of Tenant, and
Tenant agrees not to hold Landlord liable for costs due to conflict
between these sign criteria and code, should such conflict exist under
present code or due to future changes in code.
13. Notwithstanding anything herein contained to the contrary, Tenant
shall have the right to replace any existing sign(s) of said Tenant as
long as such replacement meets the sign criteria listed within this
document, the Tenant Handbook, and is accompanied by Landlord's prior
written approval prior to installation.
14. No other signs of any type or purpose, permanent or temporary, shall be
permitted to be displayed upon the facade, windows or within the
dimension prescribed in Section 4.3 of the Lease, behind an unobstructed
window unless and until such sign has been submitted to Landlord and has
received Landlord's prior written approval. Landlord shall be the sole
judge of what constitutes an unobstructed window. Removal of signage of
any type installed without Landlord approval shall be mandatory before
said sign shall be considered by Landlord for installation.
15. Landlord shall not be required to approve signage for any reason
other than conformance with the sign criteria in this Exhibit E and the
Tenant Handbook Scheduled opening dates and other time constraints shall
not be reason to approve signage which Landlord otherwise would consider
unsuitable for manufacture or installation. Tenant agrees not to hold
Landlord liable for any damage caused to Tenant due to signage or lack
of signage as a result of Landlord's insistence upon conformance with
the sign criteria or the Landlord's withholding of approval of submitted
signage.
16. In the event that Tenant is unable to supply satisfactory signage
design by the Fixturing period of Tenant's store, Landlord shall have
the option of providing such design. In such a case, Tenant agrees to
pay prior to store opening 'all expenses involved in the design,
manufacture, and installation of said signage plus 15% cost of
administration, and Tenant agrees to waive rights to reject said signage
and agrees not to oppose installation of said signage.
17. Signage indicated on drawings and mechanicals submitted for reasons
other than signage evaluation (as described in this Exhibit E and the
Tenant Handbook) shall not constitute a signage submittal. No approval
of such drawings and mechanicals shall constitute approval of signage.
18. Food Court Tenants shall be permitted to install one menu board within
the Leased Premises subject to Landlord's prior design review and
written approval. Refer to the Tenant Handbook for type, size and
location allowed.
19. Procedure for Submittal and Approval of Sign Drawings:
a. Approval of store design drawings or working drawings and specifications
for Tenant's Leased Premises does not constitute approval of any sign work.
Approval of signs shall be solely the right of Landlord, and Tenant must submit
all candidates for signage to the Landlord for approval in the form of sign
designer's working drawings and/or manufacturer's shop drawings before
manufacturing or assembly begins. Drawings by Tenant, its architect or anyone
not qualified to produce signage drawings are not acceptable. At the same time
as Tenant's initial submission of store working drawings and specifications to
Landlord, Tenant shall submit one (1) set of reproducible prints and
specifications and three (3) sets of blue prints, along with samples of all
material and colors, for all its proposed sign work. The drawings shall clearly
show location of sign on storefront elevation drawing, size and stroke
dimensions, graphics, color, construction, and attachment details. Full
information regarding electrical load requirements and brightness in footcandles
shall also be included. Landlord reserves the right to reject signs not
conforming to approved drawings regardless of state of completion or
installation.
F-i
b. As soon as practical after receipt of the sign drawings, Landlord shall
return to Tenant one (1) set of such sign drawings with the suggested
modifications and/or approval. If, upon receipt of approved sign drawings
bearing Landlord's comments, Tenant wishes to take exception thereto, Tenant may
do so in writing, by certified or registered mail addressed to Landlord within
seven (7) days from the date of Tenant's receipt of such sign drawings. Unless
such action is taken, it will be deemed that all comments made by Landlord on
the sign drawings are acceptable to and approved by Tenant.
c. If sign drawings and specifications are returned to Tenant with
comments, but not bearing approval of Landlord; said drawings and specifications
shall be revised immediately by Tenant and resubmitted to Landlord for approval
within seven (7) days of their receipt by Tenant.
Exhibit "G" COMMENCEMENT AND EXPIRATION DATE DECLARATION
LANDLORD:
TENANT:
LEASE DATE:
STORE NUMBER:
Tenant acknowledges and agrees that the Commencement Date of the above
referenced Lease is __________________________________________ and the term of
the Lease expires on
TENANT:
By:
Its:
1/2
1 Toys nte,national/GfeatLakescrossingl5 15gB RIDER ATTACHED TO AND MADE A
PART OF LEASE DATED JUNE 25, 1998, ENTERED INTO BY AND BETWEEN TAUBMAN AUBURN
HILLS ASSOCIATES LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP, AS
LANDLORD, AND TOYS INTERNATIONAL1 INC., A CALIFORNIA CORPORATION, AS TENANT.
This Lease is hereby modified and supplemented as set forth herein. Any
conflict between a term, condition or provision contained in this Rider with any
term, condition or provision contained in the printed Lease Agreement shall be
resolved in favor of this Rider.
Section 1.1(a): On page 1, line 8, in place of the deletion, insert "Great
Lakes Crossing" On page 1, line 1 0, in place of the deletion, insert "Michigan"
Section 1.2:
On page 2, line 31, in place of the deletion, insert "January"
On page 2, line 32, in place of the deletion, insert "February"
At the end of the Section, insert "In the event Tenant does not achieve Gross
Sales (as herein defined) of at least Two Hundred Fifty and 00/1 0Oths Dollars
($250.00) per square foot of floor area in the Premises, in the period between
the twenty-fifth (25th) and thirty-sixth (36th) months of the term hereof, then
Tenant shall, for a period of thirty (30) days after the close of such
thirty-sixth (36th) month, have the option, upon ninety (90) days prior written
notice to Landlord, of terminating this Lease; provided, however, that Tenant
shall not be entitled to terminate this Lease if Tenant shall have been, or is,
in default of this Lease. Any such notice to terminate shall be accompanied by a
certified statement of Tenant's actual Gross Sales for such period. From and
after the effective date of Tenant's notice to terminate, this Lease shall be of
no further force or effect, subject, however, to the payment by Tenant to
Landlord of all sums then due and owing or having accrued to Landlord. In the
event that Tenant fails to exercise its option to terminate this Lease within
the required time period, then such option shall, upon expiration of the
applicable period, become null and void and be of no further force or effect.
Tenant shall only be permitted to exercise its option to terminate this Lease
for failure to achieve certain Gross Sales during a particular time period if
Tenant shall have operated its business in accordance with the requirements of
Section 4.2 on each day during the entire time period in question. At Landlord's
sole option, the above stated Gross Sales figure shall be reduced by 1/360th for
each day during the above stated time period that Tenant shall not have operated
its business in the leased premises."
Section 1.3: On page 2, line 59, in place of the deletion, insert "November
12, 1 998"
Section 1.4: On page 2, line 63, in place of the deletion, insert "Except
for delays as described in Article XVI and provided that Tenant has been given
the thirty (30) day Fixturing Period, in"
(deleted)
Section 2.5: On page 5, line 6, in place of the deletion, insert "tenth
(10th)"
Section 3.2: At the end of the Section, insert" Provided that Tenant shall
not be in default under this Lease, then, Landlord shall pay to Tenant, as a
Tenant inducement, the sum of One Hundred Fifty Thousand and O0/lOOths Dollars
($150,000.00), within sixty (60) days following the Commencement Date of this
Lease and Tenant's opening for business. In the event that this Lease is
terminated prior to expiration of the stated lease term, Tenant shall
immediately repay to Landlord an amount equal to the then unamortized portion of
the Tenant inducement paid to Tenant, which amortization shall be on the
straight-line basis over the full stated lease term. The cost of Tenant's
leasehold improvements pursuant to Section 1.1(b) hereof shall be less the
amount of such Tenant inducement."
Section 4.8: On page 8, line 70, after the word "miles", insert ", with
reference to outlet stores only,"
Section 5.2(b): At the end of the subsection, insert "Tenant's
proportionate share of Common Area Maintenance Expenses per square foot of floor
area in the Leased Premises for the first full Lease Year of the Term shall not
exceed Ten and 00/1 O0ths Dollars ($10.00) per square foot. It is further
understood and agreed that the Tenant's proportionate share of Common Area
Maintenance Expenses per square foot during each Lease Year shall in no event
increase by more than five percent (5%) over such share for the previous Lease
Year."
Section 7.1: At the end of the Section, insert "Taxes shall include,
without limitation, the so-called 'Michigan Single Business Tax' of Landlord as
the same presently exists and as the same may be amended in whole or in part
from time to time."
Section 7.2: At the end of the Section, insert "Tenant's proportionate
share of the Taxes per square foot of floor area in the Leased Premises for the
first full Lease Year of the Term shall not exceed Four and 00/100ths Dollars
($4.00) per square foot. It is further understood and agreed that the Tenant's
proportionate share of Taxes per square foot during each Lease Year shall in no
event increase by more than five percent (5%) over such share for the previous
Lease Year."
Section 8.4: On page 13, line 52, after the word "Harmless.", insert
"Except with respect to the negligence or willful misconduct of Landlord, its
agents or employees (unless covered or required to be covered by Tenant's
insurance),"
At the end of the Section, insert "Landlord hereby indemnifies and agrees
to save harmless Tenant, its officers, directors, partners, employees and agents
from and against any and all claims, actions, damages, liabilities, costs and
expenses, including attorneys' fees, in connection with loss of life, personal
injury and/or damage to property arising from or out of any occurrence in the
common areas of the Shopping Center unless caused by the negligence or willful
misconduct of Tenant, its agents, contractors, employees, officers, directors,
partners, subtenants or concessionaires."
Section 9.2: "Reconstruction"
On page 14, lines 49, 52,53, 54 and 55, after the word "Landlord's", insert
On page 14, line 55, after the word "Tenant's", insert "Reconstruction"
On page 14, line 61, in place of the first deletion, insert ""Landlord's
Reconstruction Work" shall be all work required to"
On page 14, line 61, in place of the second deletion, insert "the"
On page 1 4, line 62, after the word "Landlord", insert "pursuant to
Exhibit C and Exhibit D,"
On page 14, line 66, after the word "thereof.", delete the period and
insert "("Tenant's Reconstruction Work")"
Section 11.1(b): On page 16, line 6, after the word "is", insert "publicly"
Section 13.2: On page 1 8, line 1 5, in place of the deletion, insert
"Upon"
Section 14.1: On page 19, line 27, in place of the deletion, insert "(i) a
default which results in a total monetary outstanding balance on excess of
$20,000.00 or (ii) a default pursuant to Section 14.1 (a) (iii) of this Lease,"
On page 19, line 29, after the word "upon", insert "ten (10) days prior"
On page 19, line 30, after the word "Lease", insert "(unless the default is
cured within the ten [10] day period after notice)"
Article XVI: On page 22, line 7, after the word "restrictions", insert "or
delays in issuing permits (provided that the delays do not result from Tenant's
actions or failure to act)"
Section 19.1: At the end of the Section, insert "Tenant shall be solely
responsible for and shall promptly pay all charges for water, gas, heat,
electricity, sewer and any other utility used upon or furnished to the Leased
Premises. So long as Landlord shall furnish all electricity required for the
conduct of Tenant's business, Tenant agrees to purchase such electricity from
Landlord and to pay for same on the following basis: (i) Landlord, at its sole
expense, will provide and install appropriate meters at Tenant's Leased Premises
for measuring Tenant's consumption of electricity. Accuracy of meters supplied
by Landlord shall be maintained by Landlord within the limits prescribed by the
applicable public utility commission regulations. (ii) Landlord will render
monthly statements of charges to Tenant for Tenant's consumption
of electricity for the previous month. Charges for electricity shall be at
the same rates, terms and conditions as rates, terms and conditions for
comparable service from the local public utility company servicing the Shopping
Center as filed from time to time with the applicable public utility commission.
Tenant agrees to pay such charges within ten (10) days of the date of such
statement. In no event shall Landlord charge Tenant rates which are higher than
the rates of such local public utility company for service comparable to that
furnished to Tenant. Landlord shall also have the right to periodically estimate
the monthly amount required to be paid by Tenant to Landlord with respect to
such service provided by Landlord and such estimated monthly amount shall be
paid by Tenant on the first day of each calendar month, in advance, at the place
and in the manner specified for payments of Minimum Rent hereunder. Landlord
shall have the right to change such estimated amount at any time and from time
to time, by notice to Tenant. If the total of the estimated monthly payments
made by Tenant for any lease year or calendar year shall be less than the actual
amount due from Tenant pursuant to the provisions of this Section, Tenant shall
pay to Landlord the difference between the amount paid by Tenant and the actual
amount due within ten (10) days after submission to Tenant of Landlord's
statement and invoice therefor; and if the total of the estimated payments made
by Tenant for any such year shall exceed the actual amount due from Tenant, the
excess amount paid shall be credited against the next payment due from Tenant to
Landlord under this Section. Landlord, at any time at its option and upon not
less than one hundred eighty (180) days' prior written notice to Tenant, may
discontinue the furnishing of electricity to the Leased Premises and in such
case, Tenant shall contract for the supply of such electricity with the public
utility company supplying electricity to the neighborhood and Landlord shall
permit its equipment, to the extent available (other than high-voltage
transformers and meters), suitable and safely capable therefor, to be used for
the purpose of supplying such electricity. Notwithstanding any other provisions
of this Lease, the value of, or (as applicable) the rate for, each utility
furnished by Landlord, which utility shall be subject to regulation by a public
agency, shall be computed for the purposes of this Lease in accordance with the
maximum rate schedules which would be applicable if Tenant were at the time a
direct customer of the applicable public utility company serving the Shopping
Center (subject to any separate rate schedules for utility services as may be
included in the exhibits to this Lease). The value of, or (as applicable) the
rate for, any nonregulated utility service provided by Landlord shall be
computed at the prevailing rates which would be paid by Tenant for direct
comparable service from contractors in the local area, except to the extent that
specific rates are otherwise set forth in this Lease. The public utility
corporation referred to in this Section 1 9.1 shall be the utility company named
in Exhibit CC attached hereto (if any), or the successor to such company or such
other company designated by Landlord."
Exhibit C: On page C-2, line 30, insert "Notwithstanding the foregoing, the
Leased Premises shall have one (1) closure of fifteen foot (1 5') width."
Exhibit CC:
On page 1, line 47, in place of the deletion, insert "1.51"
On page 1, line 48, in place of the deletion, insert "1.47"
In the Presence of: TAUBMAN AUBURN HILLS ASSOCIATES
LIMITED PARTNERSHIP,
a Delaware partnership
By:
Its: Authorized Agent
LANDLORD
TENANT
TOYS INTERNATIONAL, INC.,
a California corporation
By:
Name:
Title:
GUARANTY
Annexed to and forming a part of Lease dated June 25, 1998 by and between
TAUBMAN AUBURN HILLS ASSOCIATES LIMITED PARTNER~SHIP,
Landlord, and TOYS INTERNATIONAL, INC., Tenant.
The undersigned, PLAY CO. TOYS & ENTERTAINMENT CORP., a Delaware
corporation (hereinafter sometimes referred to as the "Guarantor" or
"Guarantor(s)"), whose address is 550 Rancheros Drive, San Marcos, California
92069, in consideration of the leasing of the leased premises described in the
annexed Lease ("Lease") to the above named Tenant ("Tenant"), does hereby
covenant and agree as follows:
A. The undersigned does hereby absolutely, unconditionally and irrevocably
guarantee the full, faithful and timely payment and performance by Tenant of all
of the payments, covenants and other obligations of Tenant under or pursuant to
the Lease. If Tenant shall default at any time in the payment of any rent or any
other sums, costs or charges whatsoever, or in the performance of any of the
other covenants and obligations of Tenant, under or pursuant to the Lease, then
the undersigned, at its expense, shall on demand of said Landlord ("Landlord")
fully and promptly, and well and truly, pay all rent, sums, costs and charges to
be paid by Tenant, and perform all the other covenants and obligations to be
performed by Tenant, under or pursuant to the Lease, and in addition shall on
Landlord's demand pay to Landlord any and all sums due to Landlord, including
(without limitation) all interest on past due obligations of Tenant, costs
advanced by Landlord, and damages and all expenses (including attorneys' fees
and litigation costs), that may arise in consequence of Tenant's default. The
undersigned hereby waives all requirements of notice of the acceptance of this
Guaranty and all requirements of notice of breach or nonperformance by Tenant.
B. The obligations of the undersigned hereunder are independent of, and may
exceed, the obligations of Tenant. A separate action or actions may, at
Landlord's option, be brought and prosecuted against the undersigned, whether or
not any action is first or subsequently brought against Tenant, or whether or
not Tenant is joined in any such action, and the undersigned may be joined in
any action or proceeding commenced by Landlord against Tenant arising out of, in
connection with or based upon the Lease. The undersigned waives any right to
require Landlord to proceed against Tenant or pursue any other remedy in
Landlord's power whatsoever, any right to complain of delay in the enforcement
of Landlord's rights under the Lease, and any demand by Landlord and/or prior
action by Landlord of any nature whatsoever against Tenant, or otherwise.
C. This Guaranty shall remain and continue in full force and effect and
shall not be discharged in whole or in part notwithstanding (whether prior or
subsequent to the execution hereof) any alteration, renewal, extension,
modification, amendment or assignment of, or subletting, concession,
franchising, licensing or permitting under, the Lease. Without limiting the
foregoing, this Guaranty shall be applicable to any obligations of Tenant
arising in connection with a termination of the Lease, whether voluntary or
otherwise. The undersigned hereby waives notices of any of the foregoing, and
agrees that the liability of the undersigned hereunder shall be based upon the
obligations of Tenant set forth in the Lease as the same may be altered,
renewed, extended, modified, amended or assigned. For the purpose of this
Guaranty and the obligations and liabilities of the undersigned hereunder,
"Tenant" shall be deemed to include any and all concessionaires, licensees,
franchisees, department operators, assignees, subtenants, permittees or others
directly or indirectly operating or conducting a business in or from the leased
premises, as fully as if any of the same were the named Tenant under the Lease.
D. The undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant, extended the
time of performance by Tenant, released, returned or misapplied other collateral
at any time given as security for Tenant's obligations (including other
guaranties) and/or released Tenant from the performance of its obligations under
the Lease or terminated the Lease.
E. This Guaranty shall remain in full force and effect notwithstanding the
institution by or against Tenant, of bankruptcy, reorganization, readjustment,
receivership or insolvency proceedings of any nature, or the disaffirmance of
the Lease in any such proceedings or otherwise.
F. If this Guaranty is signed by more than one party, or if more than one
Guaranty shall be given as security for the performance of Tenant's obligations
under the Lease, then the obligations of such parties and any other guarantors
shall be joint and several, and the release of one of such guarantors shall not
release any other of such guarantors.
E-3
G. This Guaranty shall be applicable to and binding upon the heirs,
executors, administrators, representatives, successors and assigns of Landlord,
Tenant and the undersigned. Landlord may, without notice, assign this Guaranty
in whole or in part.
H. In the event that Landlord should institute any suit against the
undersigned for violation of or to enforce any of the covenants or conditions of
this Guaranty or to enforce any right of Landlord hereunder, or should the
undersigned institute any suit against Landlord arising out of or in connection
with this Guaranty, or should either party institute a suit against the other
for a declaration of rights hereunder, or should either party intervene in any
suit in which the other is a party to enforce or protect the intervening party's
interest or rights hereunder, Landlord shall receive from the undersigned all
costs and expenses paid or incurred by Landlord in connection therewith,
including, without limitation, the fees of its attorney(s), to be determined by
the court and taxed as a part of the costs therein.
I. The undersigned hereby waives trial by jury in any action, proceeding or
counterclaim brought by any person or entity with respect to any matter
whatsoever arising out of or in any way connected with: this Guaranty; the
Lease; any liability or obligation of Tenant in any manner related to the leased
premises; any claim of injury or damage in any way related to the Lease or the
leased premises; any act or omission of Tenant, its agents, employees,
contractors, suppliers, servants, customers or licensees; or any aspect of the
use or occupancy of, or the conduct of business in, on or from the leased
premises. The undersigned shall not impose any counterclaim or counterclaims or
claims for set-off, recoupment or deduction of rent in any action brought by
Landlord against the undersigned under this Guaranty. The undersigned shall not
be entitled to make, and hereby waives, any and all defenses against any claim
asserted by Landlord or in any suit or action instituted by Landlord to enforce
this Guaranty or the Lease. In addition, the undersigned hereby waives, both
with respect to the Lease and with respect to this Guaranty, any and all rights
which are waived by Tenant under the Lease, in the same manner as if all such
waivers were fully restated herein. The liability of the undersigned under this
Guaranty is primary and unconditional.
J. The undersigned shall not be subrogated, and hereby waives any and all
rights of subrogation (if any), to any of the rights of Landlord under the Lease
or otherwise, or to or in the leased premises thereunder, which may arise by
reason of any of the provisions of this Guaranty or by reason of the performance
by the undersigned of any of its obligations hereunder. The undersigned shall
look solely to Tenant for any recoupment of any payments made or costs or
expenses incurred by the undersigned pursuant to this Guaranty.
K. Any default or failure by the undersigned to perform any of its
obligations under this Guaranty shall be deemed to be an immediate default by
Tenant under the Lease.
L. The execution of this Guaranty prior to execution of the Lease shall not
invalidate this Guaranty or lessen the obligations of Guarantor(s) hereunder.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this day of
_____ 19
WITNESSES:
PLAY CO. TOYS & ENTERTAINMENT CORP., a Delaware corporation