Exhibit 10.0
FIRST AMENDMENT TO LEASE AGREEMENT
NAME CHANGE
From
▇▇▇▇ ▇▇▇▇ d/b/a Accurate Business Forms, Inc.
To
800 America, Inc.
Valley Shopping Center
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
January 10, 2000
This First Amendment to the Lease Agreement effective this 10th day of
January, 2000 by ▇▇▇▇ ▇▇▇▇ d/b/a Accurate Business Forms, Inc. ("Tenant") and
Buttonwood Investments, Inc. ("Landlord") is hereby made a part thereof of the
Lease Agreement dated November 3, 1999 ("Lease") by and between Landlord and
Tenant.
WHERE AS, Landlord and Tenant entered into the Lease for certain
premises located at ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇ consisting of
approximately 1,050 Square Feet ("Premises") in the building commonly known as
the Valley Shopping Center, Mt. Juliet, Tennessee ("Shopping Center"); and
WHEREAS, Tenant desires to have the Tenant name changed; and
WHERE AS, unless specifically defined herein, the terms used in the
First Amendment to Lease Agreement will have the meanings defined in the Lease.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, and for other mutual benefits as noted
herein Buttonwood Investments, Inc., as Landlord and ▇▇▇▇ ▇▇▇▇ d/b/a Accurate
Business Forms, Inc., as Tenant wish to amend said Lease as follows:
1. The existing Tenant name "▇▇▇▇ ▇▇▇▇ d/b/a Accurage Business Forms,
Inc." shall be deleted from the Lease and replaced as follows:
Tenant Name. Hereinafter, 800 America, Inc. shall be referred to as "Tenant".
All other terms and conditions as originally outlined in the Lease dated
November 3, 2000 shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, have executed this Agreement in
triplicate on the date and year first above written.
LANDLORD:
BUTTONWOOD INVESTMENTS, INC.
a Texas Corporation
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
TENANT:
800 AMERICA, INC.
By:
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▇▇▇▇ ▇▇▇▇
Its:
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LEASE
THIS INDENTURE OF LEASE (the "Lease"), entered into this 3rd day of
November, 1999 by and between Buttonwood Investments, Inc., a Texas corporation,
hereinafter referred to as "Landlord" and ▇▇▇▇ ▇▇▇▇ d/b/a Accurate Business
Forms hereinafter referred to as "Tenant."
WITNESSETH:
In consideration of the obligation of Tenant to pay rent as herein
provided and in consideration of the other terms, covenants, and conditions
herein, Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord,
the Premises, as defined in Section 1.2.
TO HAVE AND TO HOLD the Premises for the term, defined in Section 1.6.
ARTICLE I
DEFINITIONS
In addition to other terms which are elsewhere defined in this Lease,
the following terms when used in this Lease shall have the meanings set forth in
this Article 1, and only such meanings, unless such meanings are expressly
limited or expanded elsewhere herein:
1.1 SHOPPING CENTER: (a) The land described in Exhibit "A" attached
hereto and made a part hereof (b) such contiguous land as Landlord may from time
to time designate by notice to Tenant in writing as being included in Shopping
Center; (c) the buildings and improvements now or hereafter constructed on such
land substantially in accordance with Exhibits "B" and "C," attached hereto and
made a part hereof, together with all alterations and additions thereto; and (d)
such additional improvements as may be constructed on such land after the Rent
Commencement Date. Landlord reserves the right to change the number and location
of buildings, building dimensions, and the Common Areas, provided that
reasonable access to the Premises and the parking facilities provided within the
Shopping Center shall not be materially impaired.
1.2 That portion of Shopping Center designated on the Site Plan, which
is Exhibit "B" hereto, and hailing a mailing address of ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇,
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The Premises are deemed to contain approximately 1,050
square feet of Gross Rentable Area, being approximately 16.5 feet of frontage
and approximately 28.75 feet of depth extending to the center line of the party
walls and to the exterior faces of all other walls, but reserving an excepting
to Landlord the use of the roof and exterior walls (other than storefronts) and
the right to install, maintain, use, repair and replace pipes, ducts, conduits,
wires and appurtenant fixtures, leading through the Premises in locations that
will not materially interfere with Tenant's use thereof.
1.3 GROSS RENTABLE AREA: Floor area designed for tenant occupancy and
exclusive use, measured from the exterior face of outside walls and storefronts
and from the center of party walls.
1.4 RENT COMMENCMENT DATE: January 1, 2000.
1.5 READY FOR OCCUPANCY: When Landlord's Work on the Premises as
described in Exhibit "C" has been substantially completed except for items
necessarily awaiting performance of Tenant's Work or minor finishing operations.
1.6 LEASE TERM OR TERM: The period of time commencing with the date of
this Lease and terminating at midnight on the last day of the month in which
falls the date that is 36 months after the Rent Commence Date.
1.7 MINIMUM GUARANTEED RENT: From the Rent Commencement Date through
the First Lease Year as defined below in Section 1.8 the Minimum Guaranteed Rent
shall be Six Hundred Eighty-two and 50/100 Dollars ($682.50) per month.
Effective on January 1 of each subsequent Lease Year, the amount of Minimum
Guaranteed Rent shall be increased by four percent (4%) as follows:
January 1, 2001 through December 31, 2001 $709.80/Month
January 1, 2002 through December 31, 2002 $738.19/Month
1.8 LEASE YEAR: For the purpose of this Lease the term "Lease Year" as
used herein shall mean and include the period of twelve (12) calendar months
beginning on the first month of the term of this lease and on each anniversary
of said day. In the event the monthly, payments commence on a day other than the
first day of a calendar month, then for the purposes of this Lease, the first
Lease Year of the, term hereof shall be enlarged so as to include in addition to
said period of twelve (12) months, the sales for, the fractional. month of the
term hereof that immediately precedes the first full calendar, month of, the.
term hereof and each subsequent Lease Year shall begin on the first day of the
month next following the anniversary of the first day of the Lease Term.
1.9 ADVANCE DEPOSIT: $ 791.88, which shall be applied against the
Minimum Guaranteed Rent payments of $682.50 and common area maintenance,
property tax and insurance estimates of $109.38 first coming due for the month
of January 2000.
1.10 SECURITY DEPOSIT, $ 682.50
1.11 PERCENTAGE RENT RATE: N/A percent N/A %)
1.12 TENANT'S GROSS SALES: Defined in Section 3.4.-- N/A
1.13 TENANT'S TRADE NAME: Accurate Business Forms
1.14 USE OF PREMISES: The Premises may be used only for general office.
1.15 TENANT'S MAILING ADDRESS: ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇.-
▇▇ ▇▇▇▇▇ - or other such address as may from time to time be, designated by
Tenant in a written notice to Landlord.
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1.16 LANDLORD'S MAILING ADDRESS: Buttonwood Inc., c/o First Management
Services; Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CPM(R), Director; ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇; ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other address as may from time to time be
designated by Landlord in a written notice to Tenant.
1.17 BROKER: First Management Services
1.18 COMMON AREAS: Those areas of the Shopping Center that are from
time to time open for joint use by the tenants of the Shopping Center or by the
public, including without limiting the generality of the foregoing, all parking.
areas, driveways, truckways, delivery passages, walkways, concourses, malls,
planted areas, landscaped areas, public restrooms, and common truck loading and
receiving areas that are not leased to or reserved for individual tenants and
subject to any other rights of individual tenants provided in their lease.
1.19 CONSUMER PRICE INDEX: The Consumer Price Index established by the
Bureau of Labor Statistics of the United States Department of Labor entitled
"Revised Consumer Price Index for All Urban Consumers, United States City
Average, All Items, (1967=100)" or, in the event that said index is no longer
provided by said Bureau of Labor Statistics, the available index that most
accurately and complete replaces said index as selected by Landlord.
1.20 LIABILITY INSURANCE LIMITS: (a) $1,000,000 with respect to
injuries to or death of any one person, $1,000,000 with respect to any one
occurrence, and $200,000 with respect to property damage, or (b) a combined
single limit of $2,000,000.
1.21 LANDLORDS WORK: Those items set forth in Exhibit "C" to be
performed by Landlord.
1.22 TENANT'S WORK: Those items set forth in Exhibit "C" to be
performed by Tenant.
ARTICLE 2
CONSTRUCTION AND ACCEPTANCE OF PREMISES
o Landlord agrees that it will construct those buildings and improvements
shown in Exhibit "B" which will contain the Premises as designated in
Exhibit "B" and with respect to the Premises will complete Landlord's Work
as defined in Exhibit " C," with such minor variations as Landlord may deem
advisable. Tenant shall have no right to enter or occupy the Premises until
the Premises are Ready for Occupancy. If Landlord shall for any reason fail
to complete that part of Landlord's Work that is required in the Premises
prior to the Scheduled Completion Date, Landlord shall not be deemed to be
in default hereunder or otherwise liable for damages to Tenant nor shall
the Term or any provision of this Lease be affected.
o Tenant agrees to submit to Landlord within thirty (30) days after the date
of this Lease, plans and specifications in such detail as Landlord may
reasonably request covering Tenant's Work as specified in Exhibit "C, " and
any other work that Tenant proposes to do in the Premises. Such plans and
specifications shall comply with all requirements set forth in Exhibit "C."
Tenant shall not commence any work in the Premises until Landlord has
approved such plans and specifications in writing, which approval shall not
be unreasonably withheld or delayed.
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o When the Premises are Ready for Occupancy, Tenant agrees to accept
possession thereof and to proceed with due diligence to perform the work
described in such plans and specifications that have been approved by
Landlord, and to install its fixtures, furniture and equipment in the
Premises. By occupying the Premises, Tenant shall be deemed to have
acknowledged that the Landlord has complied with all of its covenants and
obligations with respect to the construction of the Premises, except for
defects in Landlord's Work that are latent at the time the Premises are
occupied. In the event of any dispute concerning work performed or required
to be performed in the Premises by Landlord or Tenant, the matter in
dispute shall be submitted to Landlord's architect for determination and
his certificate with respect thereto shall be binding upon Landlord and
Tenant.
(a) Tenant agrees to open the Premises to the public for business
within thirty (30) days after the Premises are Ready for Occupancy.
(b) If Tenant fails to open the Premises for business fully fixtured,
stock and staffed on the Rent Commencement Date, then, unless such delay is
caused or occasioned by Landlord, the Landlord shall have, in addition to any
and all remedies provided herein the right at its option to collect rent at a
rate equal to 15% of the daily rate of the Minimum Guaranteed Rent for each and
every day that Tenant shall fail to commence to do business as herein provided;
said rent shall be in addition to the Minimum Guaranteed Rent and shall be
deemed to be in lieu of any percentage rent that might have been earned during
such period of the Tenant's failure to open.
o Tenant shall execute and deliver to Landlord at the expiration or
termination of this Lease, on Landlord's request, a quitclaim deed to the
Premises in recordable form, designating Landlord as the grantee, and
Tenant hereby irrevocably appoints Landlord, its successors and assigns, as
the attorney in fact of Tenant to execute, seal and deliver such quitclaim
deed on behalf of Tenant should Tenant refuse or fail to do so within ten
(10) days after Landlord shall have given notice to Tenant requesting the
execution, sealing and delivery of such quitclaim deed.
o Landlord may, from time to time, do any one or more of the following with
respect to any and all improvements, including without limitation,
buildings and the Common Areas then existing in the Shopping Center (a)
construct alterations therein; (b) construct additions thereto; (c)
construct additional stories thereon; (d) construct additional buildings,
free-standing or connected to then-existing buildings; (e) construct deck
or elevated parking facilities free-standing or connected to then-existing
buildings; or (f) rearrange, build upon or eliminate any Common Areas,
provided that in no event shall there be provided less than the minimum
parking facilities as set forth in Section 5.1 hereof.
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ARTICLE 3
RENT
1. Rent and other charges due and payable hereunder shall accrue
hereunder from the Rent Commencement Date until the termination: of this Lease
and shall be payable at the following address: c/o First Management Services,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other
address as Landlord shall direct in writing.
2. Tenant shall pay to Landlord the Minimum Guaranteed Rent in twelve
(12) equal monthly installments. The first such monthly installment shall be due
and payable with execution of this Lease and a like installment, subject to
increases as specified in Section 1.7, shall be due and payable without notice
on or before the first day of each succeeding calendar month during the Term.
The covenant of Tenant to pay all rents hereunder is and shall be deemed a
separate and independent covenant and Tenant shall have no right of deduction or
setoff whatsoever.
3. The term Tenant's Gross Sales as used herein, shall be deemed to
mean the gross proceeds from business done in or from the Premises, including
without limiting the generality of the foregoing, the entire sales price of
merchandise, (including gift and merchandise certificates) uncollected or
uncollectible: credit amounts. Tenant's Gross Sales shall not be deemed to
include: (a) any sums collected from customers and paid by Tenant directly to
the governmental authority or to a member of the Federal Reserve Bank System for
the benefit of the government authority; (b) the exchange of merchandise with
other stores of Tenant, if such exchange is made solely for the convenient
operation of the business of Tenant and not for the purpose of consummating a
sale which was made on or from the Premises and if such exchange of merchandise
is not for the purpose of depriving Landlord of the benefit of a sale that
otherwise would be on or from the Premises; (c) the amount of returns to
suppliers or manufacturers; (d) the amount of any cash or credit refund made
upon any sale if the merchandise sold, or some part thereof, is returned by
Tenant's customer and accepted by Tenant; nor (e) sales of Tenant's fixtures not
in the ordinary course of Tenant's business. For purpose of this Section 3.4,
the term "Tenant" shall include any of the Tenant's subtenants, concessionaires
and licensees.
4. The Security Deposit shall be held by Landlord without liability for
interest and as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it is expressly understood that such deposit shall
not constitute any advance payment of rent or a measure of Landlord's damages in
case of default by Tenant. Upon the occurrence of any Event or Default under
this lease, Landlord may, but shall not be obligated to, from time to time,
without prejudice: to any other remedy, use all or any portion of the Security
Deposit to the extent Landlord deems necessary or appropriate to pay any amount
owed by Tenant to Landlord. Following, any such application of the Security
Deposit, Tenant shall pay to Landlord on demand the amount so applied in order
to restore the Security Deposit to its original amount. If Tenant is not then in
default hereunder, any remaining balance of the Security Deposit shall be
returned by Landlord to Tenant upon termination of this Lease. If Landlord
transfers its interest in the Premises during the Lease Term, Landlord may
assign the Security Deposit to the transferee and, upon assumption by said
transferee of liability to Tenant for said Security Deposit, said transferring
Landlord shall have no, farther liability to Tenant with respect to the Security
Deposit.
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ARTICLE 4
SALES REPORTS AND RECORDS
1. Every six months, Tenant shall prepare and deliver to Landlord a
statement of Tenant's Gross Sales (said statement may be in the form of Tenant's
State Sales Use Tax Form if applicable) during the preceding calendar month. In
addition, within sixty (60) days after the expiration of the Lease Year, Tenant
shall prepare and deliver to Landlord a statement of Tenant's Gross Sales during
such Lease Year certified to be correct by a Certified Public Accountant, if
required by Landlord.
2. Tenant shall keep and shall cause each licensee or concessionaire of
Tenant to keep in the Premises or at some other location acceptable to Landlord,
an accurate set of books reflecting Tenant's Gross Sales and with respect
thereto shall preserve all cash register tapes, sales slips, order records,
records of transactions with concessionaires and licensees, shipping ,records,
records of merchandise returned, federal state and city tax returns, banking
records and other such records as may be needed for an effective audit of
Tenant's Gross Sales. All such books and records shall be retained for a period
of at least twenty-four (24) months after the end of the Lease Year to which
they relate, or if Landlord shall have begun a special audit in accordance with
Section 4.3, for such longer period as may be required to complete such special
audit. All such books and records shall be subject to inspection and audit by
Landlord at all reasonable times.
3. If Landlord is not satisfied with the statement of Tenant's Gross
Sales as submitted by Tenant, Landlord shall have the right to have auditors of
Landlord's choice make a special audit of all books and records, wherever
located, pertaining to Tenant's Gross Sales. If Tenant's Gross Sales, as so
determined by special audit, exceed the figures submitted by Tenant; by more
than three percent (3%), then: (a) Tenant shall pay the cost of such audit;
otherwise the cost of such audit shall be borne by Landlord, and (b) Landlord
shall have the option, exercisable within ninety (90) days following such
determination, to terminate this Lease upon thirty (30) days notice to Tenant.
Tenant shall promptly refund to Tenant any overpayment in percentage rent, as
the case may be, which is established by such special audit.
ARTICLE 5
COMMON AREAS
5.1 Landlord agrees that it will maintain parking facilities in the
Shopping Center or in reasonable proximity thereto which shall contain at all
times after Tenant has opened the Premises to the public for business at least
five (5) parking spaces for each one thousand (1,000) square feet of Gross
Rentable Area occupied by tenants of the Shopping Center, provided, however,
that if a portion or portions of the parking areas shall be taken for any public
or quasi public use under any governmental law, ordinance or regulation or by
right of eminent domain or by private purchase under threat thereof, Landlord
shall be relieved of its obligations to provide parking facilities in accordance
with this section to the extent that such parking facilities cannot be provided
without unreasonable expense, or in reasonable proximity to the Shopping Center.
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5.2 Tenant and its licensees, concessionaires, employees and customers
shall have the nonexclusive right to use the Common Areas as constituted from
time to time, such use to be in common with Landlord, other tenants of the
Shopping Center and other persons entitled to use the Common Areas, subject to
such reasonable rules and regulations as Landlord may from time to time
prescribe, and the rights of other tenants specifically set forth in this Lease,
provided that Landlord may require that automobiles owned by Tenant, its
licensees, concessionaires, contractors and employees can be parked only in
specific portions of the Common Areas designated by Landlord or other parking
areas outside the Shopping Center that are in reasonable proximity thereto. Upon
request by Landlord, Tenant shall famish to Landlord a complete list of the
license numbers of all automobiles operated by Tenant, its licensees,
concessionaires, contractors and employees. If Tenant, its licensees,
concessionaires, contractors and employees fail to park their cars in the
designated portions of the Common Areas, Landlord shall have the right in its
sole discretion to: (a) after giving tenant one time written notice requesting
correction, charge Tenant twenty and no/100 dollars ($20.00) per day per car
parked in any Common Areas other than those designated, (b) attach violation
stickers or notices to said car(s), and/or (c) have such car(s) physically
removed from the Shopping Center at Tenant's expense without any liability
whatsoever to Landlord. Tenant shall not interfere with the rights of other
persons to use the Common Areas. Landlord may temporarily close any part of the
parking facilities or other portion of the Common Areas for such periods of time
as may be necessary for: (i) temporary use, as a work area in connection with
the construction of buildings or other improvements within the Shopping Center
or contiguous property, (ii) repairs or alterations in or to the Common Areas or
to any sewers, utility facilities or distribution lines located, within the
Common Areas, (iii) preventing the public from obtaining prescriptive rights in
or to the Common Areas, (iv) security reasons, or (v) doing and performing such
other acts (whether similar or dissimilar to the foregoing) in, to and with
respect to, the Common Areas as in the use of good business judgment Landlord
shall determine to be appropriate for the Shopping Center, provided, however,
that Landlord shall use reasonable efforts not to unreasonably interfere with
Tenant's business.
5.3 Tenant agrees to pay as additional rent, as hereinafter provided,
its share of expenses incurred by Landlord at Landlord's discretion for the
operation and maintenance of the Common Areas and the management of the Shopping
Center, including. without limiting the generality of the foregoing, costs
incurred for lighting, painting, cleaning, central trash disposal (if Landlord
elects to provide), traffic control, policing, inspecting, landscaping and
repairing and replacing the Common Areas, or any part thereof, management fees,
a reasonable allowance for replacing the Common Areas, or any part thereof,
management fees, a reasonable allowance for Landlord's direct overhead,
depreciation of maintenance equipment, hazard and public liability insurance and
property damage insurance, "(including without limitation casualty insurance
covering the buildings and improvements constructed on the Shopping Center)" all
water consumed in the Shopping Center which is not separately metered to tenants
(single or multiple) but excluding depreciation of Landlord's original
investment in the Shopping Center. The share to be paid by Tenant shall be that
percentage of the cost of operation and maintenance of the Common Areas which
the Gross Rentable Area of the Premises bears to the Gross Rentable Area of the
Shopping Center. Landlord may at its option make monthly or other periodic
changes based upon the estimated annual cost of operation and maintenance of the
Common Areas, payable in advance but subject to adjustment after the end of each
calendar year on the basis of the actual costs for such year. Within ninety (90)
days after the close of each calendar year, upon written request from Tenant,
Landlord will furnish to Tenant a detailed statement, of the expenses relating
to the Common Areas for such year, such statement to be prepared in accordance
with generally accepted accounting practices and to include Tenant's
proportionate share of the expenses relating to the Common Areas computed as
herein provided. Any necessary adjustments shall be made within fifteen (15)
days after delivery of such statement.
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5.4 In. the event Tenant is not billed directly by the appropriate
authority for water consumed on the: Premises and/or for sewer rents or charges,
the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant's
prorated share of such services as determined by Landlord and shall be payable
by Tenant within five (5) days of receipt of Landlord's ▇▇▇▇, and such costs or
expenses incurred or payments which are being made by the Landlord for water or
sewer service used on the Premises shall be deemed to be additional rent payable
by Tenant and collectible by Landlord as such.
ARTICLE 6
USE AND CARE OF THE PREMISES
6.1 Tenant shall in good faith, continuously throughout, the Term of
this Lease conduct and carry on in the entire Premises the type of business
described in Section 1. 14 and the Premises shall not be used for any other
purpose. Tenant shall use Tenant's Trade. Name in the transaction of business in
the Premises. Tenant shall not sell, display or solicit sales in the Common
Areas. Tenant shall not use or permit the use of any vending machines or public
telephones on, at or about the Premises without the prior written consent of
Landlord which shall not unreasonably be withheld. Tenant shall not commit
waste, perform any acts or carry on any practices that may injure the Shopping
Center or be a nuisance or menace to other tenants in the Shopping Center.
Tenant shall operate its business in a dignified manner an din accordance with
high standards of store operation. so as to maintain a character in keeping with
the Shopping Center as a whole and so as to produce the maximum Tenant's Gross
Sales and shall, at all times when the Premises are open for business with the
public, keep the Premises properly equipped with fixtures, stocked with an
adequate supply of merchandise and attended by adequate personnel.
6.2 In the use and occupancy of the Premises, Tenant shall comply with
all laws and ordinances and all valid rules and regulations of the United
States, the city, county and state in which the Premises are located and any
other applicable government or agency thereof and all requirements of any public
or private agency having authority over insurance rates.
6.3 Tenant shall use its best efforts to keep the Premises at a
temperature sufficiently high to prevent freezing of water pipes and fixtures.
6.4 During all hours when Shopping Center generally is open for
business to the public, Tenant shall maintain comfortable and reasonable
temperatures, in all merchandising areas in the Premises, subject to any
adjustments required by any governmental agency-
(a) Heating Season: A prevailing minimum temperature of sixty-eight
(68) degrees Fahrenheit.
(b) Cooling Season: A prevailing minimum temperature of
seventy-eight (78) degrees Fahrenheit and relative humidity of approximately
sixty percent (60%).
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ARTICLE 7
USE AND CARE OF THE PREMISES
Tenant shall not, nor shall Tenant at any time permit any occupant of
the Premise to: (a) conduct or permit any fire, bankruptcy or auction sale
(whether real or fictitious) unless directed by order of a court of bankruptcy
or of competent jurisdiction, or conduct or permit any fictitious "Going Out of
Business" sale; (b) use or permit to be used, the malls or sidewalks adjacent to
such Premises, or any other area outside the Premises for the sale or display of
any merchandise or for any other business, occupation or undertaking or for
outdoor public meetings, circus or other entertainment (except for promotional
activities in cooperation with the management of die Shopping Center or an
association of merchants within the Shopping Center); (c) use or permit to be
used, any sound broadcasting or amplifying device which can be heard outside of
the Premises; (d) operate or cause to be operated any "elephant trains" or
similar transportation devices; (e) use or permit to, be used any portion of the
Premises for any unlawful purpose or use or permit the use of any portion of the
Premises as regular living quarters, sleeping apartments or lodging rooms or for
the conduct of any manufacturing business; (f) use the Premises for any purpose
that is excluded from or inconsistent with or not included within the purpose
for which the Premises may be used according to Section 1. 14 of this Lease; or
(g) use, operate or maintain the Premises in such manner that any of the rates
for insurance carried by Landlord, or the occupant of any premises within the .
Shopping Center, shall thereby be increased, unless Tenant shall pay to Landlord
or such occupant within the Shopping Center, as the case may be, an amount equal
to any such, increase in rates, such payment to be made promptly on demand as
each premium that shall include such increase shall become due and payable.
Tenant shall not, nor shall Tenant at any time permit any occupant of
the Premises to: (a) represent or advertise that it regularly or customarily
sells merchandise at "manufacturer's," "distributor's," "wholesale,"
"warehouse," "fire sale," "bankruptcy sale" or similar prices or other than at
retail prices (customary and normal restaurant promotions excepted); (b) shall
keep all mechanical apparatus free of vibration or noise which may be
transmitted beyond the confines of, the P (c) shall not cause or permit
unpleasant odors to emanate from the Premises; (d) shall not load or unload or
permit the loading or unloading of merchandise, supplies or other property
except within the area designated by Landlord from time to time; and (e) shall
not permit the parking or standing outside of such designated area of trucks,
trailers, or other vehicles or equipment engaged in such loading or unloading.
Tenant: (a) shall keep clean the inside and outside of all glass in the
doors and windows of the Premises and shall 'not attach sun screens or tinting
films to any doors or windows without written permission, from Landlord; (b)
shall replace promptly at its own expense with glass of like kind and quality
any plate or window glass; (c) shall replace doors or door hardware of the
Premises which may for any reason become cracked or broken; (d) shall maintain
the Premises in a clean, orderly and sanitary condition and free of insects,
rodents, vermin and other pests; (e) shall not, permit undue accumulation of.
garbage, trash, rubbish or other refuse in the Premises; and (f) shall keep such
refuse in proper containers inside the Premises until such time as it is called
for to be removed.
9
Tenant shall keep the Premises open for business during all hours when
the Shopping Center is generally open for business with the public. Unless the
hours during which the Shopping Center shall be open for business with the
public shall have been otherwise determined by a merchant's association, if in
operation, or Landlord, if not, Tenant shall keep the Premises open for business
with the public on each business day at least during the hours indicated below,
or such extensions of the minimum as shall be determined by a vote of a
merchant's association if in operation, or Landlord, if not.
STORE HOURS
Open Close
Monday 9:00 a.m. 5:00 p.m.
Tuesday 9:00 a.m. 5:00 p.m.
Wednesday 9:00 a.m. 5:00 p.m.
Thursday 9:00 a.m. 5:00 p.m.
Friday 9:00 a.m. 5:00 p.m.
Saturday Optional
In no event shall Tenant be open for business less than thirty (30) hours in any
given week. Notwithstanding the provisions of this Section, Tenant shall not be
required to keep its Premises open for business at any time prohibited by
applicable law, ordinance or governmental regulations and Tenant shall be
permitted to close the Premises during reasonable periods for repairing,
cleaning or decorating the Premises, with written permission from Landlord.
Minimum operating hours for restaurants shall be those hours usual and customary
for restaurant use. Under no circumstances shall any tenant be open later than
12:00 a.m.
In the event that at any time during the Term or any extension or
renewal thereof, Tenant should vacate, abandon, or desert the Premises or cease
operating the store therein, then in any such event, Tenant shall be in default
hereunder and Landlord shall have in addition to all rights and remedies
provided under Article 18 hereof, the right to collect not only the Minimum
Guaranteed Rent for each and every day that Tenant shall fail to do business
within the Premises in accordance with the terms of Section 6.1 hereof, but also
additional rental at the rate of $50.00 per day for each and every day that
Tenant shall fail to do business within the Premises in accordance with the
terms of Section 6.1 hereof, and such additional rent shall be deemed to be in
lieu of any percentage rent that might have accrued during such period;
provided, however, that such additional rent shall not accrue during any period
when the Premises are rendered untenantable by reason of fire, casualty or cause
beyond Tenant's control and not resulting from the intentional or negligent acts
or omissions of Tenant,. its assignees, sublessees, servants, agents, employees,
invitees, licensees, or concessionaires, or the servants, agents, employees,
invitees, licensees or concessionaires of Tenant's assignees or sublessees, and
the failure to operate Tenant's store during such period shall not be deemed a
default hereunder.
10
If Tenant is engaged in retail sales, then Tenant shall install and
maintain at all times displays of' merchandise in display windows, in the
Premises. Tenant will light any electric signs and keep the display windows. in
the Premises well lighted during such times as the level of light outside the
Premises is less than ten (10) foot candles of natural light, except that Tenant
shall not be required to keep its electric signs and windows lighted more than
one hour following the store closing hour.
Tenant shall comply and shall cause its agents, employees, invitees,
subtenants, licensees, concessionaires and contractors to comply, with and
observe such rules and regulations, restrictive covenants, easements and
ordinances relative to the operation of the Shopping Center as I shall from time
to time be promulgated by Landlord or made applicable to the Shopping Center.
Tenant's failure to keep and observe said rules and regulations shall constitute
a breach of the terms of this Lease in the manner as if the same were contained
herein as covenants. Notice of such rules and regulations and amendments and
supplements, if any, shall be given to Tenant and Tenant agrees thereupon to
comply with and observe all such rules and regulations and amendments thereto
and supplements thereof provided the same shall apply uniformly to all tenants
of the Shopping Center.
ARTICLE 8
MAINTENANCE AND REPAIR OF PREMISES
ALTERATIONS AND LANDLORD'S RIGHT OF ACCESS
Landlord shall keep the foundation and the exterior walls of the
Premises (except plate glass doors, door closures, door frames, storefronts,
windows and window frames located in exterior building walls) in good repair,
except that Landlord shall not be required to make any repairs occasioned by any
intentional wrongdoing or negligence of Tenant, its employees, agents,
contractors, guests, invitees, customers, assignees or sublessees or any damage
caused by or as a result of tenant's occupancy of the Premises, or any damage
caused by break-in, burglary or other similar acts in or to the Premises. In the
event that the Premises should become in need of repairs required to be made by
Landlord hereunder, Tenant shall give prompt written notice thereof to Landlord;
and Landlord shall not be responsible in any way for failure to make such
repairs until a reasonable time shall have elapsed after receipt by Landlord or
such written notice.
Tenant shall, at its sole cost and expense, keep the Premises in a
safe, sightly and serviceable condition and free from any infestation by
insects, rodents or other pests, and, except as provided in Section 8.1, 13.1,
13.2 and 14.5 hereof, make all needed maintenance, repairs and replacements for
the property operation of Tenant's business within the Premises, including, but
not limited to, all maintenance, repairs and replacements to: (a) the heating,
ventilating and air conditioning systems serving the Premises; (b) the exterior
and interior portion of all doors, windows, window frames, plate glass, door
closures, door frames and storefronts; (c) all plumbing and sewage facilities
within the Premises, including without limiting the generality of the foregoing,
free flow up to the connection to the main sewer line (d) all fixtures within
the Premises, (e) all electrical systems serving the Premises (whether or not
located within the premises); (f) all sprinkler systems serving the Premises;
(g) all interior walls, floors and ceilings; (h) any of Tenant's Work; (i) all
repairs, replacements. or alterations required by any governmental authority;
and (j) all necessary repairs and replacements of Tenant's trade fixtures
required for the proper conduct and operation of Tenant's business. If at any
time and from time to time during the Term and any extensions and renewals
thereof, Tenant shall fail to do any maintenance or to make any repairs or
replacements in and to the Premises as required in this I-ease, Landlord shall
have the right, but not the obligation,.to enter the Premises and to make such
maintenance, repairs or replacements for and on behalf of Tenant and all sums
expended by Landlord for such maintenance, repairs and replacements shall be
deemed to be additional rent hereunder and shall be payable to Landlord upon
demand. At the termination of this Lease, Tenant shall surrender the Premises in
good condition, reasonable wear and tear and loss by fire or other casualty,
alone excepted. Tenant shall keep in force a standard maintenance agreement on
all heating, ventilating and air conditioning systems serving the Premises with
a reputable heating and air conditioning service organization which shall be
subject to Landlord's approval and shall provide a copy of said maintenance
agreement to Landlord for its approval.
11
Tenant shall not make any alterations or replacements to the Premises
or any repairs required of Landlord under Section 8.1 of this Lease without the
prior written consent of Landlord, except for Tenant's Work and the installation
of unattached moveable fixtures which may be installed without drilling, cutting
or otherwise damaging the Premises. All alterations, additions and improvements
made in and to the Premises and all floor covering that is cemented or
adhesively fixed to the floor and all fixtures, other than trade fixtures, that
are installed in the Premises shall remain in and be surrendered with the
Premises and shall become the property of Landlord at the expiration or sooner
termination of this Lease. So long as Tenant is not in default hereunder, Tenant
shall have the right to remove its trade fixtures from the Premises, provided
that Tenant shall repair and restore any damage to the Premises caused or
occasioned by such removal.
All Tenant's work and repairs, alterations and improvements done by
Tenant within or to the Premises shall be performed in a good and workmanlike
manner, in compliance with all governmental requirements, and at such times and
in such manner as will cause a minimum of interference with other construction
in progress and with the transaction of business in the Shopping Center.
Whenever Tenant proposes to do any construction work within the Premises, Tenant
shall first furnish to Landlord plans and specifications covering such work in
such detail as Landlord may reasonably request. Such plans and specifications
shall comply with such requirements as Landlord may from time to time prescribe
for construction within the Shopping Center. In no event shall any construction
work be commenced within the Premises without Landlord's prior written approval
of such plans and specifications.
Landlord or its officers, agents, and representatives shall have the
right to enter into and upon any and all parts of the Premises t all reasonable
hours (or, in any emergency, at any hour) to (a) inspect same or clean or make
repairs, or alterations or additions as Landlord may deem necessary (but without
any obligation to do so, except as expressly provided for herein), (b) display
in the doors and/or windows of the Premises "For Rent" signs during the last six
(6) months of the Lease Term, and (c) show the Premises to prospective tenants,
purchasers, or lenders; and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof, nor shall such be deemed to be an actual or
constructive eviction.
12
Tenant shall not suffer or permit any materialmen's, mechanic's,
artisan's or other liens to be placed or exist against the land or building of
which the Premises are a part, or Tenant's interest in the Premises by reason of
work, services or materials supplied or claimed to have been supplied to Tenant
or anyone holding the Premises or any part thereof through or under the Tenant,
and nothing contained in this Lease shall be deemed or construed in any way as
constituting the consent or request of Landlord, expressed or implied to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any improvements, alterations or
repairs of or to the Premises or any part thereof, nor as giving Tenant any
right, power or authority to contract for or permit the rendering of any
services or le furnishing of any materials that would give rise to the filing of
a materialmen's, mechanic's or other lien against the Premises or the Shopping
Center. If any such lien should, at any time, be filed, Tenant shall cause the
same to be discharged of record within fifteen (15) days after the date of
filing the same. If Tenant shall fail to discharge such lien within such period,
then, in addition to any other right or remedy of Landlord, Landlord may, but
shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of' such lien by a deposit in
court or by posting a bond. Any amount paid by Landlord for any of the aforesaid
purposes, or for the satisfaction of any other lien not caused by Landlord, and
all reasonable expenses of Landlord in defending any such action or in procuring
the discharge of' such lien, shall be deemed additional rent hereunder and shall
be repaid by Tenant to Landlord on demand.
Landlord shall not be liable to Tenant for any interruption of Tenant's
business or inconvenience caused Tenant or Tenant's assigns, sublessees,
customers, invitees, employees, licensees or concessionaires in the Premises on
account of Landlord's performance of any repair, maintenance or replacement in
the Premises or any other work therein pursuant to Landlord's rights or
obligations under this Lease so long as such work is being conducted by Landlord
in accordance with. the terms of this Lease and without gross negligence or
gross disregard for Tenant's business operations.
ARTICLE 9
SIGNS, STOREFRONTS AND ROOF
Tenant shall not, without the prior written consent of Landlord: (a)
paint, decorate or make any changes to the storefront of the Premises; (b)
install any exterior lighting, awning, or protrusions or any exterior signs,
advertising matter, decoration or painting; (c) install any drapes, blinds,
shades or other coverings on exterior windows and doors; (d) affix any window or
door lettering, sign decoration or advertising matter to any window or. door
glass; or (e) erect or install any signs, window or door lettering, placards,
decorations or advertising media of any type that can be viewed from the
exterior of the Premises. Tenant shall, if requested by Landlord, install at
Tenant's expense, an exterior sign or signs approved by Landlord conforming to
the general appearance of other signs in the Shopping Center. Tenant shall at
all times keep all signs in good condition, in proper operating order and in
accordance with all applicable government regulations. Use of the roof of the
Premises is reserved to Landlord and Landlord may install upon the roof
equipment, signs, antenna, displays and other objects and may construct
additional stores above the Premises, provided any such use does no unreasonably
interfere with Tenant's occupancy of the Premises. If Landlord should undertake
any remodeling or renovation of the Shopping Center that requires modification
of Tenant's signs, then Tenant shall, if required by Landlord, conform to the
standard Sign Criteria used for such remodeling or renovation.
13
ARTICLE 10
UTILITIES
Tenant shall promptly pay all charges for electricity, water, sewer,
telephone, gas (where applicable) furnished to the Premises, and 'Landlord may,
if it so elects, furnish one or more of such services to Tenant, and, in such
event, Tenant shall purchase such services as are tendered by Landlord and shall
pay for such services at the rates established therefor by Landlord, provided
that such rates shall not exceed the rates that would be charged for the same
service if furnished directly by the applicable public utility then furnishing
such service. If at any time during the Term, or any extension or renewal
thereof, Tenant shall fail to pay promptly any of the foregoing charges,
Landlord shall have the right, but not the obligation, to pay such charge or
charges for and on behalf of Tenant and such amounts so paid shall be deemed to
be additional rent hereunder and shall be payable by Tenant to Landlord upon
demand.
Landlord shall not be liable in the event of any interruption in the
supply of utilities, including without limitation, any heating and air
conditioning if provided. Tenant agrees that it Will not install any equipment
that will exceed or overload the capacity of any utility facilities serving the
Premises and that if any equipment installed by Tenant shall require additional
utility facilities, the same shall be installed at Tenant's expense in
accordance with plans and specifications to be approved in writing by Landlord.
Landlord shall not be liable in the event of any interruption in the
supply of utilities, including without limitation, any heating and air
conditioning if provided. Tenant agrees that it will not install any equipment
that will exceed or overload the capacity of any utility facilities serving the
Premises and that if any equipment installed by Tenant shall require additional
utility facilities, the same shall be installed at Tenant's expense in
accordance with plans and specifications to be approved in writing by Landlord.
ARTICLE 11
INDEMITY AND NON-LIABILITY
Tenant does hereby agree to defend, indemnify and hold Landlord
harmless from and against any and all liability for any injury to or death of
any person or persons or any damage to property in any way arising out of or
connected with the condition, use or occupancy of the Premises, or in any way
arising out of any activities on the Premises, Common Areas or other portions of
the Shopping Center, of the Tenant, its assigns or sublessees or of the
respective agents, employees, licensees, contractors, concessionaires or
invitees of Tenant, its assigns, or sublessees and from all costs, expenses and
liabilities, including, but not limited to, court costs and reasonable attomey's
fees, at both the trial and appellate levels, incurred by Landlord in connection
therewith, excepting however, liability caused by Landlord's willful misconduct
or gross negligence.
Tenant covenants and agrees that Landlord shall not be liable to Tenant
for any injury to or death of any person or persons or from damage to any
property of Tenant, or any person claiming through Tenant, arising out of any
accident or occurrence on the Premises or other portions of the Shopping Center,
including, without limiting the generality of the foregoing, injury, death or
damage caused by the Premises or other portions of the, Shopping Center becoming
out of repair or caused by any defect in or failure of equipment, pipes or
wiring, or caused by broken glass, or caused by the backing up of drains, or
caused by gas, water, steam, electricity, or oil leaking, escaping or flowing
into the Premises, or caused by fire or smoke, or caused by the acts or
omissions of other tenants of the Shopping Center.
14
Landlord shall not be responsible or liable at any time for any loss or
damage to Tenant's merchandise, equipment, fixtures or other personal property
or to Tenant's business; and Landlord shall not be responsible for any defect,
latent or otherwise, in any building in the Shopping Center or any of the
equipment, machinery, utilities, appliances or apparatus therein.
ARTICLE 12
PUBLIC LIABILITY INSURANCE
12.1 Tenant shall, at its sole cost and expense, procure and maintain
throughout the Term of this Lease, a policy or policies of insurance, insuring
Tenant, Landlord and any other persons designated by Landlord against any and
all liability for injury to or death of a person of persons and for damage to
property occasioned by or arising out of the condition of the Premises, the use
or occupancy of the Premises or any construction work being done on the Premises
by Tenant, or if applicable, boiler explosion. The limits of such policy shall
be in an amount not less than the Liability Insurance Limits as stated in
Article I, Section 1.20 of this Lease and shall be written by an insurance
company or companies reasonably satisfactory to Landlord. Such policies shall
not be noncancelable except after thirty (30) days' written notice to Landlord
and designees of Landlord. Such policies or duly executed certificates of
insurance with respect thereto shall be delivered to Landlord prior to the Rent
Commencement Date and renewals thereof as required shall be delivered to
Landlord at least thirty (30) days prior to the expiration of the respective
policy terms.
ARTICLE 13
DAMAGE BY CASUALTY
13.1 Tenant shall give immediate written notice to Landlord of any
damage to the Premises caused by fire or other casualty, and if Landlord does
not elect to terminate this Lease as hereinafter provided, Landlord shall
proceed with reasonable diligence and at its sole cost and expense to rebuild
and repair the Premises. Notwithstanding the foregoing, in the event that: (a)
the insurance proceeds payable in connection with such damage and destruction
shall be insufficient to make such restoration, (b) the, building in which the
Premises are located shall be destroyed or substantially damaged by casualty not
covered by standard fire or extended coverage insurance; (c) said building shall
be destroyed or rendered untenantable by any casualty to the extent of at least
fifty percent (50%) of the Gross Rentable Area of said building; (d) Landlord
shall not have actual and unconditional receipt of the iusurance proceeds
payable in connection with such damage and destruction, (e) the holder of any
mortgage, deed to secure debt, deed of trust, or other instrument in the nature
thereof which encumbers Landlord's interest hereunder or in the Premises shall
require that such proceeds shall be applied against any debt owed to such
holder, or (f) there shall be less than two (2) years remaining in the Term, or
any extension or renewal thereof, then, in any of such events, Landlord may
elect either to terminate this Lease or to proceed to rebuild and repair the
Premises. Landlord shall give written notice to Tenant of such election within
one hundred and twenty (120) days after the occurrence of said casualty.
15
13.2 Landlord's obligation to rebuild and repair the Premises shall in
any event be limited to restoring Landlord's Work to substantially the condition
in which the same existed prior to the casualty, and Tenant agrees that promptly
after the completion of such work by Landlord, Tenant will proceed with
reasonable diligence and at its sole cost and expense to restore Tenant's Work
to substantially the same condition in which the same existed prior to the
casualty.
13.3 Tenant agrees that during any period of reconstruction or repair
of the Premises, it will continue the operation of its business within the
Premises to the extent practicable. During the period from the occurrence of, a
casualty until Landlord's repair's are completed, the Minimum Guaranteed Rent
(but not percentage rent) shall be reduced and abated in proportion to the
amount of Gross Rentable Area of the Premises that is rendered untenantable as a
result of such casualty; provided, however, that if such damage or destruction
is caused by the intentional or negligent act; or omissions of Tenant, its
assignees, sublessees, servants, agents, employees, invitees, licensees, or
concessionaires, or the servants, agents, employees, invitees, licensees,
contractors or concessionaires of Tenant's assignees or sublessees, then, and in
that event, the Minimum Guaranteed Rent shall not ▇▇▇▇▇. Tenant shall not be
entitled to and hereby waives, releases, and relinquishes any and all claims
against Landlord for any compensation or damage for loss of use of all or any
part of the Premises for any inconvenience or annoyance occasioned by any such
damage, destruction, repair, or restoration of the Premises.
13.4 Tenant agrees at all times at its expense to keep its merchandise,
fixtures, Tenant's Work and its other property situated within the Premises
insured against fire, with extended coverage, to the extent of at least eighty
percent (80%) of the full insurable value thereof. Such insurance shall be
caried with companies reasonably satisfactory to Landlord. Such insurance shall
be noncancelable except after thirty (30) days' written notice to Landlord. Such
policies or duly executed certificates of insurance with respect thereto shall
be delivered to Landlord prior to the Rent Commencement Date and renewals
thereof as required shall be delivered to Landlord at least thirty (30) days
prior to the expiration of the respective policy terms. The proceeds of such
insurance shall be payable to Landlord and Tenant, jointly, for use by Tenant
only, except with the consent of Landlord, for the repair or replacement of
merchandise, fixtures, Tenant's Work, or other property that was situated within
the Premises.
13.5 All fire and extended coverage insurance carried by Landlord or
Tenant covering losses arising out of destruction of or damage to the Premises,
or its contents or to other portions of the Shopping Center shall, to the extent
reasonably obtainable, provide for waiver of subrogation against Landlord,
Tenant and other tenants in the Shopping Center, on the part of the insurance
carrier. Evidence of the existence of such waiver will be furnished by either
party to the other party on request.
13.6 In the event that fifty percent (50%) or more of the Gross
Rentable Area of the Shopping Center shall be destroyed or substantially damaged
by any casualty, notwithstanding that the Premises may be unaffected by such
casualty, Landlord may terminate this Lease by giving to Tenant thirty (30)
days' prior, written notice of Landlord's election to do so, which notice shall
be given, if at all, within one hundred and twenty (120) days following the date
of said occurrence. Rent shall be adjusted as of the date of such termination.
16
ARTICLE 14
EMINENT DOMAIN
14.1 If more than ten percent (10%) of the Gross, Rentable Area of the
Premises is taken for any public or quasi-public use under any governmental law,
ordinance or regulations, or by right of eminent domain, or by private purchase
under threat thereof, this Lease shall terminate upon the election of either
party effective on the date possession of a portion of the Premises is taken by
the condemning authority.
14.2 If less than ten percent (10%) of the Gross Rentable Area of the
Premises is taken for any public or quasi-public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or by private purchase
under threat. thereof, this Lease shall not terminate, or if more than ten
percent (10%) of the Gross Rentable Area of the Premise is so taken and this
Lease. is not terminated in accordance with Section 14.1, then, in either of
such events, the Minimum Guaranteed Rent (but not percentage rent) payable
hereunder during the unexpired portion of the Term shall be reduced by the
percentage which the area taken bears to the area of the Premises prior to the
date possession of such portion of the Premises is taken by the condemning
authority.
14.3 If any portion of the Common Areas should be taken for any public
or quasi public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or by private purchase under threat thereof, this Lease
shall not terminate, nor shall the rent payable hereunder be. reduced, nor shall
Tenant be entitled to any part of the award made for such taking, except that
either Landlord or Tenant may terminate this Lease if the area of the Common
Areas remaining following such taking, plus any additional parking area provided
within a reasonable time by Landlord in reasonable proximity to the Shopping
Center, shall be less than seventy percent (70%) of the original area of the
Common Areas.
14.4 Any election to terminate this Lease following condemnation shall
be evidence by written notice of termination delivered to' the other party
within thirty (30) days after the date on which both Landlord and Tenant are
notified of such taking or such sale, and, in the event that neither Landlord
nor Tenant shall so exercise such election to terminate this Lease, then this
Lease shall continue in full force and effect.
14.5 If this Lease is not terminated following any condemnation,
Landlord shall make all necessary repairs or alterations within the scope of
Landlord's Work necessary to make the Premises an architectural whole, and
Tenant agrees that promptly after completion of such work by Landlord, Tenant
will proceed with diligence and at its sole cost and expense to make all
necessary repairs or alterations within the scope of Tenant's Work necessary to
make the Premises an architectural whole.
14.6 All compensation awarded for any taking or the proceeds of private
sale under threat thereof, whether for the whole or a part of the Premises,
shall be the property of Landlord, whether such award is compensation for
damages to Landlord's or Tenant's interest in the Premises, and Tenant hereby
assigns all of its interest in any such award to Landlord; provided, however,
Landlord shall have no interest in any award made to Tenant for loss of business
or for the taking of Tenant's fixtures and personal property within the Premises
if a separate award for such items is made to Tenant.
17
ARTICLE 15
ASSIGNMENTAND SUBLETTING
1.Tenant shall not assign or transfer all or any portion of its
interest in this Lease or in the Premises, or sublet all or any portion of the.
Premises, without the prior written consent of Landlord. Any assignment or
sublease without Landlord's prior written consent shall be voidable and, at
Landlord's election, shall constitute a default of Tenant hereunder. Consent by
Landlord to one or more assignments or sublettings shall not operate as a waiver
of Landlord's rights with respect to any subsequent assignment or subletting. If
Tenant is a partnership, a change (voluntary, involuntary or by operation of
law), in a single transaction or cumulatively, as a result of one or more.
transactions, in the ownership of twenty percent (20%) or more of. the
partnership, or the dissolution or liquidation of the partnership, shall be
deemed an assignment of this Lease. If Tenant consists of more than one person,
any purported assignment (voluntary or by operation of law) from any of such
persons to any other person or entity shall be deemed an assignment of this
Lease. If Tenant is a corporation, any dissolution, merger, consolidation, or
other reorganization of Tenant, or the sale or other transfer (voluntary,
involuntary or by operation of law), in a single transaction or cumulatively, as
a result of one or more transactions, in the ownership of the controlling
percentage of capital stock of Tenant, or the sale of fifty-one percent (51%)
of' the value of the assets of Tenant, shall be deemed an assignment of this
Lease. The phrase "controlling percentage" means the ownership of, and the right
to vote, stock possessing at least fifty-one percent (51%) of the total combined
voting power of all classes of Tenant's capital stock issued, outstanding, and
entitled to vote for the election of directors. The foregoing provision shall
not apply to corporations, the stock of which is regularly. traded through an
exchange or over the counter. The term "sublet" shall be deemed to include the
granting of licenses, concessions, and any other rights of occupancy of any
portion of the Premises, excepting only customary leased department arrangements
under which such leased department is not operated under a separate name and is
held out to the public as an integral part of the Premises. The gross sales of
each such leased department shall be deemed a part of Tenant's Gross Sales for
the purposes of determining percentage rent payable by Tenant to Landlord.
2.The term "Landlord" as used in this Lease means only the owner or
entity from time to time owning the building containing the Premises, so that in
the event of any sale or sales thereof, the Landlord who is a grantor in any
such sale shall be and hereby is, without further' agreement, entirely freed and
relieved of all the obligations of Landlord hereunder. Any such sale or sales
of' the Premises, unless pursuant to a foreclosure sale or deed in lieu of such
foreclosure, shall be subject to this Lease and it shall be deemed and construed
without further agreement that the purchaser at any such sale has assumed and
agreed to carry out any and all obligations of Landlord under this Lease so long
as such purchaser shall be the owner of the building containing the Premises.
3.Tenant shall not mortgage, pledge or otherwise encumber its interest
under this Lease. Tenant has only a usufruct, not subject to levy, sale or other
transfer, either voluntary or by operation of 'law, except in accordance with
this Article.
18
▇.▇▇ no case may Tenant assign any options granted to Tenant hereunder,
all such options being deemed personal to Tenant and exercisable by Tenant only.
ARTICLE 16
TAXES
16.1 Tenant shall be liable for and shall pay all taxes levied against
personal property, fixtures, and Tenant's Work in the Premises; if such taxes
for which Tenant is liable are levied against Landlord or Landlord's property
and if Landlord elects to pay the same or if the assessed value of Landlord's
property is increased by inclusion of any such items and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon demand that
part of such taxes for which Tenant is liable hereunder.
16.2 Tenant agrees to pay as additional rent, its share of the general
real estate taxes, assessments, and governmental charges levied against the
Shopping Center for each calendar year beginning with the Rent Commencement Date
and during the Lease Term and any renewals or extensions thereof. Said taxes,
assessments, and governmental charges shall be appropriately prorated during the
first and last years of the Lease Term if such years are less than full calendar
years. The proportionate share to be paid by Tenant shall be that percentage of
said general real estate taxes, assessments, and governmental charges that the
Gross Rentable Area of the Premises bears to the Gross Rentable Area of the
Shopping Center. Landlord may at its option make monthly or other periodic
charges based upon the estimated annual taxes, payable in advance but subject to
adjustment after receipt of the tax statement by Landlord.
16.3 Tenant agrees to pay as additional rent any rent tax or other tax
imposed upon rent payments or imposed upon Landlord based upon rent payments by
Tenant to Landlord; however, Tenant shall not be required to pay any income tax
of Landlord.
ARTICLE 17
EVENTS OF DEFAULT
Each of the following events shall be an Event of Default by Tenant
under this Lease;
17.1 Failure of Tenant to pay when due any rent, charges or other
monetary obligations payable by Tenant hereunder or under any other Lease now or
hereafter executed by Tenant in connection with space in the Shopping Center;
17.2 Failure of Tenant to comply with or observe any other term,
covenant, or provision of this Lease or of any other Lease now or hereafter
executed by Tenant in connection with space in the Shopping Center, which
failure shall continue uncured for ten (10) days or longer after Landlord shall
have given written notice thereof to Tenant, or if said failure cannot with due
diligence be cured within ten (10) days, if Tenant shall fail to begin to cure
said failure within said ten (10) days or shall fail to pursue diligently the
curing of said failure to completion within a reasonable time after the giving
of said notice of default, which time shall not exceed thirty (30) days;
17.3 Any representation or warranty made by Tenant in this Lease shall
be untrue in any material respect;
19
17.4 The making of an assignment for the benefit of creditors by Tenant
or any Guarantor of Tenant's obligations hereunder;
17.5 The filing by Tenant or any Guarantor of Tenant's obligations
hereunder of any petition under any section or chapter of the Federal Bankruptcy
Code, as amended from time to time, or under any similar law or statute of the
United States or any state thereof; the filing against Tenant or any Guarantor
of Tenant's obligations hereunder under any section or chapter of the Federal
Bankruptcy Code, as amended from time to time, or under any similar law or
statute of the United States or any state thereof if said petition is not
dismissed within thirty (30) days after filing or if Tenant consents to or fails
to object to said filing; or the adjudication as bankrupt or insolvent of Tenant
or any Guarantor or Tenant's obligations hereunder in any proceedings filed
thereunder;
17.6 The appointment of a receiver or trustee for all or substantially
all of the assets of Tenant's obligations hereunder if said appointment is not
terminated within thirty (30) days after the date of appointment;
17.7 The desertion or abandonment of all or any portion of the Premises
by Tenant; or
17.8 The levying of any writ of execution, attachment or garnishment
against any interest of Tenant in this Lease, the Premises or any property
located on the Premises if said levy remains in effect for thirty (30) days or
more.
ARTICLE 18
REMEDIES ON DEFAULT
Upon the occurrence of an Event of Default by Tenant under this Lease,
then without any notice or demand whatsoever being required, Landlord shall have
the right, but not any duty, to exercise, on a cumulative basis, any or all of
the following remedies:
18.1 Landlord may continue this Lease in fall force and effect, and
proceed to collect all rent when due;
18.2 Landlord may continue this Lease in fun force and effect and may
enter the Premises and relate all or any part of them to other parties for
Tenant's account. Tenant shall be liable to pay on. demand to Landlord all costs
Landlord incurs in entering the Premises and reletting them, including without
limitation, broker's commissions, expenses of repairs and remodeling, attorney's
fees and all other actual costs. Reletting may be for a period shorter or longer
than the remaining term of this Lease. During the term of any reletting, Tenant
shall pay to Landlord the rent due under this Lease on the dates due, less any
net rents Landlord receives from any reletting.
18.3 Landlord may, without any notice or demand whatsoever, terminate
Tenant's rights under this Lease at any time, on termination, Landlord shall
have the right to recover from Tenant all costs, expenses, losses and damages
caused by said default and termination including but not limited to:
20
18.3.1 An amount equal to all unpaid rent that had accrued at the time
of termination of this Lease; plus
18.3.2 An amount equal to (a) the p resent value of all rent (assuming
that the Minimum Guaranteed Rent and the amount of the percentage rent and the
Common Area Maintenance costs payable hereunder for the future will be the same
as for the most recent Lease Year) that would have accrued under this Lease had
this Lease not been terminated, for the period of time between (i) the date of
calculation of rent under subsection 18.3.2, and (ii) the date the Term would
have ended if this Lease had not been prematurely terminated; less (b) the
present value of rent at that time actually collected for comparable leases of
comparable space in the trade area in which the Shopping Center is located; plus
18.3.3 An amount equal to (a) alt actual costs and expenses, including
but not limited to attorney's fees, that have at that time been incurred by
Landlord, plus (b) the present value of all actual costs and expenses, including
but not limited to attorney's fees at both the trial and appellate levels that
with reasonable certainty are likely to have to be incurred thereafter by
Landlord that are reasonably necessary to compensate Landlord for all economic
losses proximately caused by Tenant's default.
In computing the present value of amounts for purposes of this
subsection 18.3, a capitalization rate of eight percent (8%) per annum shall be
used.
18.4 Without any showing of need or the presence of any statutory or
common law grounds, all of which are hereby expressly waived, Landlord may have
a receiver appointed to take possession of the Premises and relet in accordance
with subsection 18.2.
18.5 Landlord may cure any default as Tenant's cost. If Landlord, at
any time, by reason of Tenant's default, pays any sum to cure any default, the
sum so paid by Landlord shall be immediately due from Tenant to Landlord on
demand, and shall bear interest at the rate of eighteen percent (18%) per annum
from the date paid by Landlord until Landlord shall have been reimbursed by
Tenant. Said sum, together with interest thereon, shall be additional rent.
18.6 Landlord may apply all or part of the Security Deposit to pay any
sums owed by Tenant to Landlord.
18.7 Landlord may exercise any or all other rights or remedies
available at law or equity, including, without limitation, the right to
restraining orders, injunctions and decrees of specific performance. Pursuit of
any of the foregoing remedies shall not preclude pursuit of any of the other
remedies herein provided or any other remedies provided by law or at equity, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the covenants and provisions herein contained.
Forbearance by Landlord to enforce one or more of the remedies herein provided
upon an Event of Default by Tenant shall not be deemed or construed to
constitute a waiver of such Event of Default. The failure of Landlord to insist
upon strict performance of any of the terms, conditions and covenants contained
in this Lease shall not be deemed to be a waiver of any rights or remedies that
Landlord may have and shall not be deemed a waiver of any subsequent breach or
default in the terms, conditions and covenants herein contained except as may be
expressly waived in writing. Tenant hereby waives trial by jury in any action,
proceeding or counterclaim brought by Landlord against the Tenant on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant created hereby, the Tenant's use or
occupancy of the Premises and/or any claim for injury or damage. In the event
Landlord commences any action or proceeding for nonpayment of any rent or other
charges due hereunder, Tenant agrees not to interpose any noncompulsory
counterclaim of any nature or description in any such action or proceeding.
21
ARTICLE 19
ATTORNEY'S FEES
19.1 If it shall become necessary for either Landlord or Tenant to
employ counsel to enforce any term, covenant or provision of this Lease, or to
defend any action brought by the other party in connection with this Lease or
otherwise, or to recover possession of the leased premises, then, in any such
event, the non-prevailing party in such action agrees to pay any reasonable
attorney's fees and expenses incurred by the prevailing party.
ARTICLE 20
SECURITY INTEREST
5.5 In addition to the statutory landlord's lien, Landlord shall have,
at all times, and Tenant hereby grants to Landlord, a valid security interest
(to secure payment of all rents and other sums of money becoming due hereunder
from Tenant, and to secure payment of any damages or losses that Landlord may
suffer by reason of the breach by Tenant of any covenant, agreement or condition
contained herein,) upon all goods, wares, equipment, fixtures, furniture,
improvements, and other personal property of Tenant presently or that may
hereafter be situated on the Premises, and all proceeds therefrom, and such
property shall not be removed therefrom without the consent of Landlord until
all arrangements in rent as well as any and all other sums of money then due to
Landlord hereunder shall first have been paid and discharged and all the
covenants, agreement and conditions hereof have been fully complied with and
performed by Tenant. Upon the occurrence of an Event of Default by Tenant,
Landlord may, in addition to any other remedies provided herein, enter upon the
Premises and take possession of any and all goods, wares, equipment, fixtures,
furniture, improvements and other personal property of Tenant situated on the
Premises, without liability for trespass or conversion, and sell the same at
law; and Tenant shall pay any deficiencies forthwith. Upon request by Landlord,
Tenant agrees to execute and deliver to Landlord a financing statement in form
sufficient to perfect the security interest of Landlord in the said property and
the proceeds thereof, under the provisions of the Uniform Commercial Code in
force in the State in which the Premises are located. The statutory lien for
rent is not hereby waived, the security interest herein granted being in
addition and supplementary thereto.
22
ARTICLE 21
WAIVER OF SUBROGATION
21.1 Each party to this Lease (the "Waiving Party") hereby waives any
cause of action it might have against the other party hereto (the "Beneficiary")
on account of any loss or damage to the extent that said loss or damage is
covered by any insurance policy that names the Beneficiary as a party insured,
except to the extent of the applicable deductible on said policy. Landlord and
Tenant agree that they will request their insurance carriers to endorse all
applicable policies waiving the carrier's rights of recovery under subrogation
or otherwise against the other party.
ARTICLE 22
HOLDING OVER
22.1 If Tenant remains in possession of the Premises after the
termination of this Lease and without the execution of a new Lease, Tenant shall
be deemed to be occupying the Premises as a tenant at sufferance at a rent equal
to the rent (including any percentage rent) herein provided plus fifty percent
(50%) of such amount and otherwise subject to all the covenants and provisions
of this Lease insofar as the same are applicable to a tenant at sufferance and
in no event shall there by any renewal of this Lease by operation of law.
ARTICLE 23
SUBORDINATION
23.1 This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to the lien of any first priority mortgage, deed to
secure debt, deed of trust, or other instrument in the nature thereof that may
now or hereafter affect Landlord's fee title to the Premises or Landlord's
interest hereunder; and to any modifications, renewals, consolidations,
extension, or replacements of any of the foregoing. This clause shall be
self-operative and no further instrument of subordination shall be required by
Tenant. In confirmation of such subordination, Tenant shall, upon demand at any
time or times, execute, seal and deliver to Landlord, without expense to
Landlord, any and all instruments in recordable form that may be requested by
Landlord to evidence the subordination of this Lease and all rights hereunder to
the lien of any such mortgage, deed to secure. debt, deed of trust or other
instrument in the nature thereof, and each renewal, modification, consolidation,
replacement, and extension thereof, and if Tenant shall fail at any time to
execute, seat and deliver and by such instrument, in addition to any other
remedies available to it in consequence thereof, Landlord may execute, seal and
deliver the same as the attorney in fact of Tenant and in Tenant's name, place
and stead, and Tenant hereby irrevocably makes, constitutes and appoints
Landlord, its successors and assigns, as such attorney in fact for that purpose.
In addition, upon Landlord's request, Tenant shall at any time or times,
execute, seal and deliver to Landlord without expense to Landlord, any and all
instruments that Landlord deems necessary or appropriate to make this Lease
superior to the lien of any such mortgage, deed to secure debt, deed of trust,
or other instrument in the nature thereof, and each renewal, modification,
consolidation, replacement and extension thereof, and, if Tenant shall fail at
any time to execute, seal and deliver such instrument, in addition to other
remedies available to it in consequence thereof, Landlord may execute, seal and
deliver the same as the attorney in fact of Tenant and in Tenant's name, place
and stead, and Tenant hereby irrevocably makes, constitutes and appoints
Landlord, its successors and assigns, as such attorney in fact for that purpose.
23
23.2 If the holder of any mortgage, deed to secure debt, deed of trust,
or other instrument in the nature thereof shall hereafter succeed to the right
of Landlord under this Lease, whether through possession, foreclosure,
deed-in-lieu of foreclosure, or delivery of a new Lease or otherwise, at the
option of such holder, Tenant shall attorney to and recognize such successor as
Tenant's landlord under this Lease, and shall promptly execute and deliver any
instrument that may be necessary to evidence such attornment. Upon attornment
provided for in this Section 23.2, this Lease shall continue in full force and
effect as a direct Lease between such successor landlord and Tenant, subject to
all the terms, covenants and conditions of this Lease; provided, however, that
such holder, as successor landlord, shall not be liable for returning to Tenant,
nor crediting against any rent due hereunder, any, advance rents previously paid
by Tenant to Landlord or the Security Deposit unless such holder has
acknowledged the receipt of such advance rents or the Security Deposit.
ARTICLE 24
MERCHANTS ASSOCIATION
ARTICLE 25
NOTICES
25.1 Any notice, request, demand, instructions or other communication
(a "Notice") to be given to any party with respect to this Lease may be given
either by the party or its counsel and shall be deemed to have been properly
delivered when sent by certified mail, return receipt requested, or by reputable
courier service. If sent by certified mail, a Notice shall be deemed to have
been given when properly deposited with the United States Postal Service with
the proper address and postage paid therewith, and shall be deemed to have been
received on the third business day following the date of such deposit, whether
or not actually received by the addressee. If sent by courier service, a Notice
shall be deemed to have been given when delivered to such courier service with
the proper address and delivery charges either prepaid or properly charged to an
account in good standing and shall be deemed to have been received when actually
delivered to said addressee by said courier service. The addressees to which
Notices shall be sent are the mailing address set forth in Sections 1.15 and
1.16 of this Lease. In addition, copies of each Notice sent to Landlord shall
also be sent simultaneously to:
_________________________________ Copy to: First Management Services
_________________________________ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
_________________________________ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Each party shall have the right to change the address to which notices
are to be sent pursuant to this Section by giving to the other party written
notice of such change of address in accordance with the provisions of this
Section.
24
ARTICLE 26
MISCELLANEOUS
26.1 Tenant agrees that upon the request of either Landlord or the
holder of any first priority mortgage, deed to secure debt, deed of trust, or
other security instrument in the nature thereof encumbering Landlord's interest
hereunder or in the Premises, Tenant shall send to such holder copies of all
notices sent to Landlord, such copies to be forwarded to such older as and when
such notices are sent to landlord and at the mailing address from time to time
provided to Tenant by either Landlord or such holder. In addition, Tenant agrees
that it may not exercise any of its remedies on account of a default by Landlord
under this Lease unless and until such holder shall have received written notice
of such default from Tenant and a period of thirty (30) days after receipt of
such notice for during such default shall thereafter have elapsed.
26.2 The captions and the table of contents used in the Lease are for
convenience only and do not in any way limit or amplify the terms and provisions
hereof. Whenever the singular number is used the same shall include the plural,
and words of any gender shall include each other gender.
26.3 One or more waivers of any covenant, term or condition of this
Lease by either party shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waiver or render unnecessary consent to or
approval of any subsequent similar act.
26.4 Landlord hereby covenants and agrees that if Tenant shall perform
all of the covenants and agreements herein required to be performed on the part
of the Tenant, Tenant shall, subject to the terms of this Lease, at all times
during the continuance of this Lease have the peaceable and quiet enjoyment and
possession of the Premises.
26.5 This Lease contains the entire agreement between the parties and
no agreement; representation or inducement shall be effective to change, modify
or terminate this Lease in whole or in part unless in writing and signed by the
parties.
26.6 Tenant warrants that it has had no dealings with any broker other
than the Broker in connection with the negotiations or execution of this Lease,
and Tenant agrees to indemnify Landlord and hold Landlord harmless from and
against any and all cost, expense or liability for commission or other
compensation or charges claimed by any broker or agent other than said Broker
acting for Tenant with respect to this Lease.
26.7 At any time and from time to time, Tenant, on or before the date
specified in a request made by Landlord, which date shall not be earlier than
ten (10) days from the making of such request, shall execute, acknowledge and
deliver to Landlord a certificate evidencing whether or not:
(a) This Lease is in full force and effect;
(b) This Lease has been amended in any way;
(c) There are any existing defaults on the part of either Landlord or
Tenant hereunder to the knowledge of Tenant and specifying the nature of such
default, if any;
25
(d) The date to which rent, including percentage rent, if any, has been
paid; and
(e) Any other facts or matters pertaining to the Lease, within the
knowledge of Tenant, and requested by Landlord.
(f) Current financial status of Tenant or Guarantor.
Each certificate delivered pursuant to this Section may be relied on by
any prospective purchaser or transferee of the Shopping Center or of Landlord's
interest hereunder or by any assignee of any such mortgage.
26.8 The terms, provisions, and covenants in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto and their
respective heirs, assigns, successors in interest and legal represntatives
except as otherwise herein expressly provided.
26.9 Time is of the essence with respect to each and every provision in
this Lease.
26.10 The laws of the state in which the Premises are located shall
govern the interpretation, validity, performance, and enforcement of this Lease.
26.11 Tenant shall, on or before the last day of the Term hereof, or on
the sooner termination hereof, peaceably and quietly leave, surrender and yield
up unto Landlord the Premises, together with all alterations, additions,
improvements, fixtures and equipment, including air conditioning equipment but
excluding trade fixtures and other personal property of Tenant, any lessee,
sublessee, or licensee or concessionaire of Tenant, or any other occupant of the
Premises. Such alterations, additions, improvements, fixtures and equipment
shall be in good order and repair, ordinary wear and tear, obsolescence, damage
by fire or other casualty, acts of God, condemnation, civil riot and commotion
excepted. All such trade fixtures and other personal property, shall be removed
by Tenant on or before the last day of the Term hereof, and all such property
not so removed shall be deemed abandoned by Tenant and conveyed to Landlord
unless Landlord shall give notice to Tenant to remove all or any part thereof,
in which event Tenant shall promptly at its expense remove same, or Landlord may
do so at Tenant's expense.
26.12 If any term, covenant, or condition of this Lease or application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is invalid or unenforceable, shall be unaffected thereby and each term,
covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law;
26.13 Nothing herein contained shall be deemed or construed by the
parties hereto, nor by any third party as creating the relationship of principal
and agent or of partnership or joint venture between the parties hereto, it
being understood and agreed that neither the method of computation of rent, nor
any other provisions contained herein, nor any acts of the parties hereto, shall
be deemed to create any relationship between, the parties hereto other than the
relationship of landlord and tenant.
26
26.14 Landlord and Tenant hereby agree that they will keep the terms
and provisions of this Lease confidential and will not disclose the same to any
party except as reasonably necessary in the ordinary course of their respective
businesses. Neither Landlord nor Tenant shall attempt' to record this Lease in
any public real estate records.
26.15 If any payment owed by Tenant to Landlord under this Lease is not
received by Landlord within five (5) days after the due date thereof, without in
any way implying Landlord's consent to such late payment, Tenant agrees to pay,
in addition to all other payments due under this Lease, a late payment charge
equal to five percent (5%) of the amount of the payment that is past due. Tenant
acknowledges that said late payment charge shall constitute liquidated damages
for the purpose of reimbursing Landlord for the additional administrative costs
and expenses that Landlord presently expects to incur in connection with the
special handling and processing of late payments. Landlord and Tenant expressly
covenant and agree that in the event of any such late payment by Tenant, the
damages resulting therefrom to Landlord will be difficult, if not impossible, to
determine and the late payment charge constitutes a reasonable and good faith
estimate by the parties of the extent of such damages and shall not be deemed to
be a penalty or to constitute interest. Notwithstanding the foregoing, no late
payment charge shall apply to any sums that may 'have been advanced by Landlord
to or for the benefit of Tenant pursuant to this Lease. All sums owed by Tenant
to Landlord pursuant to this Lease shall constitute rent. All rent due hereunder
shall bear interest from the due date until paid in full at a rate equal to the
lesser of (a) the prime interest rate in effect from day to day at NationsBank,
Atlanta, Georgia plus three and one-half percentage points; or (b) the maximum
legal rate allowed by law. If more than the maximum legal rate of interest
should ever be collected with regard to any sum due hereunder, said excess
amounts shall be credited against future payments of rent thereafter first
accruing hereunder. If no further rent accrues hereunder, said excess sums shall
be promptly refunded by Landlord to Tenant upon written demand by Tenant. No
payment by Tenant or receipt by Landlord of a lesser amount than the correct
rent shall be deemed to be other than a payment on account, nor shall any
endorsement or statement on any check of any letter accompanying any check or
payment be deemed an accord and satisfaction. Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or to
pursue any other remedy.
26.16 When a period of time is herein prescribed for any action to be
taken by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation for any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war, laws,
regulations or restriction or any other causes of any kind whatsoever that are
beyond the control of Landlord.
26.17 If there be more than one Tenant, the obligations hereunder
imposed upon Tenant shall be joint and several. If there be a guarantor of
Tenant's obligations hereunder, the obligations hereunder imposed upon Tenant
shall be joint and several obligations of Tenant and such guarantor and Landlord
need not first proceed against Tenant before proceeding against such guarantor
nor shall any such guarantor be released from its, guaranty for any reason
whatsoever, including without limitation, in case of any amendments hereto,
waivers hereof or failure to give such guarantor any notices hereunder.
27
26.18 All exhibits, attachments, riders and addenda referred to in this
Lease are incorporated into this Lease and made a part hereof for all intents
and purposes.
26.19 If Tenant is other than a natural person, Tenant shall deliver to
Landlord such legal documentation as Landlord may request to evidence the
authority of those signing this Lease to bind the Tenant.
26.20 Each covenant of Landlord and Tenant under this Lease is
independent of each other covenant under this Lease, and no default by either
party in performance of any covenant shall excuse the other party from the
performance of any other covenant.
26.21 Any claim, demand or cause of action which may arise on behalf of
Tenant against Landlord under this Lease or otherwise relating to the Premises
or the Shopping Center shall be enforceable only against Landlord's right, title
and interest in the Shopping Center, and no other property of Landlord, any
successor or assign of Landlord, any partner of Landlord, or any partner of any
successor or assign of Landlord, shall be subject to such claim, demand or cause
of action.
26.22 To the extent that the Special Stipulations set forth in Exhibit
"D" attached hereto and made a part thereof conflict with any of the printed
provisions of this Lease, such Special Stipulations shall control.
26.23 Relocation Clause: If Landlord determines to utilize the leased
premises for other purposes during the term of this lease, Tenant agrees to
relocate to other space in the property designated by Landlord, provided such
other space is of equal or larger size than the leased premises. Landlord shall
pay all out-of-pocket expense of such relocation, including the expense of
moving and reconstruction of all Tenant furnished and Landlord furnished
improvements. In the event of such relocation, this lease shall continue in fall
force and effect without any change in the terms or conditions of this lease,
but with the new location substituted for the old location set forth in Section
1.2 of the lease.
28
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
under seal as of the day and year first above written.
LANDLORD:
BUTTONWOOD INVESTMENTS, INC.
a Texas Corporation
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
By: _______________________________
TENANT:
By: ______________________________
▇▇▇▇ ▇▇▇▇
Accurate Business Forms, Inc.
Witness: ___________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
29
EXHIBIT "A"
LEGAL DESCRIPTION
Land in the Twenty Fifth Civil District of ▇▇▇▇▇▇ County, Tennessee and being
shown on a boundary survey of a Portion of Clearview Plaza of record in Plat
Book 11, page 45, R.O.W.C., Tn. and being described According to a survey by J.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, #▇▇▇ dated June 3, 1987 and known as job No. 87-375 more
particularly described as follows:
Beginning at an iron pin set on the northerly margin of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, said point of beginning being the Southwest ▇▇▇▇▇ of the herein
described tract and also being the Southeast corner of the First Federal Savings
and Loan property of record in Deed Book 238, page 444, Register's Office,
▇▇▇▇▇▇ County, Tennessee, said point of beginning also being 391.16'
Southeasterly from a concrete monument at the intersection of the said Mt.
Juliet Road and the Old Lebanon & Nashville Road; thence leaving the margin of
Mt. Juliet Road and with easterly line of said First Federal Savings & Loan
property N49'34'30"E 330. 10' to an iron pin set, said iron pin being 521.94'
easterly from the said concrete monument at the intersection of said Mt. Juliet
Road and the Old Lebanon & Nashville Road; thence with the southerly margin of
Old Lebanon & Nashville Road and leaving the First Federal Savings & Loan
property S81'56'14"E 593.64' to an iron pin; thence with a turnout curve to the
right having a radius of 103.76' and a long chord of 144.00', said chord having
a bearing of S37'59'45"E a distance along the curve of 159.15' to an iron pin on
the westerly margin of the Old Mount Juliet Road (also known as Cedar Drive);
thence with the westerly margin of Cedar Drive S05'56'46"W 835.64' to an iron
pin; thence continuing with said ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇'▇▇'▇▇"▇ 159.00' to and iron
pin; thence S72'49'34"W 61.59' to, an iron pin set on the easterly margin of the
said ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇); thence with the easterly or
northeasterly margin of Mount Juliet Road and a curve to the left having a
radius of 1482.40' and a long chord of 582.32', said chord having a bearing of
N31'25'03"W a distance along the curve of 586.13' to an iron pin; thence
continuing with the margin of said ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇,▇▇,▇▇"▇ 157.68 to a
railroad spike; thence leaving the margin of said Mt. Juliet Road (State Route
171) and with the line of the Lebanon Bank property of record in Deed Book 257,
page 236, R.O.W.C., Tn. N47'15'19"E 180.00' to a railroad spike; thence
continuing with the said Lebanon Bank property N42'44'41 "W 160.00' to a
railroad spike; thence continuing with the same S47'15'19"W 180.00' to an iron
pin set on the northeasterly margin of the said ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇
▇▇▇); thence with the margin of said road N42'44'41"W 352.66' to the point of
beginning, containing 12.577 acres more or less.
Being the same property conveyed to Clearview Limited Partnership, and Indiana
Limited Partnership, by Quit Claim Deed of record in Deed Book 392, page 392,
page 891, Register's Office, WilsonCounty, Tennessee.
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EXHIBIT "C"
LANDLORD'S ARCHITECTURAL AND CONSTRUCTION WORK
Landlord shall replace carpet and base at $12.00/SY installed, paint throughout,
replace stained ceiling tiles, and remove three power poles if desired by
Tenant.
Tenant shall be responsible for telephone and computer cabling and for signage.
Tenant shall also be responsible reeking its Demised Premises. Notwithstanding
anything contained in this lease to the contrary Tenant agrees that all work to
be performed at the Demised Premise other than that described above shall be at
Tenant's sole expense. Tenant agrees to inform Landlord in writing of any
construction work and to perform all work in a first class manner and according
to local building codes.
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EXHIBIT "D"
Intentionally Omitted.
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EXHIBIT "E"
RULES AND REGULATIONS
1. Lessee will refer all contractor's representatives and installation
technicians rendering any service on or to the leased premises for Lessee, to
Lessor for Lessor's approval and supervision before performance of any
contractual service. This provision shall apply to all work performed on or
about the leased premises or project, including installation of telephones,
telegraph equipment, electrical devices and attachments and installations of any
nature affecting floors, walls, woodwork, trim, windows, ceilings and equipment
or any other physical portion of the leased premises or project.
2. Lessee shall not at any time occupy any part of the leased premises or
project as sleeping or lodging quarters.
3. Lessee shall not place, install or operate on the leased premises or in any
part of the building, any engine, stove or machinery, or conduct mechanical
operations or ▇▇▇▇ thereon or therein, or place or use in or A out the leased.
premises or project any explosives, gasoline, kerosene, oil, acids, caustics, or
any flammable, explosive or hazardous material without written consent of
Lessor,
4. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the leased premises or the project regardless
of whether such loss occurs when the area is locked against entry or not.
5. No dogs, cats, fowl or other animals shall be brought into or kept in or
about the leased premises or project.
6. Employees or Lessor shall not receive or carry messages for or to any Lessee
or other per-son, nor contract with or render free or paid services to any
Lessee or Lessee's agents, employees or invitees.
7. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways shall be blocked or obstructed, or any
rubbish, litter, trash, or material of any nature placed, emptied or thrown into
these areas or such area used by Lessee's agent, employees or invitees at any
time for purposes inconsistent with their designation by Lessor,
8. The water closets and other water fixtures shall not be used for any purpose
other than those for which they were constructed, and any damage resulting to
them from misuse, or by the defacing or injury of any part of the building shall
be borne by the person who shall occasion it. No person shall waste water by
interfering with the faucets or otherwise.
9. No person shall disturb occupants of the building by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises, or any unreasonable use.
10. Nothing shall be thrown out of the windows of the building or down the
stairways or other passages.
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11. Lessee and its employees, agents and invitees shall park their vehicles only
in those parking areas designated by Lessor. Lessee shall furnish Lessor with
state automobile license numbers of Lessee's vehicles within five days after
taking possession of the leased premises and shall notify Lessor of any changes
within five days after such change occurs. Lessee shall not leave any vehicle in
a state of disrepair (including without limitation, flat tires, out of date
inspection stickers or license plates on the leased premises or project. If
Lessor or its employees, agents or invitees park their vehicles in areas other
than the designated parking areas or leave any vehicle in a state of despair,
Lessor, after giving written notice to Lessee of such violations, shall have the
right to remove such vehicles at Lessee's expense.
It is Lessor's desire to maintain in the building or project the highest
standard of dignity and good taste consistent with comfort and convenience for
Lessees. Any action or condition not meeting this high standard should be
reported directly to Lessor. Your cooperation will be mutually beneficial and
sincerely appreciated. Lessor reserves the right to make such other and further
reasonable rules and regulations as in its judgement may from time to time be
necessary, for the safety, care and cleanliness of the leased premises, and for
the preservation of good order therein.
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EXHIBIT "F"
SIGN CRITERIA
The necessity for establishing certain basic guidelines which must be followed
by both tenant and sign companies serves a two-fold purpose. First, it will
protect you, the Tenant, in obtaining a sign which meets standards of good
design and workmanship. Secondly, it helps to assure a pleasing and attractive
shopping center, unmarred by poorly designed, badly proportioned signing. Good
sign design and balance is. necessary to maintain an attr4ctive and successful
shopping center.
The most attractive and economically successful shopping centers are those which
have insisted upon sign control. This SIGN CRITERIA should be given to your sign
company to serve as a guide in preparing their design and cost estimates for
your approval.
MAIN PYLON SIGN:
Each anochor tenant is provided signage space on the main pylon sign. Space
allocated is 5' x 12' double sided and internally illuminated. Signage is
limited to the first four (4) anchor tenants.
Tenant is responsible for the cost of the design, artwork, fabrication, and
installation of the acrylic face. Faces must be pan-formed 3/16" acrylic and
fabricated in two continuous 5' x 6' sheet of sacrylic. Tenant is responsible
for the maintaining of interior lighting and wiring of sign. Sign must be kept
in good working order at all time. Any burned out tubes or lighting problems
must be repaired in 5 days. Any damaged, cracked, or broken faces must be
repaired or replaced in 15 days.
Drawing of proposed sign faces with color callouts must be approved by Landlord.
SIGN BAND:
We have provided a sign band which each in-line tenant may use. It is the
tenant's responsibility to have a plan drawn and approved by the Landlord. All
cost in sign preparation shall be the tenant's responsibility.
A. The use of a corporate crest, logo, or insignia shall be permitted as long as
they meet the described border criteria.
B. The height of all characters shall not exceed 24", if the copy is in one
line. If the copy is 9 in two lines the copy shall not exceed 12" in height. No
character or symbol shall fall within 3 of the top or bottom of the sign band.
C. The maximum length of each full bay tenant sign shall not exceed 80% of the
tenant's allowable space allocated. The maximum length of each on half bay
tenant sign shall not exceed 90% of the tenant's allowable space allocated.
D. The letters and/or logo of the company is to be routed out of the metal
material in the sign band.
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E. The name of the company's space shall be backed with white plexiglass, stud
mounted to metal. Other colors shall be permitted for slogans or signias at the
Landlord's approval.
F. Back lighting of routed copy is encouraged but must meet with National
Electric Code Requirements, all equipment shall feature the Underwriter's
Laboratory labels. The back lighting in cabinets shall be limited to no more
than 2 rows of 800 MA high output fluorescent lamps.
G. The approved sign company is A-1 Sign Co., Inc., Dickson, Tennessee. Any
other sign company desired must be approved by Landlord.
MALL TENANT SIGNAGE:
A. The letter height shall not exceed 8".
B. The overall size of the sign shall not exceed 30" high by 10' long, or 70% of
the space above the store front allocated for signage.
C. Sign is to be fabricated as follows: Non illuminated manufactured plastic
formed letters (Gemini brand or equal). Letter style to be selected from 3
approved styles, Standardized Helvetica round faced Roman or italicized script
only. Any other letter style must be approved in writing.
D. Colors of letters to be Gemini No. 2030 Dark Green or comparable match to be
approved by Landlord.
E. All signage to be installed in approximately 4' x 15' are over shop frontage
inside mall.
F. Installation: Letter should be stud mounted directly on to wall over store
front. Spacing template should be used to assure an even spaced and professional
appearance.
G. Mall tenants are provided 18" x 4' tenant panel spaces on street, Mall
Identification sign. Each tenant is responsible for cost of lettering their own
panels. Design and color and location to be approved by Landlord.
The basic criteria governing signs are as follows:
There shall be no flashing action or other mechanical animation allowed
on Tenant signs.
Tenant signs must be kept clean and in good operating condition. We
recommend that you develop a maintenance program, through your sign
company, to assure that your sign will always appear inviting to your
customers and enhance the overall appearance of the center. Good
signage is a business investment that will not only identify you, but
should also give you many good returns.
No other signs (mobile or stationary) shall be displayed on the
Premises without the prior written consent of Landlord.
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