CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH BRACKETS. Master Lease Agreement
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Wal-Mart
Stores East, LP, individually
and only as to Stores (as defined in Section 1.1K of this Master Lease) owned,
leased, or operated in AL, CT, DC, DE, FL, GA, IN, KY, ME, MD, MA, MI, MS,
MO,
NH, NJ, NM, NY, NC, OH, OK, PA, RI, SC, TN, VT, VA, WI, WV; Wal-Mart Stores,
Inc., individually and only as to Stores owned or leased in AK, AR,
AZ, CA, CO, HI, ID, IL, IA, KS, MN, MT, NE, NV, ND, OR, SD, UT, WA, WY; Wal-Mart
Louisiana, LLC, individually and only as to Stores owned or leased in
Louisiana; and Wal-Mart Stores Texas, LP, individually and only as to
Stores owned or leased in Texas (each referred to as “Landlord” for purposes of
this Master Lease Agreement as it applies to the Store) and Portrait Corporation
of America, Inc. (“Tenant”) enter into this Master Lease Agreement effective the
8th day of
June
2007.
WHEREAS,
Landlord operates discount
retail stores nationwide;
WHEREAS,
Tenant operates business(es)
offering photography products and services (described more fully in Appendix-1)
and desires to lease space within one or more Stores from which to operate
such
business(es); and
WHEREAS,
Landlord desires to lease
space in one or more of its Stores to Tenant, so Tenant may operate such
business(es) in the Store.
NOW,
THEREFORE, in consideration of the
mutual promises and premises set forth above and below, the receipt and
sufficiency of which the parties hereby acknowledge, the parties hereby agree
as
follows:
Article
I
General
Provisions
|
Definitions.
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A. “Attachment
A” means an
attachment to this Master Lease Agreement, incorporated into this Master Lease
Agreement when fully signed by Tenant and by the particular Landlord with
authority to lease the property identified in the applicable Attachment A,
that
identifies the Store in which the Leased Premises is located; the anticipated
Delivery Window, as defined in Section 1.1F, below; the anticipated Delivery
Date, as defined in Section 1.1E, below; the anticipated Rent Commencement
Date,
as defined in Section 4.1, below; and the Extension, as described in the
applicable Attachment A.
B. “Appendix-1”
means an appendix to this Master Lease Agreement, incorporated into this Master
Lease Agreement when fully signed by Tenant and Landlord, which provides
obligations of Landlord and Tenant specific to Tenant’s Permitted Uses (as
designated in Appendix-1) contemplated by Landlord and Tenant at the time this
Master Lease Agreement was entered into.
C. “Commencement
Notice” means an attachment to this Master Lease Agreement, incorporated into
this Master Lease Agreement at the time of delivery by Landlord of the
Commencement Notice to Tenant in accordance with Section 19.10, below, which
identifies the actual Rent Commencement Date and the actual Delivery Date,
as
each term is defined below.
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CONFIDENTIAL
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CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
driveways,
sidewalks, entrances, and exits in the Store and between the Store and the
Leased Premises.
E. “Delivery
Date” means the date on which Landlord delivers possession of the applicable
Leased Premises to Tenant.
F. “Delivery
Window” means the span of time in which Landlord may deliver possession of the
Leased Premises to Tenant.
G. “Due
Date” means the first (1st) calendar
day of
each month, unless this day falls on New Year’s Day, Memorial Day, Independence
Day (US), Labor Day, Thanksgiving, or Christmas, in which case the Due Date
means the following business day.
H. “Leased
Premises” means the area of a Store leased to the Tenant by Landlord subject to
the terms and conditions of this Agreement.
I. “Master
Lease” means this Master Lease Agreement and any amendment, appendix,
attachment, and exhibit attached to and incorporated into this Master Lease
Agreement.
J. “Rent”
means the Base Rent defined in Section 4.2, below, and described in the
applicable Attachment A, plus any additional or other rent, interest, tax,
or
other sum this Master Lease obligates Tenant to pay Landlord.
K. “Store”
or “Stores” means the “Wal-Mart” retail store operated by Landlord.
L. “Sublessee”
means the franchisee, licensee, concessionaire, or other party, of Tenant which,
pursuant to a separate agreement between it and Tenant, is operating the Leased
Premises as part of a marketing plan or system prescribed by Tenant that is
substantially associated with Tenant’s trademark, service ▇▇▇▇, trade name,
logotype, advertising, or other commercial symbol designated by Tenant and
is
subject to the terms and conditions of this Master Lease.
M. “White
Box” means the interior condition of the Leased Premises with sprinklers,
sheetrock walls, ceiling grid, HVAC installed, 100 amp service to the Leased
Premises, security gate, acoustic ceiling tile, lighting and electrical outlets,
and access to water and sewer.
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1.2
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Landlord’s
Entry into the Agreement.
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A. Each
Landlord enters into this Master Lease severally and solely as to the Store
it
operates and in which the Leased Premises is located and without any obligation
with respect to any other Store. Accordingly, only the respective
Landlord that operates the Store in which such Leased Premises is located may
execute, for a Leased Premises, an Attachment A.
B. If,
during the term of this Master Lease, it is determined that the use of the
Leased Premises is Restricted, as defined in the following sentence, Landlord
may remove/cancel the applicable Attachment A from the Master Lease and the
applicable Attachment A will be null and void without further action by Landlord
or Tenant. Neither Landlord nor Tenant will be liable to the other
for any damages, loss, or liability in connection with the cancellation of
this
Master Lease as to the affected Leased Premises. For the purpose of
this paragraph, “Restriction” means any covenant, condition, law, regulation,
restriction, rule, or other matter binding to the Leased Premises, Landlord,
or
Tenant or any combination thereof, which acts to prohibit or materially restrict
the use of the Leased Premises from any of the matters contemplated by this
Master Lease
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
including,
without limitation, that ability of Landlord to lease to Tenant or Tenant’s
ability to operate its type of business in the Leased Premises. By
way of example, and not of limitation, if Landlord is required to obtain the
consent of a third party prior to leasing space to the Tenant in a particular
Store, the requirement of consent is a Restriction.
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1.3
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Landlord’s
▇▇▇▇▇▇▇▇▇. If Landlord is itself a lessee of a Store in
which a Leased Premises is located, so that this Master Lease as
to the
particular Leased Premises is actually a sublease, Tenant accepts
this
Master Lease subject to all the terms and conditions of the ▇▇▇▇▇▇▇▇▇
under which Landlord holds the Leased Premises as
lessee. Tenant covenants that it will do no act or thing that
would constitute a violation of the
▇▇▇▇▇▇▇▇▇.
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1.4
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Granting
Language. Upon the full execution of the
applicable Attachment A, Landlord leases to Tenant and Tenant rents
from
Landlord (subject and subordinate to any mortgage, deed or trust,
or other
lien presently existing or hereafter placed upon the applicable Leased
Premises, the Common Areas, the Store, or any combination thereof)
the
Leased Premises identified in the applicable Attachment A to have
and to
hold subject to the terms of this Agreement, by which the parties
intend
to be legally bound as to the applicable Leased Premises upon the
execution by each appropriate party of both this Master Lease and
the
applicable Attachment
A.
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Construction
and Acceptance of the Leased Premises
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Landlord’s
Obligation to Deliver Possession on the Delivery
Date.
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(2) Landlord,
at any time prior to notifying Tenant of the anticipated Delivery Date,
[***].
(3) Landlord
may revise the anticipated Delivery Date at any time after Landlord notifies
Tenant of the anticipated Delivery Date, in accordance with this Article II,
but
in no event may Landlord revise the anticipated Delivery Date with
[***].
B. [***]. If
Landlord and Tenant agree that delivery of possession is unfeasible within
a
commercially reasonable amount of time after the Delivery Window specified
on
the applicable Attachment A, the parties, without liability, may terminate
this
Master Lease as to the applicable Leased Premises.
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Tenant’s
Right of Entry.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
A. Prior
to the Delivery Date, Tenant may enter the Leased Premises only to inspect
and
measure the Leased Premises to ready the Leased Premises for opening on the
Rent
Commencement Date, as described in Section 4.1, below, and as designated in
the
applicable Attachment A.
B. Tenant
may enter the Leased Premises in accordance with the preceding paragraph only
if:
(1) Landlord
and Tenant have previously signed an Attachment A for the Leased
Premises,
(2) Tenant
does not interfere with Landlord’s performance of its obligations under Section
2.1, above, or with the transaction of Landlord’s business or the business of
any of Landlord’s other Tenants, and
(3) The
Leased Premises is not currently in the possession of another
tenant.
C. If
any work or other action done by, or on behalf of, Tenant results in a stoppage
of Landlord’s work, Tenant will immediately stop work until the parties mutually
agree Tenant’s work can re-commence without materially interfering with
Landlord’s obligations under Section 2.1, above, which time may not be any later
than the Delivery Date. Any failure by Tenant to comply with the
provisions of this Section 2.2C is a material breach.
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2.3
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Acceptance
of the Leased Premises.
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A.
Landlord makes no representations, covenants, or warranties of any kind or
character whatsoever, express or implied, with respect to:
(1) The
quality, condition, or [***] of the applicable Leased Premises;
(2) [***;]
(3) [***;]
(4) The
habitability, merchantability, or fitness for a particular purpose of the
applicable Leased Premises;
(5) [***];
or
(6) [***.]
B. Tenant
shall accept possession of the applicable Leased Premises when delivered by
Landlord, even if Landlord is unable to deliver possession [***] or on the
anticipated Delivery Date, unless this Master Lease as to the applicable Leased
Premises has been terminated according to Section 2.1 B,
above.
C. TENANT
WAIVES ALL RIGHTS WITH RESPECT TO ANY DEFECT IN THE LEASED PREMISES, AND IF
TENANT FAILS TO NOTIFY LANDLORD OF ANY DEFECT AT LEAST [***], TENANT
CONCLUSIVELY ACCEPTS THE LEASED PREMISES “AS IS” AND WITH ALL
FAULTS.
D. TENANT
WAIVES ALL RIGHTS AGAINST LANDLORD WITH RESPECT TO ANY LIMITATION OR RESTRICTION
ON ITS USE OF THE LEASED PREMISES AS A RESULT OF
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
ANY
APPLICABLE LAW, RULE, OR REGULATION INCLUDING, WITHOUT LIMITATION, LAND USE
RESTRICTIONS.
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Tenant’s
Obligations to Prepare the Leased Premises to Open for
Business.
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A. Tenant
shall open the Leased Premises on the Rent Commencement Date (as defined in
Section 4.1, below, and designated on the applicable Attachment
A). If Tenant fails to open the applicable Leased Premises on the
Rent Commencement Date and the failure is not caused by Landlord’s material
interference or default under this Master Lease, Landlord may charge Tenant
liquidated damages of [***] and additional liquidated damages of [***] a day
for
each day, including the Rent Commencement Date, which the Leased Premises
remains unopened as required by the preceding sentence. By way of example,
and
not as a limitation thereof, material interference may occur if Landlord fails
to deliver possession to Tenant of the applicable Leased Premises with
sufficient time before the Rent Commencement Date for Tenant to fulfill its
obligations under this Article II. Tenant will pay any
liquidated damages it owes to Landlord within thirty (30) days after Tenant
receives an invoice from Landlord for the liquidated
damages. Landlord and Tenant acknowledge that it would be
impracticable to fix the actual damages suffered by Landlord as a result of
Tenant’s failure to open the Leased Premises on the Rent Commencement Date,
according to this paragraph, and that the amount of liquidated damages described
in the preceding sentence represents fair and reasonable compensation to
Landlord for this failure. If the Leased Premises remains unopened
for more than three (3) consecutive days following the Rent Commencement Date,
Tenant will materially breach this Master Lease.
B. Tenant
shall complete all Improvements within the Leased Premises in order to open
the
Leased Premises on the applicable Rent Commencement Date. For the
purposes of this Master Lease, “Improvements” means any addition, alteration,
construction, finish, or improvement to the Leased Premises; any attachment
of a
permanent fixture, permanent furniture, or permanent equipment; and includes,
but is not limited to, completing the interior walls, partitioning(s), floor
covering, ceiling work, utilities, painting, finish work, restroom facilities,
signage (pursuant to Section 2.6, below), and any other thing
necessary.
C. Tenant
shall submit to Landlord and obtain Landlord’s approval of the floor plans and
layouts of the Leased Premises including dimensions, elevations, Improvements,
intended colors, and Trade Fixtures (as defined in Section 2.4D(1),
below). Tenant shall obtain Landlord’s approval of the floor plans
and layouts of the Leased Premises prior to seeking and obtaining any permits,
licenses, certifications, or other documents necessary to complete the
Improvements in the Leased Premises and install Trade Fixtures in the Leased
Premises in accordance with this Agreement. All Trade Fixtures and
Improvements must accord with the plans and specifications previously approved
by Landlord and must be of high quality materials and workmanship, comparable
to
or better than the tenant storefront, Improvements, and Trade Fixtures used
by
other retailers in the vicinity of the Store and, specifically, used at Tenant’s
most recent prototype. Tenant may not vary from or add to the previously
approved plans or specifications without Landlord’s prior, written consent,
which Landlord may not unreasonably withhold or delay. Landlord’s
approval of Tenant’s plans and specifications is solely based on Landlord’s
review. Landlord's approval of the plans and specifications does not
represent government approval or suitability of the plans and specifications
for
the intended purposes.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
(1) Prior
to any roof penetrations caused by Tenant’s Improvements, Tenant shall obtain
from Landlord’s Leasing Operations Department the contact information for the
contractor approved to work on Landlord’s roof.
(2) If
Tenant’s roof-top heating, ventilating, and air conditioning unit, or other
rooftop equipment, requires steel supports in addition to the steel framing
erected by Landlord, then Tenant will pay the cost of labor and materials for
the installation thereof. Mechanical equipment on the roof will be
placed within the area designated on Landlord’s structural
drawings. Tenant’s plans and specifications of the proposed
mechanical equipment must be submitted to Landlord for approval.
(3) Tenant
will provide screening or other type of cover for such mechanical equipment
to
prevent visibility by the public and subject to approval of landlord and the
local governmental authorities. If Landlord or any governmental
authorities requires a project standard equipment screen, Tenant will use and
pay for same.
D. Tenant
shall:
(1) Install
any attached or unattached, moveable or non-moveable fixtures, furniture, or
equipment unique to Tenant’s business, the installation and removal of which
requires no cutting, drilling, or other defacing of the Leased Premises (“Trade
Fixtures”).
(2) Conduct
the Improvements and install the Trade Fixtures in a good and workmanlike manner
in accordance with all applicable laws and in accordance with obligations and
requirements of this Master Lease including, but not limited to, insurance,
licensing, and regulatory compliance requirements.
(3) For
existing locations, erect a dust wall of plywood or sheetrock, but not plastic
or canvas, across the entrance to the Store from the Leased Premises prior
to
commencing Improvements and maintain the same in place throughout
construction.
(4) Conduct
Improvements and install Trade Fixtures without interfering with other
construction in progress at the Store or with the transaction of Landlord’s
business or the business of any of Landlord’s other lessees.
E. If
Landlord requests, Tenant will secure a bond or other security satisfactory
to
Landlord against any loss, liability, or damage to persons or property related
to the Improvements.
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2.5
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Tenant’s
Contractors. Tenant’s contractors must be licensed, carry
worker’s compensation coverage as required by law, and comply with all
applicable laws including, but not limited to, obtaining any required
permit, license, or other documentation necessary to perform the
construction work in connection with this Master Lease. At
Landlord’s request, Tenant will provide Landlord with a list of all
contractors and subcontractors Tenant is
using.
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Signs.
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A. Tenant
may not install on the exterior of the Store any sign, light, decoration,
painting, awning, canopy, or any other like item, (“Signs”) unless otherwise
provided in Appendix-1.
B. Tenant
may, with the prior, written consent of Landlord and in accordance with Section
2.6C, install a Sign on the exterior bulkhead of the applicable Leased Premises,
which is inside the
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Store
in which a Leased Premises is located, with Tenant’s trade name identified in
Appendix-1 to this Master Lease and Tenant’s logo.
C. Tenant
may not install any Sign containing images or words that may offend the
ordinary, reasonable person including, but not limited to, words or images
that
are cloaked in other words or images, phrases with double meanings, and words
or
images commonly considered to be vulgar, swear, or curse words. If
Tenant’s business or trade name violates this provision, Tenant may not use the
name in any signage in or around the Leased Premises.
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2.7
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Landlord’s
Right of Re-Entry. After the Delivery Date and before the
Rent Commencement Date designated on the applicable Attachment A,
Landlord
may re-enter the applicable Leased Premises to continue any portion
of
Landlord’s work not yet complete. During this period of
re-entry, Landlord may not unreasonably interfere with any work required
under Section 2.4 being performed by Tenant or on behalf of
Tenant.
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2.8
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Certificate
of Occupancy. Tenant shall fax a copy of the Certificate of
Occupancy within two (2) calendar days after receiving it to Landlord’s
Project Management at
[***].
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Article
III
Binding
Effect of the Attachment A, Commencement Notice
Master
Lease Term and Extension
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3.1
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Effective
Date of Master Lease. This Master Lease is effective and
binds Landlord and Tenant as of the Effective Date entered
above. This Master Lease terminates in its entirety upon the
termination, for whatever reason, of every Attachment A signed by
Landlord
and Tenant that attaches to this Master Lease and which is incorporated
into this Master Lease.
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3.2
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Binding
Effect of the Attachment A. This Master Lease governs each
Leased Premises for which Landlord and Tenant execute an Attachment
A. Once signed by both Landlord and Tenant, each Attachment A
attaches to and incorporates into this Master Lease binding both
Landlord
and Tenant to the terms and conditions in both this Master Lease
and the
applicable Attachment A as to the applicable Leased
Premises.
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3.3
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Commencement
Notice. Landlord will deliver the Commencement Notice to
Tenant, no sooner than [***] days following the actual Rent Commencement
Date of the applicable Leased Premises. The Commencement Notice
is for informational purposes only and does not modify the terms
of this
Master Lease. If Tenant does not receive the Commencement
Notice within that time, Tenant will notify Landlord, in writing
or
verbally. Any delay in delivery of the Commencement Notice is
not a breach of this Master Lease.
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Lease
Term of a Specific Leased Premise. The Lease Term for each
Leased Premises commences on the day on which the applicable Landlord
and
Tenant each sign the Attachment A for that Leased Premises and continues
until the Expiration Date. For the purpose of this Master
Lease, “Expiration Date” means 11:59 pm (local time as to the applicable
Leased Premises) on the last day of the month in which the anniversary
date of the Rent Commencement Date, designated in the applicable
Attachment A, falls. If the anniversary date falls between July
1st
and
December 31st
of a given
year, and then the Expiration Date extends to 11:59 pm (local time
as to
the applicable Leased Premises) on January 31st
of the
following year. In case of cancellation or termination, the
Expiration Date becomes the date on which the lease is cancelled
or
terminated.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
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3.5
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Extension
of the Lease Term. The Lease Term for the applicable Leased
Premises may extend, subject to the terms and conditions of this
Master
Lease, as designated in the applicable Attachment A. In the
event that the Lease Term of the applicable Leased Premises extends,
any
reference to the term “Lease Term” includes the period by which the Lease
Term extends.
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Article
IV
Rent,
Security, Tax Increases
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Rent
Commencement Date. Tenant’s obligation under this Master
Lease to pay Rent, in lawful money of the United States and without,
for
any reason, deduction or offset, begins on the Rent Commencement
Date. For the purposes of this Master Lease, the Rent
Commencement Date is either:
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A. The
first day on which the Store opens for business to the public (“Grand Opening”),
as memorialized in the applicable Commencement Notice, if the Leased Premises
is
located in a new, relocated, or expanded Store; or
B. The
day specified in the applicable Attachment A, if the Leased Premises is located
in a Store currently in operation that has not or will not be relocated or
expanded between the time that the Attachment A is executed and the Rent
Commencement Date.
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Base
Rent.
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A. Tenant
shall pay Base Rent to Landlord for each Leased Premises for which Landlord
and
Tenant execute an Attachment A at the rate set forth in the applicable
Attachment A and any additional or other sum, rent, interest, or tax required
by
this Master Lease.
B. Tenant,
without offset, notice, or demand, shall pay Base Rent in equal monthly
installments with each monthly installment due by the Due Date. If
the Rent Commencement Date occurs after the first day of the month, the Base
Rent for that month equals one-thirtieth (1/30th) of the
normal
monthly rent installment for each day starting on the Rent Commencement Date
and
continuing through midnight on the last day of that month.
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4.3
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Interest
on Late Payments.
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A. Tenant
shall pay to Landlord interest on any balance of Rent unpaid more than [***]
days following the Due Date at the prorated rate, based on a 30-day month,
of
the lesser of:
(1) [***]
per month, or
(2) The
maximum amount allowed by law.
B. Any
interest due under this provision is additional rent, and Tenant shall pay
it in
full no later than the day on which it pays the unpaid balance of Rent unless
demanded earlier by Landlord. Interest will not accrue on any unpaid
balance of Rent if the:
(1) Unpaid
balance is due to an error or problem with the automatic debit, if Tenant is
paying Rent through an automated clearing house account, and
(2) The
error or problem was not due to the intentional or negligent act of
Tenant.
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4.4
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Quarterly
Rent Payment. Landlord may require Tenant pay the Base Rent
on a quarterly basis rather than monthly if, for two (2) consecutive
months, Tenant fails to pay timely the Base
Rent
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CONFIDENTIAL
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CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
according
to Section 4.2. The quarter will commence on the first day of the
month following the month that Landlord notifies Tenant in writing of this
election.
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Method
for Rent Payment. Tenant shall pay Rent as required in the
applicable Attachment A.
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Surety
Bond.
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A. In
addition to any other obligation of Tenant under this Master Lease, Tenant,
for
each Leased Premises, shall execute and deliver a surety bond to Landlord in
lieu of a security deposit assuring Landlord that it will perform its
obligations herein for each Leased Premises under this Master
Lease.
B. Tenant
shall obtain a bond equal to the sum of three (3) months rent on the applicable
Leased Premises from a reputable company satisfactory to Landlord.
C. In
addition to any other right or remedy available at law, in equity, or under
this
Master Lease, Landlord may claim against the bond an amount equal to the Rent
owed to Landlord that Tenant failed to pay timely, such amount not to exceed
the
penal sum of the bond.
D. Any
claim or payment under the bond in no way relieves Tenant of its obligations
under this Master Lease to pay Rent or other charges in excess of the penal
sum
of the bond.
E. Tenant,
at the request of Landlord, will replace the bond when claims against the bond
equal or exceed the penal sum of the bond.
F. Each
bond must be in full force and effect within [***] days of Tenant signing the
applicable Attachment A and must continue for the Lease Term of the applicable
Leased Premises.
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Taxes.
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A. Landlord
shall pay all General Taxes levied, during each fiscal tax year, against the
Store, the Common Area, or both. “General Taxes” means all general
real estate taxes, general and special assessments, parking surcharges, and
other governmental charges.
B. In
addition to Tenant’s other obligation under this Master Lease, Tenant shall pay
any tax or assessment:
(1) Levied
against Tenant’s Improvements, inventory, personal property, and Trade
Fixtures;
(2) Assessed,
imposed, or levied against Landlord in relation to either Landlord’s interest in
this Master Lease or the Rent and or other charges required under this Master
Lease including, but not limited to, increases or additional, special, regular,
unforeseen, foreseen, extraordinary, or ordinary, taxes and assessments, whether
occurring wholly or partially during the Lease Term of the specific Leased
Premises from which the taxes or assessments arise;
(3) Imposed
against Landlord because of Landlord’s interest in this Master Lease as a
substitute, in whole or in part, for a real estate tax or
assessment.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
C. Tenant
shall reimburse Landlord, upon demand, for any tax, assessment, or excise that
was imposed, assessed, or levied against Landlord that Landlord paid but for
which Tenant is primarily liable under this Master Lease.
Article
V
Utilities
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Utilities. Unless
otherwise agreed to in this Master Lease, Landlord shall pay for
all
public utilities furnished to the Leased Premises and shall reasonably
cool, heat, and light and provide water and sanitary sewerage services
to
the building in which the Leased Premises is located. Landlord
is not liable for any interruption whatsoever to the public utilities,
the
lighting, the cooling, the heating, the water, or the sanitary sewerage
services if any of the preceding are
interrupted:
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A. Due
to equipment failure, fire, accident, strike, acts of God, or other causes
beyond the reasonable control of Landlord; or
B. In
connection with Store Renovations or to repair the Store or the Leased
Premises.
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Telephone
Service. Tenant shall pay for telephone service in the
Leased Premises. [***].
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Article
VI
Use
and
Operation
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6.1
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Use. Tenant
shall use the Leased Premises as designated in Paragraph 1 of Appendix-1,
Permitted Uses, subject to applicable legal requirements, and for
no other
purpose without the prior, written consent of
Landlord.
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6.2
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Continuous
Operation.
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A. Tenant,
other than as expressly permitted by this Master Lease and during the applicable
Lease Term, shall operate the applicable Leased Premises continuously during
the
Hours of Operation designated in Appendix-1 and in accordance with the Permitted
Uses designated Appendix-1 and with the terms and provisions of this Master
Lease.
B. Tenant,
other than as expressly permitted by this Master Lease shall not vacate the
applicable Leased Premises during the applicable Lease Term or cease operations
in the applicable Leased Premises and shall conduct its business, at a minimum,
in an efficient, first-rate, and reputable manner.
C. Other
than closing the Leased Premises to repair, update, and upgrade the Trade
Fixtures, the Improvements, and the Leased Premises in accordance with Section
7.3B, below, Tenant may close the applicable Leased Premises for repair or
renovation only with the prior, written consent of Landlord, which Landlord
may
not unreasonably withhold or delay.
D. Failure
to comply with this provision or any representation by Tenant that during the
applicable Lease Term the Tenant, or one of its Sublessees, will not comply
with
this provision or will vacate the applicable Leased Premises materially breaches
this Master Lease.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
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6.3
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Hours
of Operation. Tenant, other than as expressly permitted by
this Master Lease and during the applicable Lease Term, shall conduct
its
business in the Leased Premises as specified in Appendix-1 and, in
accordance with Section 2.6, above, shall post its Hours of Operation
in a
conspicuous location within the Leased
Premises.
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Trade
Name. During the term of this Master Lease, Tenant shall
conduct its business under the name designated as Tenant’s Trade Name in
Appendix-1 and under no other name without the prior, written consent
of
Landlord.
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A. Tenant
acknowledges that Landlord relied on Tenant’s business reputation and associated
trade name as a significant material inducement in Landlord’s decision to
execute this Master Lease, and therefore, Tenant hereby warrants that Tenant
has
the right to use the trade name and all logos, trade dress, slogans, and all
other identifying marks used by Tenant at the Leased Premises.
B. Failure
to comply with this Section 6.4 is a material breach of this Master
Lease.
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6.5
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Customer
Service.
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A. Tenant
shall operate the Leased Premises in conformity with Landlord’s reputation as
the operator of discount retail stores dedicated to customer satisfaction and
prompt quality customer service featuring a broad assortment of quality
merchandise at low, competitive prices.
B. Tenant,
at its sole cost and expense, shall post, in a conspicuous location that
customers can see when the Leased Premises is open and when the Leased Premises
is closed, a telephone number and an address for customers to
contact. The telephone number must be either toll free or a number
local to the applicable Leased Premises.
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6.6
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Window
Display Lights. Tenant shall keep, during the Hours of
Operation, any display windows in the Leased Premises neat and
attractive.
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6.7
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Mail
& Deliveries. Landlord does not guaranty any mail or
deliveries to the Leased Premises and recommends Tenant arrange to
receive
mail or deliveries at an alternate location. Any mail or
deliveries to and from the Leased Premises must be done only at such
times
and in the areas and through the entrances designated for such purpose
by
Landlord. Any mail or delivery left with the Store is done at
the Tenant’s sole risk. All property kept, stored, or
maintained on the Leased Premises by Tenant is at Tenant’s sole
risk.
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Tenant’s
Advertising, Promotion, and Media
Inquiries.
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A. Tenant
may use Landlord’s name only to the extent Landlord’s Leasing Operations
Department approves and only as a location reference.
B. Tenant
may not promote its services within the Store using Landlord’s in-store public
address system.
C. Tenant
may not post any Signs outside of the Leased Premises, except as provided in
Section 2.6B, above, or post any hand made signs inside or outside of the Leased
Premises.
D. Tenant’s
promotions related to the Leased Premises must be conducted in a professional
manner by trained individuals.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
E. Tenant
may not release or cause to be released any statement to the press or otherwise
containing Landlord’s name or representing any relationship whatsoever to
Landlord, without the prior, written approval of the Wal-Mart Leasing Operations
Department.
F. Tenant
agrees that it will not, within the Leased Premises or anywhere else in the
Store, advertise, market, or promote any Competing Business. For
purposes of this paragraph, “Competing Business” means any retail business,
owned or operated by either Tenant or a third party, involved in the sale,
outside of the Store, of any products or services sold from within the Store
or
by any affiliate, parent company, or subsidiary of Landlord.
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6.9
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Restrictive
Covenants. Tenant shall comply with and observe any
easement, covenant, or restriction that affects or applies to the
Leased
Premises and the Common Area.
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Restrictions
on Tenant’s Activities. In addition to any easement,
covenant, or restriction that affects or applies to the Leased Premises
or
the Common Area, Tenant, nor its Sublessees, shall
not:
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A. Use
the sidewalk adjacent to or any other space outside the Leased Premises for
display, sale, or any other similar undertaking.
B. Use
a loudspeaker system that may be heard from outside the Leased Premises; place
or permit any radio, television, loudspeaker, or amplifier on the roof, inside
the Leased Premises, or anywhere that the radio, television, loudspeaker, or
amplifier can be seen or heard from outside of the Leased Premises; or solicit
or distribute any handbills or other advertising in the parking lot, Store,
or
Common Areas, unless otherwise protected by law.
C. Use
the plumbing facilities of the Leased Premises or the Store for any purpose
other than that for which they were constructed. Neither Tenant or
its Sublessees, nor the invitees of either Tenant or its Sublessees, may use
the
plumbing facilities of the Leased Premises to dispose of any foreign
substances. The expense of any breakage, stoppage, or damage
resulting from a breach of this paragraph will be born by Tenant.
D. Place
on any floor a load that exceeds the load per square foot that the floor was
designed to carry. Tenant may only install, operate, and maintain
heavy equipment in the Leased Premises if installed in such manner as to achieve
a proper distribution of weight.
E. Use
any forklift truck, tow truck, or any other machine or equipment in the Store,
in the Common Areas, or on any of the underlying ground, unless necessary to
complete Tenant’s obligations under Section 2.4 or unless otherwise agreed to in
the Appendix-1.
F. Use
the Leased Premises to conduct illegal business or for illegal purposes or
for
any purpose that may increase the premium cost of or invalidate any insurance
policy carried on the Leased Premises, Common Areas, or the Store. If
insurance premiums for insurance policies carried on the Leased Premises, Common
Areas, or the Store increase in connection with Tenant’s use of the Leased
Premises, Tenant will reimburse Landlord for the increase.
G. Unreasonably
interfere with Landlord’s business or the business of another tenant of Landlord
or act in such a way that reasonably may be expected to injure Landlord’s
business relationship including, but not limited to, acting in any way which
diminishes the access to or the
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treatment requested.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
visibility
of any portion of the Store or any other tenant’s premises or that impedes the
free circulation of customer traffic within the Store.
H. Receive,
retain, or
store in the Leased Premises any “Controlled Substances” except for any
Controlled Substances included in an emergency medical kit. For the
purposes of this Master Lease, “controlled substances” means materials
containing any quantity of a substance with a stimulant, depressant,
hallucinogenic effect on the higher functions of the central nervous system,
and
having the tendency to promote abuse or physiological or psychological
dependence, as designated in state and federal controlled substance schedules
including, but not limited to, those listed in Schedules I through V of the
Controlled Substances Act, 21 U.S.C. §812, as may be amended. Failure
to comply with this paragraph is a material breach.
I. Within
the Leased Premises, receive, retain, store, or use any firearm, tear gas,
▇▇▇▇,
pepper spray, dye pack, or any item similar to a firearm, tear gas, or dye
pack.
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6.11
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Encumbrances
and Liens. Tenant may not cause any encumbrance to attach
to or upon the Leased Premises, the Store, the Common Area, the land
underlying any of the foregoing, or Tenant’s interest in this Master Lease
because of any act or omission of Tenant, its contractors, agents,
employees, or representatives. Failure to discharge any
encumbrance within [***] days following its filing is a material
breach. In addition to any right or remedy Landlord may have
for the material breach, Landlord may bond or pay the encumbrance
for
Tenant’s account without inquiring into the validity of the
encumbrance. If Landlord elects to pay the encumbrance, Tenant
will reimburse Landlord, upon demand by Landlord, the amount Landlord
paid, plus an additional [***] administrative fee, plus
interest. Interest will accrue at the lesser of [***] or the
maximum amount allowed by law beginning on the day Landlord bonds
or pays
the encumbrance and continuing until Tenant reimburses Landlord the
entire
amount Landlord paid, plus the administrative fee and any interest
accrued.
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Article
VII
Repairs
& Maintenance
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Repairs
by Landlord.
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B. Tenant
shall reimburse Landlord for any repairs necessitated by the intentional acts
or
negligence of Tenant or Sublessee or the agents, customer, employee, or
representative of either. Any reimbursement required in the preceding
sentence must be made no later than three (3) calendar days after Landlord
demands reimbursement from Tenant.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
C. Landlord
does not breach its obligations under Section 7.1A, above, until a reasonable
amount of time passes after Tenant notifies Wal-Mart Maintenance, according
to
Section 7.1A, of the needed repair. Rent will not ▇▇▇▇▇ during this
time or while any repairs are being made, and Landlord will not be liable to
Tenant or Sublessee due to loss or interruption of Tenant’s business because of
the prosecution of the repair.
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Tenant’s
Repairs, Maintenance, Handling Hazardous
Substances.
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A. Tenant
shall maintain the Leased Premises in compliance with applicable law and in
good
order and condition. Tenant shall effect, according to applicable
law, all repairs to the Leased Premises (except for those specifically
enumerated in Section 7.1, above) that are commercially necessary or desirable
to maintain the Leased Premises in a safe, dry, and tenantable condition
including, without limitation, repairs to:
(1) Any
portion of the pipes, lines, ducts, wires, or conduits, used solely by
Tenant;
(2) Plate
glass, windows, door frames, and special store fronts;
(3)
Molding, locks and hardware, lighting, plumbing, Trade Fixtures, Signs,
and interior painting and treatment; and
(4) Any
Improvements or Trade Fixtures installed in the Leased Premises, including
any
roof-top heating, ventilation, or air conditioning unit or other rooftop
equipment. Any repairs to the roof-top heating, ventilating, and air
conditioning unit or other rooftop equipment must be made by a Landlord approved
contractor.
(1) Hazardous
material, hazardous waste, hazardous substance, toxic substance, biomedical
waste, infectious waste, medical waste, or toxic waste identified by any federal
or state law; chemical, dust, mixture, medical device, pharmaceutical, or common
material capable of causing harm; or solid, liquid, contained gas, sludge,
pollutant, asbestos, petroleum product, polychlorinated biphenyls, unused or
returned consumer product, or other material, any of which, during the term
of
this Master Lease, become regulated as a hazardous material, hazardous waste,
hazardous substance, toxic waste, or toxic substance; or
(2) Any
solid, liquid, contained gas, sludge, pollutant, asbestos, polychlorinated
biphenyls, or other material that, during the term of this Master Lease, becomes
prohibited or requires special handling or treatment under any applicable law
or
regulation, including common law.
[***]
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
C. Tenant,
at no expense to Landlord, shall maintain the Leased Premises in a clean and
sanitary condition, free from debris or excessive odor, and in compliance with
all laws affecting the Leased Premises, Tenant’s use of the Leased Premises, or
Tenant’s business.
(1) Tenant
shall not allow the accumulation or burning of any rubbish or garbage in, on,
or
about the Leased Premises and shall keep all entrances, doors, or loading areas
in the Leased Premises or immediately adjoining the Leased Premises free from
trash, litter, or other obstruction.
(2) Tenant
shall bear the expense of garbage and rubbish collection and
disposal. If Landlord’s Leasing Operations Department permits Tenant
to use any part of the Store (other than the Leased Premises), Common Area,
or
land underlying the foregoing, to store garbage and refuse generated by Tenant’s
use of the Leased Premises, Tenant and its Sublessees, at the expense of Tenant
or its Sublessee, will keep all such garbage and refuse in the location
designated by Landlord and in the kind of container, including the use of
interior refrigerated garbage containers and compactors, Landlord
specifies.
(3) Tenant
will maintain air pressure in the Leased Premises necessary to keep offensive
odors from emanating from the Leased Premises.
(4) Any
odor producing function of Tenant’s operations must be mechanically vented to
the exterior of the Store and the Leased Premises to eliminate the dissipation
of such odors into the Store or into the interior or exterior of any other
tenant’s space. Exhaust hoods may not project above the roof deck
higher than that allowed by local governmental authorities or code
requirements.
(5) At
Landlord’s written request, Tenant will install any equipment or procedures
necessary to comply with Section 7.2C(3) and Section 7.2C(4). If
Tenant fails to comply with Landlord’s request, within [***] days after
receiving notice, Landlord may take remedial action for Tenant, and Tenant
will
pay, as Additional Rent, the cost of such remedial action plus an administrative
charge of [***] of the cost thereof.
D. If
Tenant fails to pursue diligently any repairs required by this Section 7.2
within [***] days of receiving notice from Landlord of the repair, Landlord
may
repair the Leased Premises as necessary to maintain it in a good, clean, safe,
dry, and tenantable condition. If Landlord makes such repair, Tenant
will reimburse Landlord for its costs, plus an additional [***] administrative
fee when Tenant pays the next months Rent. Tenant will pay interest
at the rate of [***] or the maximum rate allowed under law, whichever is less,
for any amount unpaid after the next months Rent becomes due.
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Store
Renovation.
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A. Landlord,
from time to time, may relocate the Store to another physical
address. If Landlord relocates the Store to another physical address,
Landlord, in its reasonable discretion, may terminate this Master Lease as
to
the applicable Leased Premises but will not be liable for any cost or expense
of
Tenant ceasing operations in the applicable Leased Premises. Landlord
and Tenant may enter into a new Attachment A for the new location of the Store
or any other Store. If Landlord and Tenant enter into a new
Attachment A for the new location or the Store or any other Store, Tenant will
bear all costs and expenses incurred in relocating to the new location
of
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
the
Store
or to any other Store. Tenant will also repair, update, and upgrade
all Trade Fixtures and Improvements to the Leased Premises and ready the newly
located Leased Premises to be open for business to the public for the Store’s
grand opening as required by this Master Lease. Landlord must first
approve all repairs, updates, and upgrade to the Leased Premises.
(1) Landlord
may either temporarily or permanently relocate Tenant within the Store to
another location within the Store that is of like size and configuration as
the
Leased Premises and is in a reasonable condition from which Tenant may operate
if Landlord, in its sole discretion, determines the relocation necessary to
complete Store Renovations. Landlord will bear the cost of moving
Tenant’s Trade Fixtures in the event of a temporary relocation, but Landlord is
not responsible for any expense associated with Tenant’s repairs, updates, and
upgrades of the relocated Leased Premises, whether the relocation is temporary
or permanent. If the relocation is of a permanent nature and Tenant reasonably
determines that the new location will materially impair its operations in the
applicable Leased Premises or is not of like size and configuration as the
original Leased Premises, Tenant may terminate this Master Lease as to the
applicable Leased Premises. If the relocation is temporary and Tenant
reasonably determines that the new location of the Leased Premises will
materially impair its business or that the Store Renovations are materially
impairing its operations in the Leased Premises, Tenant may, with Landlord’s
written consent, close the applicable Leased Premises until Landlord and Tenant
agree that the Store Renovations no longer impair the operations of the
applicable Leased Premises.
(2) If,
in connection with the Store Renovations, Landlord closes the Store for more
than three (3) consecutive days, Tenant may, with Landlord’s written consent,
either close the applicable Leased Premises while the Store is closed in
connection with the Store Renovations and conduct the repairs, updates, and
upgrades of the Leased Premises as required by this Section 7.3B or terminate
this Master Lease as to the applicable Leased Premises.
C. If
the Leased Premises closes in accordance with this Section 7.3, Rent due during
the time in which the Leased Premises is closed will ▇▇▇▇▇. The
Leased Premises must re-open once the Store Renovations and the operations
of
the Leased Premises no longer materially impair each other, as determined by
mutual agreement of the parties.
Article
VIII
Compliance
with Law and Other Requirements
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Rules
and Regulations. Tenant shall observe all rules and
regulations established from time to time by Landlord (as Landlord
may
adopt and publish in the Landlord/Tenant Handbook) including, but
not
limited to:
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
A. [***].
C. Landlord’s
procedures in responding to media inquiries as such inquiries relate to the
Leased Premises, Landlord, or any relationship between Tenant and
Landlord.
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Compliance.
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A. Tenant
shall comply with all federal, state, and local laws, rules, orders, directives,
and regulations pertaining to its operations within the Leased Premises
including, but not limited to and as amended, the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §621, et seq.; the Americans with Disabilities
Act of 1990, 42 ▇.▇.▇. §▇▇▇▇▇, et seq.; the Child ▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇, et
seq.; the Civil Rights Act of 1964, et seq.; the Economic Dislocation and Worker
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇, et seq.; the Employee Polygraph Act of 1988, 29
U.S.C. §2001, et seq., the Equal Pay Act of 1963, 29 U.S.C. §201, et seq.; the
Fair Labor Standards Act of 1938, 29 U.S.C. §201, et seq.; the Family and
Medical Leave Act of 1993, 29 ▇.▇.▇. §▇▇▇▇, et seq.; the Immigration Reform and
Control Act of 1986, 8 U.S.C. §1324a, et seq.; the Older Worker Benefit
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇, et seq.; and the Omnibus Budget Reconciliation
Act of 1986, 29 U.S.C. §623, et seq.; and all other applicable laws, statutes,
and regulations.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
(1) Comply
in all respects with all immigration laws and regulations;
(2) Properly
maintain all records required by the United States Citizenship and Immigration
Services (the "USCIS") including, without limitation, the completion and
maintenance of the Form I-9 for each party's employees;
(3) Respond
in a timely fashion to any inspection requests related to such I-9
Forms;
(4) Cooperate
fully in all respects with any audit, inquiry, inspection, or investigation
the
USCIS may conduct of such party or any of Tenant's employees;
(5) Conduct
annual audit of the I-9 Forms for its employees; and
(6) Promptly
correct any defects or deficiencies the audit reveals;
(7) Require
all subcontractors performing any work for Tenant to comply with the covenants
set forth in this Section 8.2B.
C. With
respect to its business operations in the Leased Premises, Tenant shall comply
with the Comprehensive Environmental Response, Compensation and Liability Act,
the Superfund Amendment and Reauthorization Act, the Resource Conservation
Recovery Act, the Federal Water Pollution Control Act, the Federal Environmental
Pesticides Act, the Clean Water Act, any federal, state, or local “Superfund” or
“Super Lien” statute, or any other statute, law, ordinance, code, rule,
regulation, order , or decree, including any amendments thereto, regulating,
relating to, or imposing liability (including strict liability), or standards
of
conduct concerning any Hazardous Substance or any escape, seepage, leakage,
spillage, emission discharge, or release of any Hazardous Substance or material
resulting from Tenant’s use, handling, management, storage, transportation and
disposal of any Hazardous Substance in, about, or under the Store.
D. Tenant
shall comply with the provisions of the Americans with Disabilities Act (“ADA”)
in complying with its obligations under this Master Lease.
(1) If,
after Landlord delivers to Tenant the applicable Leased Premises, the presence
of any ADA violation on the applicable Leased Premises requires remedial work
on
the Leased Premises, Tenant will promptly take all actions at its sole expense
as are required by any federal, state, or local government agency or political
subdivision to comply with the ADA; provided that Landlord's consent to such
actions is first obtained, which consent Landlord may not unreasonably withhold
or delay.
(2) In
addition to Tenant’s obligations under Article XIII, Tenant shall indemnify,
defend and hold harmless the Indemnitees from any Claim including, without
limitation, diminution in value of the Leased Premises, damages for the loss
or
restriction of use of rentable or usable space or of any amenity of the Leased
Premises, damages arising from any adverse impact on marketing of space of
the
Leased Premises, and sums paid in settlement of claims, attorney's fees,
consultation fees and expert fees arising during or after the applicable Lease
Term as a result of such violation. Tenant’s obligations in the
preceding sentence include, without limitation, costs incurred in connection
with any investigation of site conditions or
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
any
remedial work required by any federal, state, or local government agency or
political subdivision because of any ADA violation present on or about the
Leased Premises.
E. Tenant
represents and warrants that neither it nor its Sublessees are:
(1) A
person or entity designated by the U.S. Government on the list of the Specially
Designated Nationals and Blocked Persons (the “SDN List”), as maintained by the
U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇, with which a U.S. person
or
entity cannot deal with or otherwise engage in business
transactions;
(2) A
person or entity who is otherwise the target of U.S. economic sanctions and
trade embargoes enforced and administered by OFAC, such that a U.S. person
or
entity cannot deal or otherwise engage in business transactions with such Tenant
or its Sublessees;
(3) Either
wholly or partly owned or wholly or partly controlled by any person or entity
on
the SDN List, including without limitation by virtue of such person being a
director or owning voting shares or interests in an entity on the SDN
List;
(4) A
person or entity acting, directly or indirectly, for or on behalf of any person
or entity on the SDN List; or
(5) A
person or entity acting, directly or indirectly, for or on behalf of a foreign
government that is the target of the OFAC sanctions regulations such that the
entry into this Master Lease would be prohibited under U.S. law.
F. [***].
G. Tenant
shall maintain the warranties and representations Tenant made under this Master
Lease, all of which are remade and reaffirmed by Tenant when signing each new
Attachment A, in full force and effect throughout the term of this Master
Lease.
H. Any
failure by Tenant to comply with its obligations under this Section 8.2 is
a
material breach.
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8.3
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Landlord’s
Right of Removal. Landlord, in its sole judgment and
discretion, may deny entry to or remove from its premises any Tenant
or
Sublessee, or any agent, employee, or representative of either Tenant
or
Sublessee, who violates any of Landlord’s rules or
regulations.
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Article
IX
Right
to
Access & Common Areas
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
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9.1
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Landlord’s
Right to Access. Landlord may enter the Leased
Premises:
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A. Without
notice to either inspect the Leased Premises, enforce any of Landlord’s rules
and regulations, enforce a provision of this Master Lease or in case of an
emergency;
B. Upon
reasonable notice to Tenant, either to affect repairs it is obligated to perform
or to add, alter, improve, repair, or otherwise construct or maintain any part
of the Store adjacent to the Leased Premises; and
C. With
twenty four (24) hours advance notice to Tenant to show the Leased Premises
to a
prospective lender, lessee, or purchaser.
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9.2
|
“For
Rent” or “For Lease”. Landlord may post “For Rent” or “For
Lease” signs on the Leased Premises during the last ninety (90) days of
the Leased Term if, in accordance with this Master Lease,
Landlord and Tenant do not extend the Lease
Term.
|
|
9.3
|
Tenant’s
Right to Access.
|
A. Tenant,
its Sublessee, and the agent, customer, employee, or representative of each,
has
a limited right, during the Hours of Operation listed in Appendix-1, to enter
upon the Common Areas of the Store in order to conduct business in the Leased
Premises.
B. Except
as set forth in Article II and Article VII, Tenant has no rights or obligations
related to the rooftop of the Leased Premises.
C. Tenant,
with Landlord’s prior consent, may enter Landlord’s property for the limited
purpose of servicing, maintaining, and otherwise performing its obligations
in
connection with this Master Lease at times the Store is not open to the public
for business if Tenant, in no way, provides its services to the public during
that time.
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9.4
|
Parking. Tenant,
its Sublessee, and the agents, employees, and representatives of
each,
while working in the Leased Premises, may park their motor vehicles
in
spaces designated by Landlord. Landlord may tow or cause to be
towed, at the expense of the owner of the motor vehicle, any motor
vehicle
owned by Tenant, its Sublessee, or the agents, employees, and
representatives of each, that is parked in any area of Landlord’s property
other than the parking area
designated.
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|
9.5
|
Landlord’s
Liability. If Landlord enters the Leased Premises according
to the provisions of this Master Lease, Landlord is not liable to
Tenant
for any loss, liability, or damages resulting from Landlord’s
entry. If Landlord enters the Leased Premises during the Hours
of Operation, Landlord will use commercially reasonable efforts not
to
interfere with Tenant’s business, and Landlord will not be liable to
Tenant for any loss, including lost profits, for any resulting business
interruption.
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|
9.6
|
Common
Areas. Despite the preceding Sections, Landlord may close
or prohibit the use of any Common Area, in part or in whole; may
change
the location or appearance of the Common Area; or may erect additional
structures in the Common Area.
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Article
X
Transfer
of Interest, Subordination, Attornment
***Confidential
treatment requested.
20
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
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10.1
|
Transfer
of Tenant’s Interest. For the purposes of this Master
Lease, “Affiliate” means a corporation related to Tenant by shareholdings
or any other means of control; a subsidiary of Tenant; Tenant’s parent
company; or a sibling company of Tenant. Except to an Affiliate
known to Landlord at the time Landlord signs this Master Lease
Agreement:
|
A. Tenant
may not, without the prior, written consent of Landlord, which Landlord will
not
unreasonably withhold:
(1) Transfer,
encumber, or pledge (collectively and individually, “Transfer”) its interest in
this Master Lease, either in its entirety or as to a particular Leased Premises,
or an applicable Leased Premises;
(2) Permit
any Transfer or interest of this Master Lease by operation of law;
(3) Permit
any person or entity other than Tenant to use the Leased Premises;
or
(4) Cause
or permit Tenant’s dissolution, merger, or consolidation, unless Tenant is
merging or consolidating with an Affiliate.
B.
Tenant shall notify Landlord, in writing, prior to or simultaneously
with, a public announcement of the Transfer within any twelve (12) month period
of either more than an aggregate of fifty percent (50%) of Tenant’s voting
shares or more than fifty percent (50%) of the value of Tenant’s unencumbered
assets (as of the date of the Transfer); or the Transfer of any part or all
of
its shares of stock resulting in a change in Tenant’s present effective voting
control by the person owning a majority of said shares of stock on the day
Tenant signs this Master Lease. If a Transfer occurs, Landlord, in
its sole discretion, may terminate this Master Lease in its entirety by
providing written notice to Tenant within ninety (90) days following receipt
by
Landlord of Tenant’s notice as required above. Tenant’s failure to
provide Landlord notice as required above constitutes a material breach of
this
Master Lease.
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10.2
|
Effect
of Unauthorized Transfer. Subject to the exceptions in
Section 10.1, any Transfer or attempted Transfer without Landlord’s prior,
written consent will be void and will not confer any rights upon
any third
person.
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|
10.3
|
Requesting
Landlord’s Consent.
|
A. Any
request for Landlord’s consent pursuant to this Article X must be in writing and
include:
(1) The
proposed effective date of the Transfer, which should not be less than [***]
days nor more than [***] days in advance of the notice;
(2) All
of the terms, including the consideration, of the proposed Transfer, the name
and address of the proposed transferee, and a copy of all documentation
pertaining to the proposed Transfer; and
(3) The
current audited financial statements of the proposed transferee or any other
financial statements that would enable Landlord to determine the financial
responsibility, character, and reputation of the proposed
transferee.
B. Tenant
shall provide any additional information Landlord requests in connection with
the proposed Transfer.
***Confidential
treatment requested.
21
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
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10.4
|
Effect
of Consent.
|
A. If
Landlord consents to any Transfer, that consent is not effective until and
unless:
(1) Landlord
receives a copy of the assignment affecting the Transfer and
(2) The
transferee delivers to Landlord a written agreement, in form and substance
satisfactory to Landlord, by which the transferee assumes all of the obligations
and liabilities of Tenant under this Master Lease.
B. Any consent by Landlord to a Transfer does not constitute a waiver by Landlord of any prohibition against any future Transfers.
C. No
Transfer relieves Tenant of any obligations under this Master
Lease.
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10.5
|
Transfer
Premium.
|
A. For
the purposes of this provision, “Transfer Premium” means all Rent or other
consideration payable by the Transferee in any monthly period that is in excess
of the Rent payable by Tenant under this Master Lease in the same monthly
period.
B. Tenant
promptly, without notice or demand, shall pay Landlord [***] of any Transfer
Premium Tenant receives in connection with a Transfer.
C. Tenant
shall pay Landlord, in a form satisfactory to Landlord, any part of the Transfer
Premium Tenant receives in a non-cash form.
D. In
lieu of accepting any payment from Tenant of a Transfer Premium, Landlord may
elect, with ninety (90) days written notice, to increase the Rent due under
this
Master Lease as to the transferred Leased Premises by an amount equal to
Landlord’s share of the monthly amount of the Transfer Premium.
E.
Landlord and its authorized representatives have the right to conduct an audit,
relating to any Transfer Premium, of Tenant at Tenant’s place of business during
Tenant’s regular work hours and with reasonable notice. If the audit
establishes that Tenant underpaid Landlord Landlord’s percentage of the Transfer
Premium, Tenant, within thirty (30) days following receipt of written demand,
will pay the deficiency and Landlord’s costs of such audit. If the
deficiency is greater than [***], Landlord may terminate this Master Lease
as to
the transferred Leased Premises. If the audit establishes that Tenant
overpaid Landlord Landlord’s percentage of the Transfer Premium, Landlord,
within thirty (30) days following receipt of written demand by Tenant, will
pay
the overage.
F. This
provision does not apply to:
(1) Any
Transfer between Affiliates,
(2) Payments
made by a transferee for Tenant’s customer deposits, or
(3) Tenant’s
furniture, fixtures, and equipment.
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10.6
|
Transfer
of Landlord’s Interest.
|
***Confidential
treatment requested.
22
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
A. Landlord
may Transfer all or a part of its interest in the Store, the Common Areas,
or
the Leased Premises to a parent, subsidiary, or affiliated corporation of
Landlord without prior consent or notice to Tenant.
B. If
Landlord Transfers its interest in this Master Lease as to a Leased Premises
and
the transferee assumes all of Landlord’s future obligations under this Master
Lease, Landlord will be released from any further obligations under this Master
Lease as to the transferred interest. Tenant agrees to look solely to
Landlord’s transferee for performance of obligations under this Master
Lease. Landlord will transfer to the transferee any security given by
Tenant according to Section 4.6, and Landlord will be discharged from any
further obligation relating to the security.
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10.7
|
Subordination. Landlord
may elect that this Master Lease, as to a particular Leased Premises,
be
subordinate to or paramount to the lien of any
mortgage. Landlord’s right to elect is self-operative, and no
further instrument will be required. If Landlord requests,
Tenant will do one or both of the
following:
|
A. Confirm
in writing and in a recordable form that this Master Lease, as to a particular
Leased Premises, is subordinate to or paramount to (as Landlord elects) the
lien
of any mortgage; and
B. Execute
an instrument making this Master Lease, as to the particular Leased Premises,
subordinate or paramount (as Landlord may elect) to the lien of any mortgage,
in
a form as may be required by any applicable mortgagee.
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10.8
|
Attornment. Tenant
may not disaffirm any of its obligations under this Master Lease
if
Landlord Transfers the Store or a particular Leased Premises to a
successor. Tenant will attorn to and be bound by the terms,
covenants, and conditions of this Master Lease as to the affected
Leased
Premises for the balance of the Lease
Term.
|
Article
XI
Casualty
|
Fire
or Other Casualty. Tenant shall promptly notify Landlord,
in writing, of any damage caused to a Leased Premises by
casualty.
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|
11.2
|
Election
to Rebuild.
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B. If
Landlord does not elect to repair and restore structural damage to a Leased
Premises damaged by casualty, this Master Lease as to the applicable Leased
Premises will terminate.
C. If
Landlord elects to repair the structural damage to a Leased Premises damaged
by
casualty, Landlord, after notifying Tenant of its election, will diligently
undertake the appropriate measures necessary to complete the repairs to the
applicable Leased Premises in a commercially reasonable amount of
time. Landlord will return the applicable Leased Premises to Tenant
in substantially the same condition the applicable Leased Premises was in on
the
Delivery Date. Tenant will then complete the build-out of the
applicable Leased Premises with commercially
***Confidential
treatment requested.
23
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
reasonable
diligence and return the applicable Leased Premises to substantially the same
condition the applicable Leased Premises was in immediately prior to the
casualty.
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11.3
|
Rent
Abatement. If Landlord elects to repair the structural
damage to a Leased Premises damaged by casualty, Landlord may ▇▇▇▇▇
Rent
due on the applicable Leased Premises to the extent that
the:
|
A. Applicable
Leased Premises is closed for repair, or
B. Tenant’s
operations within the Leased Premises are impaired by the structural damage
and
subsequent repairs.
Article
XII
Condemnation
& Eminent Domain
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12.1
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Total
or Substantial Taking. If a Taking of a Leased Premises, or
a Store in which exists a Leased Premises, occurs, this Master Lease
as to
the applicable Leased Premises will terminate automatically as of
the date
of the Taking. For purposes of this Master Lease, “Taking”
means any government action that deprives, directly interferes with,
or
substantially disturbs the use and enjoyment of the Leased Premises,
any
of which may occur because of either the exercise of the power of
eminent
domain or condemnation or resulting from a purchase in lieu
thereof.
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|
12.2
|
Partial
Taking. If a Taking of only a portion of the Leased
Premises, or of a Store in which exists a Leased Premises, occurs,
Landlord may either:
|
A. Terminate
this Master Lease, without liability, as to the applicable Leased Premises;
or
B. Reduce
the Base Rent in proportion to the area of the Leased Premises affected by
the
Taking until such time that portion of the Store or the Leased Premises is
restored.
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12.3
|
Temporary
Use. If a Taking of the Leased Premises occurs for
temporary use, this Master Lease will continue in full force and
effect as
to the applicable Leased Premises. Tenant will continue to
comply with its obligations under this Master Lease, and any appendix,
amendment, or attachment hereto, to the extent compliance is possible
because of the Taking for temporary use. If during the
temporary Taking, Tenant is unable, based on a commercially reasonable
standard, to operate its business from the Leased Premises such that
Tenant reasonably is unable to open the Leased Premises for business,
Landlord will reduce Tenant’s Rent in proportion with the number of days
the Leased Premises is closed during the temporary
Taking.
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|
12.4
|
Compensation. Any
compensation arising out of the Taking of a Leased Premises belongs
to and
is the property of Landlord without any participation by
Tenant. Tenant hereby assigns to Landlord any share of any
compensation arising out of the Taking of a Leased Premises that
may be
awarded to Tenant and waives any rights it may have with respect
to the
loss of its leasehold
estate.
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Article
XIII
Indemnity
and Liability
|
Definitions. For
the purposes of this Master Lease:
|
A.
“Claim” means any action, cause of action, claim, or any other assertion of a
legal right; damages including, but not limited to, consequential, future,
incidental, liquidated, special, and
***Confidential
treatment requested.
24
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
punitive
damages; diminution in value; fines; judgments; liabilities; losses including,
but not limited to, economic loss and lost profits; and regulatory actions,
sanctions, or settlement payments.
(1) Landlord,
its subsidiaries, affiliates, officers, directors, employees, agents,
and
(2) Any
lessor of Landlord or other party to an agreement with Landlord related to
Landlord’s purchase or lease or use of the Store or the underlying land, which
Landlord has a contractual obligation to indemnify for Claims in connection
with
the Store or the Leased Premises.
C. “Indemnified
Claim” means a Claim for which Tenant is obligated to indemnify, defend, and
hold harmless the Indemnitees according to Section 13.2, below.
|
Indemnification. Tenant
shall indemnify, defend, and hold harmless the Indemnitees against
any
Claim, even if the Claim is groundless, fraudulent, false, or
raised or asserted by a third party, including a government entity,
in
connection with or resulting from:
|
D. Indemnitees
actual or alleged passive negligence, secondary liability, vicarious liability,
strict liability, or breach of a statutory or non-delegable duty, related,
directly or indirectly, to any matter covered under Section 13.2 of this Master
Lease.
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13.3
|
Scope
of Indemnity. Tenant’s obligations under this Article
XIII:
|
A. Is
independent of, and not limited by, any of Tenant’s obligations under Article
XIV, below, even if damages or benefits are payable under worker’s compensation
or other statutes or if Tenant breaches its obligations under Article XIV,
below.
B. Survive
the termination or expiration of this Master Lease until applicable law fully
and finally bars all Claims against the Indemnitee. ALL OBLIGATIONS
UNDER THIS ARTICLE XIII WILL BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW FOR THE BENEFIT OF THE INDEMNITEES. In the event that applicable
law affects the validity or enforceability of this Article XIII, that applicable
law will operate to amend this Article XIII to the minimum extent necessary
to
bring the provisions of this Article XIII into conformity with the applicable
law. This Article XIII, as modified, will continue in full force and
effect.
***Confidential
treatment requested.
25
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
C. Applies
unless and until a final judicial decision, from which there is no further
right
to appeal, determined that the Indemnitee is not entitled to be indemnified,
defended, and held harmless under this Agreement.
|
13.4
|
Defense
of Claim.
|
A. On
receiving notice, from whatever source, of the Indemnified Claim, Tenant
shall:
(1) Promptly
notify Landlord of the assertion, filing, or service of any Indemnified Claim
of
which Tenant becomes aware; and
(2) Immediately
take all appropriate actions necessary to protect and defend the Indemnitees
regarding the Indemnified Claim.
B. Tenant
shall cause the counsel engaged to defend the Indemnitees with respect to the
Indemnified Claim to acknowledge receipt of, to accept, and to represent
Indemnitees’ interest regarding the Indemnified Claim in accordance with
“Wal-Mart’s Indemnity Counsel Guidelines.”
C. If,
in its sole discretion, the Indemnitees determine that a conflict of interest
exists between the Indemnitees and the indemnifying counsel or that the
indemnifying counsel is not pursuing a defense for the Indemnitees that is
in
the Indemnitees’ best interests, the Indemnitees may request Tenant replace the
indemnifying counsel.
(1) Tenant
shall not unreasonably withhold its consent to replace the indemnifying counsel
and will replace the indemnifying counsel timely or cause the indemnifying
counsel to be replaced timely.
(2)
If Tenant unreasonably withholds consent or the indemnifying counsel is not
timely replaced after the Indemnitees requested, the Indemnitees may replace
the
indemnifying counsel, and Tenant will reimburse the Indemnitees any costs
incurred by the Indemnitees in replacing the counsel.
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13.5
|
Waiver. Tenant
waives any right, at law or in equity, to indemnity or contribution
from
the Indemnitees.
|
|
13.6
|
Non-liability
of Landlord and Tenant.
|
A. Landlord
will not be liable to Tenant or Sublessee, or any agent, employee,
representative, or customer of Tenant or Sublessee, and Tenant will not be
liable to Landlord, for any Claim relating to the negligence or willful
misconduct of any of Landlord’s customers, invitees, or other lessees or
sublessees or any customers or invitees of Landlord’s other lessee and
sublessees.
B.
Landlord will not be liable to Tenant for any Claim relating to the condition
of
the Store, the Common Areas, or the Leased Premises in connection with disrepair
or defect in any:
(1) Structural
element of the Leased Premises;
(2) Trade
Fixtures, Improvements, wiring, or any of Tenant’s installations;
(3) Back
up of drains constructed or installed by Tenant; or
***Confidential
treatment requested.
26
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
(4) Gas,
water, steam, electricity, grease, or oil, leaking, escaping, or flowing, from
any equipment, pipes, drains, wiring, Trade Fixtures, or Improvements installed
or maintained by Tenant.
|
13.7
|
Breach
of Article XIII. Any failure by Tenant to comply with this
Article XIII is a material breach of this Master Lease, which does
not
relieve Tenant of its obligations under this Article
XIII.
|
Article
XIV
Insurance
|
14.1
|
Insurance
Required. Tenant shall procure and maintain, at Tenant's
own expense, the insurance policies described in the attached
Appendix-2. All insurance policies required by this Master
Lease must be obtained from an insurance company with a rating of
A+ or
better and a financial Size Category rating of VII or better as rated
in
the A.M. Best Key Rating Guide for Property and Casualty Insurance
Companies (“Insurer”), unless self-insured as discussed in Section 14.3,
below.
|
|
Requirements.
|
A. Tenant
and its Sublessees bear the responsibility of insuring for fire and all risks,
including risk of flood, earthquake, and terrorism, associated with the
merchandise, Trade Fixtures, and Improvements related to the operation of the
Leased Premises. At no time is Landlord liable for any Damage or
Injury to Tenant’s business property, Improvements, betterments, or Trade
Fixtures within any of the Leased Premises due to fire or any other risk covered
under a Causes of Loss – Special Form insurance policy or due to flood,
earthquake, or terrorism.
(1) Be
submitted to Landlord at the address provided in the preceding
sentence;
(2) Show
the name and address of the Insurer;
(3) Show
the policy number and date(s) of coverage for each policy procured by Tenant
in
satisfaction of its obligations under this Master Lease;
(4) Include
the name, address, telephone number, and signature of the authorized person
providing the Certificate of Insurance;
(5) Verify
the insurance coverage required in this Article XIV and the
Appendix-2;
(6) Where
permitted by law, list as Additional Insureds Wal-Mart Stores, Inc., its
Subsidiaries and its Affiliates, and the directors, officers, shareholders,
employees, agents, and representatives, and the respective successors and
assigns of each, and any party that Landlord has a contractual
obligation to indemnify in relation to Tenant’s use of the applicable Leased
Premises;
(7) Verify
that Insurer waives subrogation in favor of Landlord and Landlord’s affiliates
and subsidiaries;
***Confidential
treatment requested.
27
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
(8) Verify
the insurance policies are primary, non-contributory, and not in excess of
any
insurance the Additional Insured has available to it; and
(9) Where
permitted by law, provide coverage for punitive damages.
|
Self-Insured.
|
A. Landlord
may accept self-insurance in lieu of the insurance policies set forth in this
Article XIV and the attached Appendix-2 if Tenant provides to
Landlord
(2) Proof
that Tenant’s net worth is at least ten (10) times the amount of Commercial
General Liability insurance required by this Master Lease; and
B. If
Landlord accepts self-insurance in lieu of the insurance policies set forth
in
this Article XIV and the attached Appendix-2, Tenant hereby agrees to the
obligations of any endorsement or Certificate of Insurance required under
Section 14.2, above, and that may be required under any appendix, amendment,
or
attachment hereto. Such obligations become Tenant’s obligations under
this Master Lease.
|
14.4
|
Mutual
Waiver of Subrogation. Landlord and Tenant each hereby
release the other from all liability or responsibility to the other
or to
any other party claiming through or under them by way of subrogation
or
otherwise or for any loss or damage to property caused by casualty
that is
customarily insured under a Causes of Loss – Special Form insurance policy
or that is due to flood, earthquake, or terrorism. This mutual
waiver applies only to Damage or Injury to Tenant’s business property,
Improvements, betterments, or Trade Fixtures within any of the Leased
Premises occurring during the time when Tenant’s business property,
Improvements, betterments, or Trade Fixtures within any of the Leased
Premises are covered under a Causes of Loss – Special Form insurance
policy or are due to flood, earthquake, or terrorism for which Tenant
has
insurance coverage.
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|
14.5
|
Breach. Failure
to procure and maintain the insurance required under this Article
XIV and
the attached Appendix-2 constitutes a material breach of this Master
Lease. Tenant shall indemnify, defend, and hold harmless the
Indemnitee against Indemnified Claim that the required insurance
would
have covered but for Tenant’s
breach.
|
|
14.6
|
Insurance
Obligation is in Addition to Other Obligations. Tenant’s
obligations under this Article XIV and the attached Appendix-2 are
in
addition to, not in lieu of, Tenant’s other obligations, including
Tenant’s obligations under Article XIII, to Landlord under this Master
Lease.
|
Article
XV
Confidentiality
***Confidential
treatment requested.
28
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
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15.1
|
The
terms and provisions of this Master Lease affect present and future
negotiations Landlord or Tenant may have with another party. As
such, Landlord and Tenant, and the agents, employees, and representatives
of each, shall each keep confidential, disclosing only such information
as
is required by law or by mutual, written agreement between Landlord
and
Tenant.
|
|
15.2
|
Tenant
shall not disclose any information that Landlord may ▇▇▇▇ as confidential
or proprietary including, but not limited to, lists of available
rental
space and marketing plans or schedules that Landlord may make available
or
known to Tenant, disclosing only such information as is required
by law or
by mutual, written agreement between Landlord and
Tenant.
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|
15.3
|
Failure
to comply with this Article XV is a material breach of this Master
Lease.
|
Article
XVI
Covenant
of Quiet Enjoyment
|
16.1
|
Landlord
covenants that Tenant peaceably and quietly may enjoy the Leased
Premises
in accordance with, and subject to, the terms of this Master Lease
and
without any interruption or disturbance from Landlord, provided
Tenant:
|
A. Pays
Rent and all other charges provided for in this Master Lease and any appendix,
amendment, or attachment hereto,
B. Performs
all of its obligations provided for under this Master Lease, and
C. Observes
all of the other provisions of this Master Lease.
Article
XVII
Default,
Termination, Surrender, Tenant’s Liability, Right of Reentry
Tenant’s
Waivers, Landlord’s Right to Perform, Cumulative Rights
|
Default. Each
of the following events constitutes a Default of this Master
Lease:
|
A. Tenant
files for Insolvency or is adjudicated Insolvent. For the purposes of
this Master Lease, “Insolvency” means any petition filed by Tenant in
bankruptcy, for reorganization or arrangement, or for appointment of a receiver
or trustee; Tenant acquiescing to a petition for bankruptcy, reorganization,
arrangement, or the appointment of a receiver or trustee by a creditor; or
any
assignment by Tenant for the benefit of a creditor.
B. A
petition for Insolvency is filed against Tenant, to which Tenant does not
acquiesce, and that, within five (5) days following the filing, is not
dismissed, discontinued, or vacated;
C. Tenant’s
interest in this Master Lease, in its entirety or as to a particular Leased
Premises is assigned by operation of law;
E. Tenant
breaches any material obligation or covenant under this Master
Lease.
***Confidential
treatment requested.
29
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
F. Tenant
breaches any non-material obligation or covenant under this Master Lease more
than two (2) times in a calendar year, and each breach remains uncured ten
(10)
days after Tenant receives written or verbal notice of the breach from
Landlord.
G. After
the Rent Commencement Date, Tenant fails to open the applicable Leased Premises
according to the Hours of Operation designated in Appendix-1 two (2) or more
times in a calendar year, without Landlord’s prior, written approval or as
otherwise allowed under this Master Lease.
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17.2
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Termination
for Default. Landlord may terminate this Master Lease, in
its entirety or as to a particular Leased Premises, without any liability,
if Tenant Defaults, as defined in Section 17.1, above, or elsewhere
in
this Master Lease, by written notice to Tenant. However,
Landlord may wait to terminate this Master Lease, in its entirety
or as to
a particular Leased Premises, until after it re-lets the Leased Premises
in accordance with this Article, and Tenant pays Landlord all sums
due
Landlord under this Master Lease.
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|
Surrender
at Termination or Expiration. Unless otherwise provided in
Appendix-1, by the date on which this Master Lease as to the applicable
Leased Premises terminates, for whatever reason, Tenant shall immediately
surrender and quit the applicable Leased Premises and, in the two
(2)
calendar days preceding the date on which this Master Lease terminates,
for whatever reason, shall remove all property, Trade Fixtures, and
Improvements from the Leased Premises and
either:
|
A. Return
the Leased Premises to White Box condition, or
B. In
lieu of returning the Leased Premises to a White Box condition, pay Landlord
[***].
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Landlord’s
Right of Reentry. If Tenant fails to surrender the
applicable Leased Premises in accordance with this Article, Landlord,
its
agents, employees, or representatives, without prejudice to any right
or
remedy available to Landlord under this Master Lease, at law, or
in equity
and subject to applicable law, may:
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A. Re-enter
and repossess the applicable Leased Premises and do one or more of the
following:
(1) Dispose
of any property, Trade Fixtures, or Improvements remaining therein.
(2) Relet
the Leased Premises, and if Landlord relets the Leased Premises for Rent and
other charges equal to or greater than the Rent and other charges for which
Tenant remains liable, Tenant will be released from further liability under
this
Master Lease.
(3) Use
all or a portion of the Leased Premises, in which case the fair market value
of
the applicable Leased Premises, or the portion of that Leased Premises used,
will be used in calculating Tenant’s liability described in Section 17.5,
below. If the fair market value equals or is greater than the Rent
and other charges for which Tenant remains liable, Tenant will be released
from
further liability under this Master Lease.
(4) Demand
full and final settlement, whereupon Tenant shall pay Landlord the present
value
of the total of all future Rent that would come due under this Master Lease
but
for the termination of this Master Lease, plus other charges that may apply
under this Master Lease, less the fair market value of the particular Leased
Premises. Present value will be calculated
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BRACKETS.
at
[***],
at which time Tenant will be released from further liability under this Master
Lease.
B. Continue
this Master Lease in full force and continue to look to Tenant to perform all
Tenant’s obligations under this Master Lease, but Landlord may pursue Tenant for
damages incurred or equitable relief or both.
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17.5
|
Survival
of Tenant’s Liability. Upon termination of this Master
Lease, in its entirety or as to a particular Leased Premises and
without
prejudice to any right or remedy available to Landlord under this
Master
Lease, at law, or in equity and subject to applicable law, Tenant
remains
liable for:
|
A. Damages
for its failure to pay Rent, and other charges;
B. Damages
for its failure to perform other obligations;
C. Expenses
Landlord incurs in the course of evicting Tenant and reentering the Leased
Premises, including reasonable attorneys fees and court costs; and
D. Unless
Tenant surrenders the Leased Premises in accordance with this Article, any
cost
incurred by Landlord in returning the Leased Premises to the same condition
in
which Tenant received the Leased Premises on the Delivery Date, less any revenue
received by Landlord by re-letting the Leased Premises, less any claim Landlord
successfully makes against the Surety Bond required pursuant to Section
4.6.
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17.6
|
Tenant’s
Waivers. Landlord and Tenant waive any right to
trial by jury on all issues in all litigation between Landlord and
Tenant
arising from or relating to this Master Lease, and Tenant,
additionally, waives any:
|
A. Right
to withhold or reduce Tenant’s required payments of Rent and other charges for
which Tenant is obligated under this Master Lease;
B. Statutory
requirements of prior, written notice before filing for eviction or for any
damages suit for non-payment of Rent;
C. Claim
for damages against Landlord resulting from Landlord’s re-entry;
D. Rights
to bring any counterclaim, proceeding, or other cause of action in relation
to
dispossession; and
E. To
the extent legally permissible, for itself and all persons claiming by, through,
or under it, any right of redemption or for the restoration of the operation
of
this Master Lease under any present or future law in case Tenant is dispossessed
for any cause or in case Landlord obtains possession of the Leased Premises
as
herein provided.
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Landlord’s
Right to Perform for Account of
Tenant.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
C. In
addition to all other obligations under this Master Lease, Tenant shall pay
interest to Landlord, at the maximum lawful rate, on the amount specified in
Sections 17.7A and 17.7B, from the date Landlord incurs the expense until the
day reimbursed.
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17.8
|
Cumulative
Rights.
|
A. Landlord’s
rights and remedies set forth in this Master Lease are cumulative and in
addition to any other right and remedy now and hereafter available to Landlord
by this Master Lease, at law or in equity. Landlord may exercise its
rights and remedies at any time, in any order, to any extent, and as often
as
Landlord deems advisable.
B. A
single or partial exercise of a right or remedy will not preclude a further
exercise of that or another right or remedy.
C. No
action, inaction, delay, or omission by Landlord in exercising a right or remedy
exhausts or impairs the same or constitutes a waiver of, or acquiescence to,
a
breach of this Master Lease or Default.
D. If
Landlord waives a breach of this Master Lease or a Default, that waiver does
not
extend to or affect any other breach of this Master Lease or any other Default
nor will it impair any right or remedy with respect thereto.
E. Acceptance
by Landlord of Rent after Landlord notifies Tenant of termination does not
waive
Landlord’s right to terminate or pursue any other right and remedy available to
Landlord under this Master Lease, at law, or in equity.
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17.9
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Landlord’s
Default.
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A. Landlord’s
failure to perform any of its obligations under this Master Lease may constitute
a default of this Master Lease, in its entirety or as to the particular Leased
Premises affected by Landlord’s failure to perform, if Tenant notifies Landlord,
in writing, of Landlord’s failure to perform, and Landlord fails to cure the
failure to perform within at least thirty (30) days after Landlord receives
Tenant’s notice or such longer period of time as may reasonably be necessary to
cure the type of alleged breach under the circumstances. Notice
required under this Section must include a description of the particular facts
and circumstances alleged giving rise to the alleged breach and the date of
commencement of the alleged breach.
B. If
Landlord defaults on this Master Lease, Tenant, in addition to any other rights
or remedies to which it is entitled at law or in equity, may:
(1) Treat
this Master Lease as still in full force and effect continuing to look to
Landlord to perform its obligations under this Master Lease but seek damages
or
equitable relief, or both; or
(2) Terminate
this Master Lease, in its entirety or as to the applicable Leased Premises,
with
thirty (30) days written, notice stating the date on which Tenant will vacate
the Leased Premises. If Tenant fails to timely vacate the Leased
Premises, Tenant’s notice of termination
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will
be
deemed to be void; the Master Lease, in its entirety or as to the applicable
Leased Premises, will continue in full force and effect, and Landlord will
be
deemed to have cured any alleged breach.
C. Regardless
of which remedy Tenant pursues, LANDLORD’S LIABILITY FOR DEFAULT UNDER
THIS MASTER LEASE, AT LAW OR IN EQUITY, WILL NOT EXCEED AN AMOUNT EQUAL TO
ONE
(1) YEARS RENT PAID BY TENANT FOR THE LOCATION IN WHICH LANDLORD WAS FOUND
IN
DEFAULT.
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17.10
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Force
Majeure. If a force majeure occurs, the time that
the force majeure delays performance by either Landlord or Tenant
will be
excluded from the computation of time within which Landlord, Tenant,
or
both, must perform under this Master Lease. For purposes of
this Master Lease, a force majeure is a strike, riot, act of God,
shortage of material, war, governmental law, regulation, or restriction,
or any other cause of any kind that is beyond the reasonable control
of
the party owing performance.
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Article
XVIII
Holding
Over & Estoppel Certificates
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Holding
Over. If Tenant remains in possession of the Leased
Premises after the expiration of the Lease Term without a new Attachment
A
or Master Lease executed by both Landlord and Tenant, Tenant will
be a
“Holdover Tenant”. As a Holdover Tenant, Tenant will occupy the
Leased Premises on a month-to-month basis with a monthly rental rate
equal
to the Rent and other charges applicable at the time of the expiration
of
the Master Lease plus [***] of the sum of such
amounts. Further, Tenant will be subject to all conditions,
provisions, and obligations of this Master Lease as far as the same
are
applicable to a month-to-month
tenancy.
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|
Estoppel
Certificates. Tenant, at Landlord’s request, shall deliver
to Landlord an executed, written, statement addressed to the party
designated in Landlord’s request and identifying Tenant and this Master
Lease and certifying and confirming, in addition to any information
or
confirmation Landlord may reasonably require, the
following:
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A. That
this Master Lease is either unmodified since its execution and in full force
and
effect, or modified since its execution but still in full force and effect
as
modified;
B. That
Landlord either is not in default of any of its obligations under this Master
Lease or is in default, specifying the default;
C. Tenant’s
obligations and restrictions concerning subordination and attornment;
and
D. The
Lease Term, Rent Commencement Date, and Expiration Date as to the Leased
Premises for which the estoppel certificate applies.
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18.3
|
Agent-in-Fact. Tenant’s
failure to provide an estoppel certificate materially complying with
the
Section 18.2, above, is a material breach of this Master Lease through
which, in addition to any other right or remedy Landlord may have
under
this Master Lease, at law, or in equity, Landlord is hereby
irrevocably appointed and authorized as the agent and attorney-in-fact
of
Tenant to execute and deliver any such written statement on Tenant’s
behalf if Tenant fails to do so within seven (7) days after receiving
a
written request from
Landlord.
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CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Article
XIX
Interpretation,
Notices, & Miscellaneous
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19.1
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Severability. If
a court of proper jurisdiction determines that any provision of this
Master Lease, or any application of the provision, is invalid or
unenforceable, the remainder of this Master Lease, or the applications
of
the provision that are not invalid or unenforceable, will remain
in full
force and effect to the fullest extent permitted by
law.
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19.2
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Captions. The
captions and headings used throughout this Master Lease are for
convenience of reference only and do not affect the interpretation
of this
Master Lease.
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19.3
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Merger. This
Master Lease, together with any Attachment A, exhibit, addendum,
amendment, or any other document attached to and incorporated into
this
Master Lease, constitutes the entire agreement between Landlord and
Tenant, a complete allocation of risks between them, and a complete
and
exclusive statement of the terms and conditions of this Master
Lease. This Master Lease is merged into by and supersedes all
prior written or oral agreements, leases, licenses, negotiations,
dealings, and understandings, unless specifically provided otherwise
in
Appendix-1. Except for changes to the Delivery Window and
Delivery Date designated in the applicable Attachment A, no amendment
or
other modification of this Master Lease will be valid or binding
on either
Landlord or Tenant unless it is reduced to writing and signed by
both
Landlord and Tenant.
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19.4
|
Survival. The
following provisions of this Master Lease survive the termination,
for
whatever reason, of this Master Lease: Article XIII, Article
XIV, Article XV, Article XVII, Section 2.4, Section 18.1, and
Appendix-2.
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19.5
|
Third
Party Beneficiaries. Nothing in this Master Lease confers,
or intends to confer, any rights upon any person or entity not a
party to
this Master Lease, except for the Indemnitees identified in Section
13.1B,
above.
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19.6
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Benefit
& Binding Effect. The terms, provisions, and covenants
contained in this Master Lease apply to, inure to the benefit of,
and are
binding on Landlord and Tenant, and their respective heirs, successors,
and assignees.
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19.7
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Fiduciary
Relationship. This Master Lease does not create a fiduciary
relationship between Landlord and Tenant. Any expenditures,
investments, or commitments Tenant makes in reliance on any present
or
future business or lease with Landlord is done at Tenant’s own risk and
without any obligation whatsoever from
Landlord.
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19.8
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No
Obligation. Landlord has no obligation to offer, nor does
the course of performance under this Master Lease create any obligation
on
Landlord to offer, any number of locations for lease to
Tenant. Any locations offered for lease to Tenant in accordance
with this Master Lease are in the sole and absolute discretion of
Landlord. Landlord, in its sole discretion and at any time, may
cease offering locations to Tenant, and this Master Lease will continue
in
full force and effect solely with regard to those Leased Premises
for
which both Landlord and Tenant have signed an Attachment
A. Landlord may lease locations that Landlord might otherwise
offer to Tenant under this Master Lease to any party that Landlord
chooses
including, without limitation, Tenant’s competitors. Tenant
recognizes and agrees that this Master Lease creates no exclusive
rights
in Tenant’s favor.
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TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
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19.9
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Independent
Contractors. Nothing contained in this Master Lease creates
a partnership, joint venture, principal/agent relationship, or any
other
relationship other than that of landlord/tenant between Landlord
and
Tenant.
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|
Notice. Any
notice required by this Master Lease must be in writing and delivered
either by hand; by commercial courier; or by placing notice in the
U.S.
mail, certified mail, return receipt requested, properly addressed
and
with sufficient postage.
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A. Notice
is deemed received on:
(1) Delivery
if by hand;
(2) One
(1) business day (Monday through Friday) after deposit with the commercial
courier, provided deposit is done timely so as to effect next business day
delivery, if by commercial courier; or
(3) Three
(3) business days after placing the notice in the U.S. mail, properly addressed
and with sufficient postage for certified mail, return receipt
requested.
B Notice
intended for Tenant must be sent to the address provided in
Appendix-1.
C. Notice
intended for Landlord must be sent to: Wal-Mart Stores, Inc., Asset Management,
[***], with a copy to: Wal-Mart Stores, Inc., Wal-Mart Stores
Division – Legal, Office of the General Counsel, [***].
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19.11
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Governing
Law. This Master Lease, and any property or tort disputes
between Landlord and Tenant, will be construed and enforced in accordance
with the laws of the State of Arkansas, without regard to the internal
law
of Arkansas regarding conflicts of law. Neither Landlord nor
Tenant may raise in connection therewith, and hereby waive, any defenses
based on venue, inconvenience of forum, or lack of personal jurisdiction,
in any action or suit brought in accordance with the
foregoing.
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19.12
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Jurisdiction
and Venue. For any suit, action, or legal proceeding,
arising from this Master Lease or from any property or tort dispute
between Landlord and Tenant, Landlord and Tenant consent and submit
to the
exclusive jurisdiction and venue of the state courts of Arkansas
situated
in ▇▇▇▇▇▇ County, Arkansas or the federal courts situated in the
Western
District of Arkansas. Landlord and Tenant acknowledge
that they have read and understand this clause and willingly agree
to its
terms.
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19.13
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Attorney’s
Fees. Except as otherwise provided in this Master Lease, if
either party commences an action in a court of law against the other
party
to enforce the terms of this Master Lease, to declare rights under
this
Master Lease, or for any other reason related to this Master Lease,
each
party will pay its own attorney’s fees and costs incurred as a result of
that action.
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[signature
page to follow]
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Signed:
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|||||
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Witness:
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Landlord: Wal-Mart
Stores, Inc.
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Tenant:
__________
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Date
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||||
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Wal-Mart
Stores, Inc.
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|||||
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|||||
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Witness:
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Landlord: Wal-Mart
Stores East, ▇▇
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||||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Date
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||||
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Wal-Mart
Stores East, LP
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|||||
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|||||
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Witness:
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Landlord: Wal-Mart
Stores Texas, ▇▇
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||||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Date
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||||
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Wal-Mart
Stores Texas, LP
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|||||
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|||||
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Witness:
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Landlord: Wal-Mart Louisiana,
LLC
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||||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Date
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||||
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Wal-Mart Louisiana,
LLC
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|||||
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|||||
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Signed:
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|||||
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Witness:
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Tenant: Portrait
Corporation of America, Inc.
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||||
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Signature
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Date
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||||
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Printed
Name
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|||||
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|||||
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Title
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***Confidential
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Appendix-1-36
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
Appendix-1
Basic
Lease Terms
The
following terms supplement the terms and conditions set forth in the body of
the
Master Lease Agreement, to which this Appendix-1 attaches and into which these
Appendix-1 incorporates.
a. During
the Lease Term of the applicable Leased Premises, Tenant shall use the Leased
Premises solely for the purpose of operating a photography studio offering
the
taking and selling of portrait photographs and related products; the
customization of portraits including oil portraits; the taking of passport
and
citizenship photographs; the sale of picture frames [***], from time to time,
sells in the Store; the sale of photographic plaques; the copying and
restoration of old photographs; the sale of portraiture related software and
digital images; and the provision and sale of photographic lamination services,
[***].
b. During
the Lease Term of the applicable Leased Premises and other than as permitted
in
the preceding paragraph, Tenant may not offer any additional services or
products, or change the use of the Leased Premises, without prior written
consent of Landlord’s Home Office Leasing Department, which such consent may be
withheld in Landlord’s sole and exclusive judgment.
c. Commencing
on the actual Rent Commencement Date of the applicable Leased Premises and
continuing until expiration or termination of this Master Lease in its entirety
or as to the applicable Leased Premises, and provided that Tenant is not in
Default (as defined in this Master Lease) as to the applicable Leased Premises,
[***]. Tenant’s rights under this paragraph 1c become null and void,
and Tenant will lose all rights herein, if Tenant ceases to use the applicable
Leased Premises for the Primary Permitted Use of the operation of a photography
studio; if Tenant Defaults (as defined in this Master Lease) as to the
applicable Leased Premises; or if Tenant Transfers (as defined in this Master
Lease) this Master Lease, either in its entirety or as to an applicable Leased
Premises, or its rights or interests in this Master Lease, or sublets all or
any
portion of any Leased Premises Tenant leases under this Master
Lease.
d. If
Landlord breaches paragraph 1c, above, this paragraph 1d governs Tenant’s sole
remedy at law or in equity, and in no event will Landlord be liable to Tenant
for any damages even if actual, compensatory, or consequential.
(1) Tenant,
within [***] days following Tenant’s receipt of any facts giving rise to the
alleged breach, shall notify Landlord, in writing, of the alleged breach
describing with particularity the facts and circumstances giving rise to the
alleged breach and the date of commencement of the alleged breach.
***Confidential
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Appendix-1-37
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
(2) If
Landlord fails to cure the alleged breach within at least [***] days following
Landlord’s receipt of notice in accordance with the preceding paragraph, Tenant
may terminate this Master Lease as to the applicable Leased Premises with at
least [***] days written notice to Landlord stating the date on which Tenant
will vacate the applicable Leased Premises. If Tenant fails to timely
vacate the applicable Leased Premises, Tenant’s notice of termination will be
deemed void; this Master Lease as to the applicable Leased Premises will
continue in full force and effect, and Landlord will be deemed to have cured
any
alleged breach of paragraph 1c, above. Other than the right to seek
specific performance for Landlord’s breach of paragraph 1a, above, Tenant waives
any right it may have available to it at law or in equity for any Claim (as
defined in this Master Lease) resulting from Landlord’s alleged breach of
paragraph 1, above.
e. Despite
the preceding paragraph, the following actions do not constitute a breach of
this Master Lease by Landlord:
(1) Sales,
marketing, and promotions by Landlord or any of Landlord’s affiliates,
subsidiaries, officers, directors, employees, or agents, of any photographic
services or products including, but not limited to, frames, accessories, and
film; and
(2) Sales
of one-hour photography developing products and services and the taking and
sale
of passport pictures by any other tenant in the store whose leases pre-date
this
Master Lease.
f. Tenant
shall not sublet the applicable Leased Premises to a
Sublessee. Tenant shall not permit any business or other operation to
be conducted in the Leased Premises, other than the Permitted Uses designated
in
paragraph 1a, above, which must only be performed by Tenant.
g.
Landlord will use commercially reasonable efforts to include Tenant
on the blueprints for store expansions if Tenant is already leasing space in
the
Store being expanded.
2. Leased
Premises Specifications.
a. Tenant,
at its sole cost and expense, shall install, provide, and maintain all equipment
necessary for the operation of its Permitted Uses, as described in paragraph
1a
above, including, but not limited to, any equipment required by any professional
standards, law, rule, or regulation applicable to Tenant’s
business. To the extent that the installation, provision, or
maintenance of the equipment requires alteration of the Leased Premises that
is
not located in a newly constructed Store, Tenant shall comply with the terms
of
Article II of this Master Lease.
b. If
Landlord terminates a Leased Premises as a result of Store Renovations, Tenant
shall surrender the applicable Leased Premises as required in Section 17.3
of
the Master Lease Agreement and shall remove all property, Trade Fixtures, and
Improvements from the Leased Premises and either return the Leased Premises
to
Landlord in broom clean condition or pay Landlord eight thousand dollars
($8,000).
c. Tenant’s
obligations under this Section 2 are in addition to, and not in lieu of,
Tenant’s obligations to prepare the Leased Premises in accordance with Article
II of this Master Lease.
***Confidential
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Appendix-1-38
Tenant:
__________
3. Hours
of Operation: Monday through Saturday from [***] pm, closed for
lunch from [***]; Sunday from [***], closed for lunch from [***].
Picture Me
As
required by ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇, Tenant shall rebrand its trade name and, in
connection therewith, remove the “Wal-Mart” name from all of Tenant’s signage
and materials no later than January 31, 2008. Until that time, or
such earlier date that Tenant’s right to use the “Wal-Mart” name terminates,
Tenant may conduct its operations under either of the trade names listed above,
provided that any usage of the “Wal-Mart’ name is consistent with the other
requirements of this Master Lease.
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Name
of Tenant:
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Portrait
Corporation of America, Inc.
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Attention:
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C.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
|
Chairman,
President & CEO
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|
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Address:
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▇▇▇
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6. Advisements. [Intentionally Omitted]
7. Covenants,
Representations, and Warranties.
a. Tenant
covenants to promptly inform Landlord of the resignation or termination of
its
Chief Executive Officer, Executive Vice-President of Studio Operations, or
both. Landlord shall have the right to approve, in its sole and
absolute discretion, any successor that Tenant proposes to appoint to any of
such offices. Tenant shall submit to Landlord the resume of any such
proposed successor officer and shall arrange a meeting between such proposed
successor officer and Landlord. Landlord shall use commercially
reasonable efforts to meet with such proposed successor within [***] business
days (Monday through Friday) following its receipt of Tenant’s request and shall
either approve, which such approval may not be unreasonably withheld, or
disapprove of the proposed successor within [***] business days (Monday through
Friday) following such personal meeting.
***Confidential
treatment requested.
Appendix-1-39
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
(1) If
Landlord waives the personal meeting required in the preceding paragraph,
Landlord will base its approval or disapproval of the change on the proposed
replacement’s resume provided to Landlord by Tenant.
(2) Despite
anything to the contrary elsewhere in this Master Lease, Landlord’s approval is
not required with respect to any proposed successor officer if the proposed
successor officer has at least five (5) years experience as the Chief Executive
Officer, President, or Chief Operating Officer of a retail chain that
experienced positive sales and income growth for a minimum of three (3) out
of
the last five (5) years during which the proposed successor officer held such
office, that accrued annual sales of at least [***], and that consists of at
least [***] stores, provided that the proposed successor officer has not been
convicted of a felony nor has been terminated from such a position for poor
performance.
b. Tenant
covenants that in the event of a Change in Control (as defined below), Tenant
shall advise Landlord in advance of the proposed Change in Control, and Landlord
will have five (5) business days (Monday through Friday) to approve, which
such
approval may not be unreasonably withheld, or disapprove of the
Change in Control. In the event Landlord disapproves of the Change in
Control, such Change in Control either may not take place or may take place,
provided that, if the Change of Control takes place, Landlord, at is election,
may either declare a Default of this Master Lease or demand that Tenant close
up
to an additional five hundred (500) locations in addition to the closures
required below. If Landlord exercises its right to demand additional
closures, Tenant will provide Landlord, for Landlord’s approval, a list of
locations Tenant will close along with the proposed schedule for
closings. All locations approved by Landlord to be closed must be
closed within six (6) months following Landlord’s exercise of the above
described right, unless any time within that six (6) months falls between
October 1st of
a year and December 31st of that
same
year. In that case, the six (6) month period described in this
paragraph will be extended by three (3) months.
(1) Despite
the previous paragraph, Landlord’s approval of a Change in Control is not
required if the Change in Control results in the control of Tenant by an
investment company with at least [***] in invested capital that is not invested
in a competitor of either Tenant or Landlord; a company or companies with
consolidated group annual revenues exceeding [***] and with sales and profits
that increased in three (3) out of the five (5) years prior to the Change in
Control; a group of unaffiliated individuals whose collective net
worth exceeds five (5) times their acquisition cost; or any combination of
the
above.
(2) For
purposes of this Section 7, “Change in Control” means the direct or indirect
acquisition, other than as a result of the financial restructuring and chapter
11 proceedings commenced by Tenant on August 31, 2006, of the power to vote
50.1% or more of Tenant’s voting securities.
c. Tenant
shall provide Landlord quarterly financial statements that are prepared by
Tenant, reviewed on a quarterly basis by an independent certified public
accountant, and audited on an annual basis by such independent certified public
accountant. A solvency certificate in which an officer of Tenant
certifies to Landlord that Tenant is solvent and is generally paying its debts
as the debt becomes due must accompany each financial statement.
8. Miscellaneous.
***Confidential
treatment requested.
Appendix-1-40
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
a. Lease
Term.
(1) Despite
anything to the contrary elsewhere in this Master Lease, this Master Lease
will
not be effective unless the form and substance of the order from the presiding
bankruptcy court approving this Master Lease is acceptable to Landlord, in
its
sole and absolute discretion, and such order becomes final and
nonappealable.
(2) Subject
to the preceding paragraph, this Master Lease is effective February 1, 2007
and
continues for three (3) years unless terminated earlier as the result of a
Default (as defined in this Master Lease) or as otherwise permitted under this
Master Lease.
(3) This
Master Lease automatically extends for an additional two (2) years for each
applicable Leased Premises from which Landlord receives from Tenant Base Rent
for the period from July 1, 2008 through June 30, 2009 at a rate equal to or
greater than [***] per square foot, provided that no Default (as defined in
this
Master Lease) has occurred or is continuing.
(4) For
each Leased Premises from which Landlord receives from Tenant Base Rent for
the
period of July 1, 2008 through June 30, 2009 at a rate less than [***] per
square foot, Landlord and Tenant may mutually agree to extend this Master Lease
for two (2) years by written agreement executed no later than [***], provided
that no Default (as defined in this Master Lease) has occurred and is
continuing.
(5) If
this Master Lease is not extended for any reason as to any Leased Premises,
Tenant will close the applicable Leased Premises and deliver such locations
to
Landlord in a broom clean condition and consistent with all other obligations
of
Tenant under this Master Lease on January 31, 2010 or such earlier date as
may
be agreed to by Landlord and Tenant.
b. Rent. Provided
Tenant is not in Default (as defined in this Master Lease) on its Rent
obligations, Base Rent, which will accrue daily for the term of this Master
Lease and any renewal thereof, is:
(1) From
June 1, 2006 through January 31, 2008, [***] of the monthly Gross Sales (as
defined below). Tenant shall pay Landlord the Base Rent due by the
tenth (10th)
calendar day of the third month following the month in which such Gross Sales
occurred. For example, the monthly Base Rent due for the period
ending June 30, 2006 is due on September 10, 2006.
(2) From
February 1, 2008 through January 31, 2009, [***] of the monthly Gross Sales (as
defined below). Tenant shall pay Landlord Base Rent due by the tenth
(10th) calendar
day of the second month following the month in which such Gross Sales
occurred. For example, the monthly Base Rent due for the period
ending February 29, 2008 is due on April 10, 2008.
(3) From
February 1, 2009 through the end of the Lease Term, including any renewal,
[***]
of the monthly Gross Sales (as defined below). Tenant shall pay
Landlord the Base Rent due by the tenth (10th) calendar
day of
the month following the month in which such Gross Sales occurred. For
example, the monthly Base Rent due for the period ending February 28, 2009
is
due on March 10, 2009.
(4) In
the event that Tenant fails to pay any amount due under this Master Lease within
five (5) days of the date such amount is due, Rent for the full term of this
Master Lease will automatically reset to
***Confidential
treatment requested.
Appendix-1-41
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
[***]
of
the monthly Gross Sales, with any retroactive arrearages due and payable
immediately.
c. Rebranding.
(1) Tenant
and Landlord agree that Tenant’s right to use the “Wal-Mart” name, which is
Landlord’s trade name, constitutes a non-exclusive trademark license and,
therefore, is a personal right to the Tenant, which may not be assigned under
applicable law including, without limitation, state and federal trademark law,
without the prior, written consent of Landlord.
(2) Tenant
shall remove the “Wal-Mart” name from all Leased Premises and studios including,
without limitation, any signage and promotional materials and activity and
cease
using the “Wal-Mart” name no later than January 31, 2008, except as permitted
elsewhere in this Master Lease.
(3) [***].
d. Rebranding
Escrow. [***]. Tenant shall deposit the Rebranding
Escrow within three (3) business days of the date on which the order from the
presiding bankruptcy court approving this Master Lease becomes final and
nonappealable. Tenant may only draw on the Rebranding Escrow to cover
the costs of the rebranding required in paragraph 8c, above. For
clarification, the Rebranding Escrow applies to a total of [***] installments
of
Rent, which have payments with due dates from August 10, 2006 through April
10,
2007.
(1) Tenant
shall deposit the Rebranding Escrow due for subsequent months no later than
the
[***)] calendar day of each such month.
(2) Any
balance of the Rebranding Escrow remaining in the escrow account after [***]
must be paid to Landlord as additional Rent within ________ business days
(Monday through Friday). If Tenant fails to pay Landlord the
above-described balance of the Rebranding Escrow, Landlord may withdraw and
retain as additional rent all amounts then remaining or thereafter deposited
into the escrow account. Landlord’s withdrawal of such funds does not
in any way excuse Tenant’s obligation to complete the Rebranding as required in
paragraph 8c, above.
(3) Tenant
shall provide Landlord with a monthly accounting of deposits into and
disbursements from the escrow account in a form acceptable to Landlord, in
its
sole and absolute discretion.
e. Store
Closings. For purposes of this Section, “Fiscal Year” means
February 1st of
a given year through January 31st of the
following
year.
(1) Tenant,
no later than July 31, 2007, shall close the five hundred (500) Leased Premises
designated in Exhibit ______, which is attached to and incorporated into this
Master Lease.
(2) Starting
with the Fiscal Year ending [***] and continuing through the Lease Term of
this
Master Lease, including any extension, until the first Fiscal Year in which
Tenant achieves
***Confidential
treatment requested.
Appendix-1-42
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
positive
comparable sales in the Leased Premises, Tenant shall close an additional five
hundred (500) Leased Premises every Fiscal Year in which either Landlord’s total
US comparable stores sales are flat or positive and Tenant’s comparable stores
sales for the same Fiscal Year are negative, or Landlord’s total US comparable
stores sales are negative and Tenant’s comparable stores sales for that same
Fiscal Year are not positive and are more than fifty (50) basis points of
Landlord’s comparable stores sales. After the first year that Tenant
achieves positive comparable sales, Tenant is no longer obligated to close
Leased Premises as described in the preceding sentence.
(3) Tenant
shall submit its total sales and, if applicable, will submit to Landlord for
approval a list of Leased Premises to be closed, along with a schedule of
closings, by February 10th of the
subsequent
Fiscal Year or no later than five (5) days after Landlord publishes its US
sales
for that Fiscal Year. All such Leased Premises closings must be
completed no later than July 31st of the
subsequent
Fiscal Year. Approval of Leased Premises Tenant proposes to close in
accordance with this Section 8e will be in Landlord’s sole and absolute
discretion.
(4) All
Leased Premises closed in accordance with this Section 8e must be closed in
accordance with Section 17.3 of the Master Lease Agreement, except that Tenant
shall leave each Leased Premises closed in accordance with this Section 8e
in
broom clean condition.
f.
Additional Events of Default. In addition to the Events of Default
designated elsewhere in this Master Lease, an Event of Default occurs
if:
(1) Tenant
commences or involuntarily becomes the subject of any case filed under chapter
7
or chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), or
any similar insolvency proceeding. If Tenant so Defaults on this
Master Lease, Tenant will vacate the Leased Premises as soon after the above
described filing as possible but no later than the expiration of the statutory
period under section 365 of the Bankruptcy Code for assumption of leases unless
this Master Lease has been assumed by that date pursuant to an order entered
upon proper motion with appropriate notice and opportunity for
parties-in-interest including, without limitation, Landlord, to respond to
or
object to such motion. In light of the Intent (as described below),
the statutory period set forth in section 365(d)(4)(A) of the Bankruptcy Code
for assumption of leases will not extend for any reason including, without
limitation, pending the outcome of any related litigation or appeal, unless
Landlord consents in writing.
(2) Tenant
defaults on any agreement with a lender with respect to any debt facility and:
(i) as a result of such default, the debt facility is accelerated; (ii) Tenant
fails to cure such default; or (iii) the lender, within [***] days after the
occurrence of the default, refuses to permanently waive the
default. Tenant shall notify Landlord of any notice of default from
any lender with respect to any debt facility promptly after receiving such
notice.
g. Additional
Remedies. In addition to Landlord’s rights and remedies available
to it elsewhere in this Master Lease, at law, or in equity, if Tenant Defaults
on this Master Lease and in light of the Intent of the parties as described
below, Tenant waives the automatic stay or any similar provision, if applicable,
and authorizes Landlord to exercise any and all remedies available to Landlord
without need for notice or any further proceedings including, without
limitation, court proceedings, upon the earlier to occur of either the
termination of this Master Lease or the expiration of the statutory period
described in paragraph 8f(1), above.
***Confidential
treatment requested.
Appendix-1-43
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
h. Control. To
the extent Article X of the Master Lease Agreement conflicts with this paragraph
8h, this paragraph 8h governs. Tenant shall obtain Landlord’s consent
prior to Tenant’s causing or permitting, within any twelve (12) month period,
the Transfer of more than either an aggregate of twenty five per cent (25%)
of
Tenant’s voting shares or twenty five per cent (25%) of the value of Tenant’s
unencumbered assets as of the date of the Transfer. If
Landlord does not consent, Landlord, in its sole discretion, may declare a
Default of this Master Lease.
(1) If
Landlord consents to the proposed Transfer of Tenant’s voting shares, as
described in the preceding sentence, or of Tenant’s unencumbered assets, as
described in the preceding sentence, Landlord will notify Tenant of its consent
within five (5) business days after Landlord receives Tenant’s written notice of
the proposed Transfer. Landlord may not unreasonably withhold its
consent.
(2) Despite
the foregoing, Landlord's consent will not be required under this Master Lease
prior to the trading of Tenant's shares on the public securities markets, except
that Landlord's consent will be required prior to additional purchases by any
person or group who is or becomes the beneficial owner of 25% or more of
Tenant's voting shares.
(3) Additionally,
Landlord’s consent is not required under this Master Lease for any Transfer of
Tenant’s unencumbered assets that is for fair value and that does not diminish
Tenant’s ability to operate its business in the Leased Premises in accordance
with this Master Lease.
(4) For
the avoidance of doubt, Tenant does not have the right to Transfer (as defined
in this Master Lease) or assign its rights under all or any portion of this
Master Lease to a third party in any manner or under any
circumstances. As noted in the Intent (described below), the nature
of the relationship between the parties is unique and the nature of the Leased
Premises is unique. Tenant and Landlord agree that this Master Lease
qualifies as, and is treated as, a “personal services contract,” as such term is
used in Section 365 of the Bankruptcy Code.
i.
Letter of Credit. Tenant shall provide Landlord with an
irrevocable standby letter of credit in the amount of [***] drawable by Landlord
upon any failure by or inability of Tenant to timely meet its obligations under
this Master Lease or to Tenant’s customers including, without limitation,
obligations resulting from the filing of a subsequent bankruptcy proceeding
by
or against Tenant or the shutdown, not previously authorized by Landlord, by
Tenant of operations at any Leased Premises. Tenant shall maintain
this letter of credit on an evergreen basis during the term of this Master
Lease, including any extension of this Master Lease. Landlord shall
use the proceeds from this letter of credit as it determines in its sole and
absolute discretion including, without limitation, to refund customer deposits;
to cover other transitional costs including, without limitation, reletting
the
Leased Premises; and to acquit any other pending obligations of
Tenant.
j.
Audit. For purposes of this Master Lease, “Gross Sales” means the
aggregate selling price of all merchandise sold or delivered at or from any
part
of the Leased Premises and the charges for all services sold or performed at
or
from any part of the Leased Premises or at any other location if the merchandise
is taken from the Leased Premises or the order for services taken at the Leased
Premises including sales and charges for cash or credit and credit sales
regardless of collections. “Gross Sales” excludes refunds made by
Tenant to its customers for merchandise originally included in Gross Sales
but
returned to
***Confidential
treatment requested.
Appendix-1-44
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
Tenant;
exchanges of merchandise between stores of Tenant where such exchanges are
made
solely for the convenient operation of Tenant’s business; and the amount of any
city, country, or state sales tax on sales paid to a taxing authority by Tenant,
but not by any vendor of Tenant. A sale is made in the Leased
Premises if the merchandise or services are ordered from the Leased Premises
in
person, via telephone facsimile, internet, or other electronic means, or filled
at the Leased Premises, or delivered from the Leased Premises.
(1)
Landlord has the right to inspect and audit all books and records
and other papers and files of Tenant relating to Gross Sales. Any
such inspection or audit will be conducted during Tenant’s regular business
hours, and if Landlord so requests, Tenant will produce the appropriate books
and records and other papers and files relating to Gross Sales.
(2)
If any audit conducted in accordance with this paragraph 8j discovers
evidence of under-reporting of Gross Sales by an amount equal to or greater
than
[***] or more in any given month, or by [***] or more in any given two months,
Tenant will be in Default of this Master Lease.
k. Intent. Landlord
and Tenant agree that they have a unique relationship and that the terms of
this
Master Lease have been negotiated and drafted based on the advice and with
the
assistance of experienced legal counsel with the express intention of reflecting
that relationship (the “Intent”). Each provision of this Master Lease
has been drafted and incorporated herein in light of and in furtherance of
the
Intent and in light of each of the following acknowledgements by
Tenant:
(1) The
unique nature of Landlord’s operations and reputation as one of the largest
operators of discount retail stores dedicated to customer satisfaction and
prompt, quality customer service featuring a broad assortment of quality
merchandise at low, competitive prices;
(2) The
unique circumstances of maintaining Tenant’s operations within Landlord’s Stores
and the concomitant obligations of Tenant to observe each and every term of
this
Master Lease in order to further Landlord’s operations and reputation and not
to, in any way, impair the shopping experience of Landlord’s
customers;
(3) The
risk to Landlord’s operations and reputation of Tenant’s financial problems and
uncertainties created during Tenant’s Chapter 11 proceedings (pending on the
date of this Master Lease);
(4) The
propriety and importance of protecting Landlord’s unique Store space,
operations, and reputation in the vent of a subsequent Chapter 11 or other
insolvency event of Tenant;
(5) That
Landlord is a “shopping center” and that this Master Lease is a “shopping center
lease,” as those terms are defined and used in section 365 of chapter 11 of the
Bankruptcy Code;
(6) That
Tenant is not an affiliate or agent of, or in any way controlled by or under
the
control of Landlord; and
(7) The
reliance of Landlord on Tenant’s representations that Tenant will abide by the
terms of this Master Lease including, without limitation, the limited Permitted
Use of the Leased Premises, as described in paragraph 1a, above, and the
prohibition on assignment and transfer.
***Confidential
treatment requested.
Appendix-1-45
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
l.
Not Severable. Whether or not certain of the terms of this
Master Lease are specific to or can be applied to individual Leased Premises,
the entire Master Lease including, without limitation, the Lease Term and Rent,
was negotiated and agreed upon based on the integrated nature of the entire
agreement and the Intent of the parties is to create an integrated
agreement. The parties acknowledge and aver that this Master Lease
and any of the entitlements hereunder would make no economic sense on a partial
or several basis. Accordingly, in view of the foregoing and of the
Intent, Tenant agrees that this Master Lease and the Leased Premises hereunder
cannot be severed or partially assumed in any manner without the express written
consent of Landlord. Tenant waives any and all rights, if any, to
seek to sever or partially assume any portion of this Master Lease pursuant
to
section 365 of the Bankruptcy Code or otherwise.
m. Despite
anything to the contrary is Section 19.13 of the Master Lease Agreement, Tenant
shall pay all reasonable attorney’s fees and expenses incurred by Landlord by
reason of any Default by Tenant and the enforcement of any remedies in
connection with or related to such Default. Additionally, Tenant
agrees that in the event of a subsequent chapter 11, chapter 7, or similar
proceeding, any attorney’s fees or expenses incurred following the filing of the
petition for relief, to the extent allowed under applicable state law, are
recoverable by Landlord as a pecuniary loss. Therefore, any such
attorney’s fees or expenses must be paid by Tenant as a prerequisite to the
assumption of this Master Lease pursuant to section 365 of the Bankruptcy Code
or otherwise.
n. The
Master License Agreement entered into by Tenant and Landlord on April 4, 2002
(“License Agreement”) is null and void and is superseded by this Master
Lease. All locations licensed under that License Agreement are hereby
Leased Premises under this Master Lease and subject to the terms and conditions
of this Master Lease. Landlord and Tenant may execute either a single
Attachment A listing all locations licensed under the License Agreement bringing
those locations under this Master Lease or execute individual Attachment As
for
each location.
o. This
Appendix-1 is attached to and incorporated into the Master Lease as part of
the
entire agreement between Landlord and Tenant, as set forth in Section 19.3
of
the Master Lease Agreement. All capitalized terms used in this
Appendix-1 have the meanings set forth in this Master Lease, unless otherwise
specifically stated in this Appendix-1. IN
THE EVENT OF CONFLICT BETWEEN THE MASTER LEASE AGREEMENT AND ANY OTHER DOCUMENT
ON THE SUBJECT MATTERS SET FORTH IN THIS APPENDIX-1, THE TERMS OF THIS
APPENDIX-1 GOVERN AND CONTROL.
[signature
page to follow]
***Confidential
treatment requested.
Appendix-1-46
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
Signed:
|
Witness:
|
Landlord: Wal-Mart
Stores, Inc.
|
||||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Date
|
||||
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Wal-Mart
Stores, Inc.
|
|||||
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|
|||||
|
Witness:
|
Landlord: Wal-Mart
Stores East, ▇▇
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||||
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|||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Date
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||||
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Wal-Mart
Stores East, LP
|
|||||
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|||||
|
Witness:
|
Landlord: Wal-Mart
Stores Texas, ▇▇
|
||||
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|||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Date
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||||
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Wal-Mart
Stores Texas, LP
|
|||||
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|
|||||
|
Witness:
|
Landlord: Wal-Mart Louisiana,
LLC
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||||
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|||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Date
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||||
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Wal-Mart Louisiana,
LLC
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|||||
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|||||
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Signed:
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|||||
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Witness:
|
Tenant: Portrait
Corporation of America, Inc.
|
||||
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Signature
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Date
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||||
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||||
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Printed
Name
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|||||
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Title
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|||||
***Confidential
treatment requested.
Appendix-1-47
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
Appendix-2
- Insurance
Tenant
shall procure and maintain, in
accordance with the Master Lease, the “primary” insurance policies described
below in accordance with the below conditions.
1. Worker’s
Compensation insurance with statutory limits, or if no statutory limits exist,
with minimum limits of [***] per occurrence, and Employer’s Liability coverage
with minimum limits of [***], for each employee for bodily injury by accident
and for each employee for bodily injury by disease. Tenant shall
cause Insurer to issue an endorsement providing stopgap insurance in
monopolistic states in which a Leased Premises under this Master Lease may
be
located.
2. Commercial
General Liability insurance with a [***] minimum limit per occurrence for each
Leased Premises leased under the Master Lease or with fresh aggregate limits
for
each Leased Premises leased under the Master Lease.
a. The
Commercial General Liability policy required under this Paragraph 2 should
contain neither exclusion for contractual liability assumed by Tenant in a
lease
nor any Absolute Pollution exclusion, unless these coverages are provided by
a
separate policy with minimum limits equal to the Commercial General Liability
policy limits required by this Paragraph 2.
b. Any
policy obtained to satisfy the obligations of this Paragraph 2 must list as
Additional Insureds the parties described below in Paragraph 4.
c. Tenant
shall submit to Landlord no later than thirty (30) days after the actual Rent
Commencement Date, Certificates of Insurance and endorsements evidencing
Tenant’s compliance with this Paragraph 2.
3. Tenant
may satisfy the minimum limits required in Paragraphs 1 and 2, above, by
procuring and maintaining, in accordance with Article XIV of the Master Lease,
Umbrella/Excess Liability insurance on an umbrella basis, in excess over, and
no
less broad than the primary liability coverage; with the same inception and
expiration dates as the primary liability coverage it is in excess of; with
minimum limits necessary to satisfy the required primary minimum limits; and
which “drop down” for any exhausted aggregate limits of the primary liability
coverage. Tenant shall cause Insurer to issue an endorsement to any
policy Tenant procures in satisfaction of its obligations in this paragraph
providing fresh per occurrence limits or fresh aggregate limits for each Leased
Premises leased under this Master Lease and listing as Additional Insured the
parties described below in Paragraph 4.
4. Additional
Insureds are Wal-Mart Stores, Inc., its Subsidiaries and its Affiliates, and
the
directors, officers, shareholders, employees, agents, and representatives,
and
the respective successors and assigns of each, and any party Landlord has a
contractual obligation to indemnify for Claims in connection with the Store
or
the Leased Premises.
5. This
Appendix-2 attaches to and incorporates into the Master Lease Agreement as
part
of the entire agreement between Landlord and Tenant, as set forth in Section
19.3 of the Master Lease
***Confidential
treatment requested.
Appendix-1-48
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
Agreement. All
capitalized terms used in this Appendix-2 have the meanings set forth in this
Master Lease, unless otherwise specifically stated in this
Appendix-2. In the event of conflict between the Master Lease
Agreement and any other document on the subject matters set forth in this
Appendix-2, the terms of this Appendix-2 control.
[signature
page to follow]
***Confidential
treatment requested.
Appendix-2-49
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED WITH
BRACKETS.
Tenant:
__________
Signed:
|
Witness:
|
Landlord: Wal-Mart
Stores, Inc.
|
||||
|
|
|
|
|||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Date
|
||||
|
Wal-Mart
Stores, Inc.
|
|||||
|
|
|||||
|
Witness:
|
Landlord: Wal-Mart
Stores East, ▇▇
|
||||
|
|
|
|
|||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Date
|
||||
|
Wal-Mart
Stores East, LP
|
|||||
|
|
|||||
|
Witness:
|
Landlord: Wal-Mart
Stores Texas, ▇▇
|
||||
|
|
|
|
|||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Date
|
||||
|
Wal-Mart
Stores Texas, LP
|
|||||
|
|
|||||
|
Witness:
|
Landlord: Wal-Mart Louisiana,
LLC
|
||||
|
|
|
|
|||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Date
|
||||
|
Wal-Mart Louisiana,
LLC
|
|||||
|
|
|||||
|
Signed:
|
|||||
|
Witness:
|
Tenant: Portrait
Corporation of America, Inc.
|
||||
|
|
|
|
|||
|
Signature
|
Date
|
||||
|
|
|
||||
|
Printed
Name
|
|||||
|
|
|||||
|
Title
|
|||||
Appendix-2-50