10.89
Lease Agreement for Store-Arizona Mills
LEASE
TOYS INTERNATIONAL, A CALIFORNIA CORPORATION
TENANT
"TOY CO."
TRADE NAME
PLAY CO. TOYS AND ENTERTAINMENT CORPORATION, A DELAWARE CORPORATION
GUARANTOR
A R I Z O N A M I L L S
PROVISIONS ADDED TO THIS LEASE APPEAR ON THE DATA SHEET AND ON
THE ATTACHED RIDER AND, EXCEPT IN INSTANCES OF ADDITIONAL
SENTENCES OR PARAGRAPHS BEING ADDED AT THE END OF A SECTION OR
PARAGRAPH, ARE INDICATED IN THE TEXT BY AN UNDERSCORING OF THE
LINE NUMBER IN THE RIGHT-HAND MARGIN OF THE LINE BEING
CHANGED. ADDITIONAL LANGUAGE IS INSERTED EITHER IN PLACE OF
DELETED LANGUAGE OR AFTER AN UNDERSCORED WORD, EXCEPT AS
OTHERWISE NOTED ABOVE.
THIS LEASE dated as of this 15th day of September, 1997 by and between
ARIZONA MILLS L.L.C., a Delaware limited liability company, 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, 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: 689, consisting of approximately seven thousand
one hundred three (7,103) 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)
the date of the expiration of a thirty (30) day Fixturing
Period following the Delivery of Possession Date (as defined in
Section 3.2), or (ii) the date the Leased Premises are
initially open for business to the public.
Original Term: Five (5) years
Option Period: One (1) of five (5) years
(3) Section 2.1: Minimum Rent:
Original Term:
From the Commencement Date and continuing through the
expiration of the Original Term, the sum of One Hundred
Sixty-Three Thousand Three Hundred Sixty-Nine and 00/100ths
Dollars ($163,369.00) annually ($23.00 psf), payable in equal
consecutive monthly installments of Thirteen Thousand Six
Hundred Fourteen and 08/100ths Dollars ($13,614.08) each;
Option Period:
Beginning with the first (1st) year of the Option Period and
continuing through the expiration of the Option Period, the sum
of One Hundred Ninety-One Thousand Seven Hundred Eighty-One and
00/100ths Dollars ($191,781.00) annually ($27.00 psf), payable
in equal consecutive monthly installments of Fifteen Thousand
Nine Hundred Eighty-One and 75/100ths Dollars ($15,981.75)
each.
(4) Section 2.2: Percentage Rent:
Original Term:
From the Commencement Date and continuing through the
expiration of the Original Term, five percent (5%) (the
"Percentage Factor") of Gross Sales made during each year in
excess of Three Million Two Hundred Sixty-Seven Thousand Three
Hundred Eighty and 00/100ths Dollars ($3,267,380.00) ($460.00
psf) (the "Sales Break Point").
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Option Period:
Beginning with the first (1st) year of the Option Period and
continuing through the expiration of the Option Period, five
percent (5%) (the "Percentage Factor") of Gross Sales made
during each year in excess of Three Million Eight Hundred
Thirty-Five Thousand Six Hundred Twenty and 00/100ths Dollars
($3,835,620.00) ($540.00 psf) (the "Sales Break Point").
(5) Section 2.4: Security Deposit: None
(6) Section 3.2: Tenant Inducement: Fifty Thousand and 00/100ths
Dollars ($50,000.00)
(7) Section 4.1: Permitted Use:
Tenant shall use the Leased Premises for the use set forth
below and for no other purpose: for the sale, at discount, of
toys and toy-related merchandise. Apparel and books shall not
exceed fifteen percent (15%) of sales each.
Trade Name: Toy Co.
(8) Section 13.2: Fund Contribution: $2.00 per square foot of floor
area in the Leased Premises Grand Opening Fee (Initial Contribution): $2.00
per square foot of floor area in the Leased Premises
(9) Temporary Charges: $1.00 per square foot of floor area in the
Leased Premises
(10) Chargebacks: N/A
(11) Guarantor: Play Co. Toys and Entertainment Corporation
Address: 550 Rancheros Drive, San Marcos, CA 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 Arizona
Mills 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 Arizona. 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.
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(b) Landlord shall have the right, at any time prior to the Delivery of
Possession Date (as defined herein), by written notice to Tenant, to relocate
the Leased Premises in either direction (from side to side from the outside
boundary of the Leased Premises) by not more than forty feet (40'), and, upon
any such relocation, the size and description of the Leased Premises shall be
appropriately modified to reflect any resulting proportional adjustment in the
Rent (as defined herein) based upon the change in size of the Leased Premises.
After the Delivery of Possession Date, Landlord reserves the right to relocate
Tenant (i) 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 (90) 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 hereto, 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 December 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 January 1 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",
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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. Said statement upon execution and delivery
shall be deemed to be part of this Lease.
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 November 20, 1997, 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.
Section 1.4 Late Opening. In the 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 this 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.
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.
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(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 forty-five (45) days after the close of each
Lease Year, Tenant shall furnish to Landlord a statement certified by an
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, at 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 00/100ths 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 (1st) full twelve (12) 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) The parties hereto understand and agree that the Percentage Factor
specified in subparagraph (a) above for the purpose of computing Percentage Rent
has been determined based on Tenant's representation that it will sell
substantially all merchandise from the Leased Premises at discount prices,
namely prices that are at least thirty percent (30%) less than the prices
charged by a majority of other retailers in the metropolitan area in which the
Shopping Center is located who sell the same or substantially similar
merchandise at full retail markup. Tenant hereby acknowledges that Tenant has
represented to Landlord that it will operate its business in the Leased Premises
as one of the following: (i) a factory direct outlet; or (ii) a discounter; or
(iii) an off-price operation, selling all its merchandise at discount prices (as
herein defined), and that such representation was a material inducement for
Landlord to enter into this Lease with Tenant on the rental terms herein
contained, which rental provisions are predicated on the typically lower profit
margins of such businesses, as compared to those selling at full retail markup.
Within forty-five (45) days after the end of each Lease Year Tenant shall
provide (together with the annual Gross Sales statement) reasonable information
that Tenant has sold substantially all its merchandise at discount prices on a
continuous basis. Landlord may, at its option, at any time and from time to
time, obtain an independent study and review of the prices charged by Tenant and
the prices charged by the majority of retailers in the metropolitan area in
which the Shopping Center is located who sell the same or substantially similar
merchandise as that sold in the Leased Premises (herein "Study"). If a Study
reveals that Tenant is failing or failed to sell its merchandise at discount
prices on a continuous basis, Tenant shall pay Landlord's costs and expenses
incurred for such Study.
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.
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Section 2.4. Security Deposit. The amount set forth in the Data Sheet as a
security deposit is payable by Tenant to Landlord upon Tenant's execution of
this Lease, which sum shall be held by Landlord as security against any default
by Tenant in the performance of the covenants, conditions and agreements of this
Lease. The deposit may, at Landlord's option, be applied by Landlord against any
default in any of the terms, provisions, or conditions of this Lease. Landlord
shall not be obligated to keep such security deposit in a separate fund, but may
commingle the security with its own funds. A mortgagee-in-possession of the
Leased Premises, or any interest therein, through public or private foreclosure
or the acceptance of a deed in lieu thereof, shall have no liability to Tenant
for the return of all or any portion of the deposit, unless, and then only to
the extent that, such mortgagee has acknowledged receipt of all or any portion
of Tenant's deposit. In the event Landlord applies the deposit in whole or in
part against a default by Tenant, Tenant shall, upon demand by Landlord, deposit
sufficient funds to maintain the security deposit in the initial amount. The
failure of Tenant to maintain the security deposit in the initial amount as
stated shall constitute a failure to pay Rent and shall carry with it the
consequences set forth under Article XIV hereof. Upon the expiration of the term
hereof, the security deposit, if not applied toward the payment of Rent in
arrears or toward the payment of damages suffered by Landlord by reason of
Tenant's breach of this Lease, is to be returned to Tenant, without interest,
except as provided by law, but in no event is such security deposit to be
returned until Tenant has vacated the Leased Premises, delivered possession
thereof to Landlord, and fully satisfied Tenant's obligations under this Lease.
Notwithstanding the acceptance by Landlord of Tenant's security deposit, this
Lease shall not be deemed effective until the Effective Date (as defined in
Section 20.19).
Section 2.5. Late Charge. In the event any Rent or sums required
hereunder to be paid are not received on or before the fifth (5th) 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), or (b) 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.
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.
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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.
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
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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
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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 (s) 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.
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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 business. 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 "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.
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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 the
outside boundary of the Retail Development. This Section 4.8 shall not apply to
any competing business which 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
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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.
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.
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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.
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(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.
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.
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Section 7.3. Sales and Rent Tax. Tenant, and not Landlord, shall pay,
when due and payable, any state, county or city sales tax, transaction privilege
tax, and any other sales, excise, use, rental or occupancy tax now or hereafter
levied or assessed upon or payable by virtue of the Minimum Rent, the Rent, or
any item of additional rent reserved hereunder or any other payment made or
other consideration given by Tenant under this Lease and classified as rental by
taxing authority. Should the appropriate taxing authority require that any such
tax be collected by Landlord for or on behalf of such taxing authority, or
should such tax be imposed on Landlord, then such tax shall be paid by Tenant to
Landlord, monthly, as additional rent, together with the payment of Minimum Rent
or, at the option of Landlord, in accordance with the terms of any notice from
Landlord to Tenant to such effect.
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 Tenant). 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
40
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. In
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, employees,
and 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.
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.
41
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. The party required hereunder to
repair the damage to the Leased Premises shall reconstruct such Leased Premises
in accordance with the working drawings originally approved by Landlord or with
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(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 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 (180) 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 (180) days or
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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 XI
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 XI. Notwithstanding the
provisions of this Article XI 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
on the New York Stock Exchange or the American Stock Exchange) 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.
(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 00/100ths 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 XI, 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.
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(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 12.1 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
45
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 12.5. 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 as attorney-in-fact for Tenant, to execute and deliver
such certificate, statement, instrument or financing statement.
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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. Within ten (10) days before
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 20.12 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.
Section 13.3. Advertisements. Not more than four (4) times each Lease
Year, Landlord may require Tenant, at Tenant's cost, to either (i) place a
one-quarter (1/4) page tabloid advertisement, or (ii) contribute funds to cover
the cost and expense of an advertisement prepared by Landlord in an advertising
mailer, newspaper insert or other media ad coordinated by Landlord. In the event
that Tenant fails to submit its proposed advertisement within thirty (30) days
after Landlord's request, then Landlord shall have the right to include Tenant
in the advertising promotion and to charge Tenant for the advertisement. Such
charge shall be payable by Tenant within ten (10) days after written notice by
Landlord.
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
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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 Tenant shall be
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given three (3) notices of default under subparagraphs (b) or (c) within any
period of eighteen (18) months, notwithstanding any subsequent cure of the
failure to perform or observe the terms or conditions of the Lease as identified
in such notices; (e) 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 default 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".
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 or 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) Sell at public or private sale all or any part of the goods,
chattels, fixtures and other personal property belonging to Tenant which are or
may be put into the Leased Premises during the Term, whether exempt or not from
sale under execution or attachment (it being agreed that said property shall be
at all times bound with a lien in favor of Landlord and shall be chargeable for
all Rent and for the fulfillment of the other covenants and agreements herein
contained) and apply the proceeds of such a sale, first, to the payment of all
costs and expenses of conducting the sale or caring for or storing said
property; second, toward the payment of any indebtedness, including (without
limitation) indebtedness for Rent which may be or may become due from Tenant to
Landlord; and third, to pay to Tenant, on demand in writing, any surplus
remaining after all indebtedness of Tenant to Landlord has been fully paid. In
addition to any statutory lien for Rent held by Landlord, Landlord shall have,
and Tenant hereby grants to Landlord, a continuing security interest for all
Rent and other sums of money becoming due hereunder from Tenant, upon all of the
property now or hereafter owned by Tenant and now or hereafter located on the
Leased Premises. In connection herewith, Landlord shall have, in addition to any
other remedies, any and all of the remedies afforded to secured parties under
the provisions of the Uniform Commercial Code, as codified in the State
(including, by way of example, rather than of limitation), the right to sell
such property at public or private sale upon ten (10) days' notice to Tenant
without resort to judicial process. Tenant shall, on its receipt of a written
request therefor from Landlord, execute such financing statements and other
instruments as are necessary or desirable, in Landlord's judgment, to perfect
such security interest.
(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, together 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.
(e) 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 equalling 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 of 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.
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(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 becomes 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.
(l) 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 seq.), 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 event 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 20.13 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.
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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.
ARTICLE XVI
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.
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
51
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 if it 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.
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 apportioned 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.
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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.
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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.
57
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 only 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 through XXXIV, Addendum (if any), 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:
ARIZONA MILLS L.L.C.,
a Delaware limited liability company
By:
- -------------------------------------------------------
The Mills corporation,
a Delaware corporation
By:
Name: Judith Berson
Its: Executive Vice President
LANDLORD
TOYS INTERNATIONAL,
a California corporation
By:
- -------------------------------------------------------
Name:
- -----------------------------------------
Richard Brady
Title: President
TENANT
Tenant's Federal Tax Identification Number:
- -----------
- -----------------------------------------------
Tenant's corporate seal:
- ----------------------------------
ACKNOWLEDGMENT OF LANDLORD
STATE OF _____________ )
) ss.
COUNTY OF ___________ )
On this day of , 19 , before me personally appeared ------------
- ---------------------------------- ----- 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
____________________________________________.
Notary Public, ___________ County, ___________
My Commission expires:
, 19
ACKNOWLEDGMENT OF CORPORATE TENANT
STATE OF )
) ss.
COUNTY OF )
On this day of , 19 , before me personally appeared ----------
- ------------------------------------ ----- and , to me personally known, who,
being by me duly sworn, did each for himself say that he is, respectively, the
and of , the corporation named in and which executed the within instrument, and
that the seal affixed to said instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed in behalf of said
corporation by authority of its board of directors; and said and acknowledged
before me said instrument to be the free act and deed of said corporation.
Notary Public,County,
My Commission expires:
RIDER ATTACHED TO AND MADE A PART OF LEASE DATED __________________,
19____, ENTERED INTO BY AND BETWEEN ARIZONA MILLS L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY, AS LANDLORD, AND TOYS INTERNATIONAL, 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 1.2: At the end of the Section, insert "Provided Tenant is not in
default hereof, Tenant shall have the option to extend the Term for one (1)
additional consecutive period of five (5) Lease Years. Such option shall be
exercised, if at all, by written notice to Landlord at least one hundred eighty
(180) days prior to the expiration of the original term hereof. All terms and
conditions contained in this Lease shall apply during such option period, except
the annual Minimum Rent and Percentage Rent shall be as provided in Section 2
hereof. In the event Tenant does not exercise the foregoing option to renew 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.
If Tenant's Gross Sales during the twelve (12) month period ending
approximately one (1) year prior to the expiration of the original term hereof
do not equal or exceed Two Hundred Eighty-Five and 00/100ths Dollars ($285.00)
per square foot of floor area in the Premises, then, at Landlord's sole
election, any notice of exercise by Tenant of its option to extend the term
hereof may, at Landlord's election and upon notice from Landlord to Tenant, be
deemed to be null and void and of no force or effect. Tenant shall furnish to
Landlord, concurrently with its notice of exercise of the option, a statement
certified by the chief financial officer of Tenant setting forth the amount of
Tenant's Gross Sales for the aforesaid twelve (12) month period.
In the event Tenant does not achieve Gross Sales (as herein defined) of
at least Two Hundred Eighty-Five and 00/100ths Dollars ($285.00) per square foot
during the third (3rd) full Lease Year of the Term hereof, then Tenant shall,
for a period of thirty (30) days after the close of such third (3rd) full Lease
Year, 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 third (3rd) full Lease Year.
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 1.4: 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"
56
Section 2.2(d): On page 4, line 25, in place of the first deletion, insert
"at least fifty percent (50%)" --------------
On page 4, line 25, in place of the second deletion, insert "twenty percent
(20%)"
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 Fifty Thousand and 00/100ths Dollars ($50,000.00), 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, plus interest on such unamortized portion at a rate equal to
three (3) percentage points above the prime rate then charged by a plurality of
FDIC member banks headquartered in the State,
which interest shall accrue from the date of payment of the Tenant inducement to
Tenant through the date of termination of the Lease. 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 Section, 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 Eight and
95/100ths Dollars ($8.95) 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 during the original term beginning with the
third (3rd) full Lease Year shall in no event increase by more than seven
percent (7%) 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: On page 14, lines 49, 52,53, 54 and 55, after the word
"Landlord's", insert "Reconstruction"
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 14, 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 18, line 16, in place of the deletion, insert "Upon"
On page 18, line 17, in place of the deletion, insert "Fourteen Thousand
Two Hundred Six and 00/100ths Dollars ($14,206.00)"
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)"
Exhibit C: On page C-2, line 27, insert "Notwithstanding the foregoing, the
Leased Premises shall have one (1) closure of fifteen foot (15') width."
Exhibit E: On page E-1, line 23, in place of the deletion, insert "thirty
(30)"
In the Presence of: ARIZONA MILLS L.L.C.,
a Delaware limited liability company
By: The Mills Limited Partnership,
a Delaware limited partnership
By: The Mills Corporation,
a Delaware corporation
By:
Name: Judith Berson
Its:Executive Vice President
LANDLORD
TOYS INTERNATIONAL,
a California corporation
By:
Name: Richard Brady
Title:
TENANT
GUARANTY
Annexed to and forming a part of Lease dated , by and between ARIZONA MILLS,
L.L.C., Landlord, and TOYS INTERNATIONAL, Tenant.
The undersigned, PLAY CO. TOYS AND ENTERTAINMENT CORPORATION, a
Delaware corporation (hereinafter sometimes referred to as the "Guarantor" or
"Guarantor(s)"), whose address is 550 Rancheros Drive, San Marcos, CA 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 non-performance 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.
Notwithstanding anything herein to the contrary, Landlord shall not commence
judicial action against the undersigned without first giving the undersigned ten
(10) days written notice and opportunity to perform this Guaranty.
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.
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 AND ENTERTAINMENT
CORPORATION, a Delaware corporation
CORPORATE ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF )
On this day of , 19 , before me personally appeared and , to me personally
known, who, being by me duly sworn, did each for himself say that they are
respectively the and of Play Co. Toys and Entertainment Corporation, the
corporation named in and which executed the within instrument, and that the seal
affixed to said instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed on behalf of said corporation by authority
of its board of directors; and said and acknowledged before me said instrument
to be the free act and deed of said corporation.
Notary Public, County,
My commission expires: