Exhibit 10.92
City ▇▇▇▇▇ Lease
LEASE
TOYS INTERNATIONAL, INC., a California corporation
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Tenant
TOYS INTERNATIONAL
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Trade Name
N/A
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Guarantor
City ▇▇▇▇▇ at Orange
TABLE OF CONTENTS
Page
ARTICLE I.........................................................................................................4
GRANT AND TERM...........................................................................................4
Section 1.1 Leased Premises....................................................................4
Section 1.2 Term...............................................................................5
Section 1.3 Opening............................................................................6
Section 1.4 Late Opening.......................................................................6
ARTICLE II........................................................................................................7
RENT AND DEPOSIT.........................................................................................7
Section 2.1. Minimum Rent......................................................................7
Section 2.2. Percentage Rent...................................................................7
Section 2.3. Payments By Tenant................................................................8
Section 2.4. Security Deposit. [Intentionally Deleted] 9
Section 2.5. Late Charge.......................................................................9
ARTICLE III.......................................................................................................9
PREPARATION OF LEASED PREMISES...........................................................................9
Section 3.1. Landlord's Work...................................................................9
Section 3.2. Delivery of Possession............................................................9
Section 3.3. Tenant's Work....................................................................10
Section 3.4. Alterations by Tenant............................................................11
Section 3.5. Removal by Tenant................................................................12
ARTICLE IV.......................................................................................................12
CONDUCT OF BUSINESS.....................................................................................12
Section 4.1. Use and Trade Name...............................................................12
Section 4.2. Operation of Business............................................................12
Section 4.3. Sign.............................................................................13
Section 4.4. Tenant's Warranties..............................................................13
Section 4.5. Storage and Office Space.........................................................14
Section 4.6. Care of Premises.................................................................14
Section 4.7. Notice by Tenant.................................................................14
Section 4.8. Radius...........................................................................14
ARTICLE V........................................................................................................15
COMMON AREA.............................................................................................15
Section 5.1. Use of Common Area...............................................................15
Section 5.2. Common Area Maintenance Expenses.................................................15
ARTICLE VI.......................................................................................................17
REPAIRS AND MAINTENANCE.................................................................................17
Section 6.1. Repairs and Maintenance by Landlord..............................................17
Section 6.2. Repairs and Maintenance by Tenant................................................17
ARTICLE VII......................................................................................................18
TAXES ...............................................................................................18
Section 7.1. Tax Liability....................................................................18
Section 7.2. Method of Payment................................................................19
Section 7.3. Sales Tax Reports................................................................19
ARTICLE VIII.....................................................................................................19
INSURANCE, INDEMNITY AND LIABILITY......................................................................19
Section 8.1. Landlord's Insurance Obligations.................................................19
Section 8.2. Tenant's Insurance Obligations...................................................20
Section 8.3. Mutual Covenant..................................................................21
Section 8.4. Covenant to Hold Harmless........................................................21
Section 8.5. Loss and Damage..................................................................22
ARTICLE IX.......................................................................................................22
DESTRUCTION OF LEASED PREMISES..........................................................................22
Section 9.1. Continuance of Lease.............................................................22
Section 9.2. Reconstruction...................................................................23
ARTICLE X........................................................................................................23
CONDEMNATION............................................................................................23
Section 10.1. Eminent Domain..................................................................23
Section 10.2. Rent Apportionment..............................................................24
Section 10.3. Temporary Taking................................................................24
ARTICLE XI.......................................................................................................24
ASSIGNMENT, SUBLETTING AND ENCUMBERING LEASE............................................................24
Section 11.1. No Assignment, Subletting or Encumbering of Lease 24
Section 11.2. Assignment or Sublet............................................................26
Section 11.3. Transfer of Landlord's Interest.................................................26
ARTICLE XII......................................................................................................26
SUBORDINATION, ATTORNMENT, FINANCING AND ESTOPPEL CERTIFICATE 26
Section 12.1. Subordination...................................................................26
Section 12.2. Attornment......................................................................27
Section 12.3. Financing.......................................................................27
Section 12.4. Estoppel Certificate............................................................27
Section 12.5. Remedies........................................................................28
ARTICLE XIII.....................................................................................................28
ADVERTISING AND PROMOTION...............................................................................28
Section 13.1. Promotion Fund..................................................................28
Section 13.2. Promotion Fund Contribution.....................................................28
Section 13.3. Advertisements..................................................................28
Section 13.4. Network.........................................................................28
ARTICLE XIV......................................................................................................29
DEFAULT AND REMEDIES....................................................................................29
Section 14.1. Elements of Default.............................................................29
Section 14.2. Landlord's Remedies.............................................................30
Section 14.3. Bankruptcy......................................................................31
Section 14.4. Additional Remedies and Waivers.................................................31
Section 14.5. Landlord's Cure of Default......................................................31
ARTICLE XV.......................................................................................................31
RIGHT OF ACCESS.........................................................................................31
ARTICLE XVI......................................................................................................32
DELAYS ...............................................................................................32
ARTICLE XVII.....................................................................................................32
END OF TERM.............................................................................................32
Section 17.1. Return of Leased Premises.......................................................32
Section 17.2. Holding Over....................................................................32
ARTICLE XVIII....................................................................................................33
COVENANT OF QUIET ENJOYMENT.............................................................................33
ARTICLE XIX......................................................................................................33
UTILITIES...............................................................................................33
Section 19.1. Utilities.......................................................................33
Section 19.2. Electricity, Telephone and Gas..................................................33
Section 19.3. Trash and Garbage Removal.......................................................34
Section 19.4. Water and Sewer.................................................................34
Section 19.5. Grease Interceptors.............................................................34
ARTICLE XX.......................................................................................................34
MISCELLANEOUS...........................................................................................34
Section 20.1. Entire Agreement...............................................................34
Section 20.2. Notices........................................................................34
Section 20.3. Governing Law..................................................................35
Section 20.4. Successors.....................................................................35
Section 20.5. Liability of Landlord..........................................................35
Section 20.6. Brokers........................................................................35
Section 20.7. Transfer by Landlord...........................................................35
Section 20.8. No Partnership.................................................................35
Section 20.9. Waiver of Counterclaims........................................................35
Section 20.10. Waiver of Jury Trial...........................................................35
Section 20.11. Severability...................................................................36
Section 20.12. No Waiver......................................................................36
Section 20.13. Consumer Price Index...........................................................36
Section 20.14. Interest.......................................................................36
Section 20.15. Excavation.....................................................................36
Section 20.16. Rules and Regulations..........................................................36
Section 20.17. Financial Statements...........................................................36
Section 20.18. General Rules of Construction..................................................36
Section 20.19. Recording......................................................................37
Section 20.20. Effective Date.................................................................37
Section 20.21. Headings.......................................................................37
Section 20.22. Managing Agent.................................................................37
Section 20.23. Non-Discrimination.............................................................37
Section 20.24. Lease Contingency..............................................................37
EXHIBITS:
Exhibit A Site Plan
Exhibit B Measurement of Leased Premises
Exhibit C Landlord's Work
Exhibit D Tenant's Work
Exhibit E Sign Criteria
Exhibit F Commencement and Expiration Date Declaration
Exhibit G Waiver of Sales Tax Confidentiality
Exhibit H Subordination, Non-Disturbance and Attornment Agreement
A Retail Development
THIS LEASE dated as of this ____ day of ________________, 19___ (the
"Lease") by and between ORANGE CITY ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware
limited partnership, the address of which is c/o The ▇▇▇▇▇ Corporation, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
as "Landlord") and TOYS INTERNATIONAL, INC., a California corporation, the
address of which is ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Tenant").
R E C I T A L
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord, the Leased Premises, for the Term commencing on the Commencement Date,
subject to the terms, covenants, conditions and provisions of this Lease.
Landlord shall have the right, at any time prior to the Delivery of Possession
Date of the Leased Premises, by written notice to Tenant, to relocate the Leased
Premises in either direction (from side to side from the outside boundary of the
Leased Premises) by not more than forty (40) feet, and upon any such relocation,
the size and description of the Leased Premises shall be appropriately modified
to reflect any resulting proportional adjustment in the Rent based upon the
change in size of the Leased Premises. If the Commencement Date is not the first
day of a month, Minimum Rent for the month in which the Commencement Date occurs
shall be prorated to the end of the month and paid as the second monthly
installment of Minimum Rent on the first day of the next month and, after the
expiration of the number of years in the Term, the Term shall expire on the last
day of the same month in which the Commencement Date of the Term occurred, it
being the intention of the parties that the Term expire on the last day of a
month. Neither this Lease nor the obligations of Tenant hereunder shall be
affected by a postponement and Landlord shall not be subject to any liability
for failure to make possession of the Leased Premises available on the
Commencement Date. When the Commencement Date has been determined, Landlord and
Tenant shall execute, acknowledge and deliver a written statement in recordable
form specifying the Commencement and Expiration Dates of the Term and, if there
shall have been any changes in the floor area of the Leased Premises, such
statement shall reflect such change or changes. Said statement upon execution
and delivery shall be deemed to be a part of this Lease.
DATA SHEET
The following references furnish data to be incorporated in the
specified Sections of this Lease and shall be construed to incorporate all of
the terms of the entire Section as stated in this Lease:
(1) Section 1.1: Description of Leased Premises:
Store number: 207, consisting of approximately 9,400 square feet of
floor area as shown on Exhibits A and B attached hereto and made a part hereof.
(2) Section 1.2: Term:
Commencement Date:
The earlier of (i) Grand Opening, (ii) the date following the
expiration of a seventy-five (75) day fixturing period ("Fixturing Period")
following the Delivery of Possession Date (as defined in Section 3.2), or (iii)
the date the Leased Premises is open for business to the public.
Original Term: Ten (10) years, plus that additional period necessary to
extend the expiration date to the January 31st immediately following the
expiration of ten (10) years..
(3) Section 2.1: Minimum Rent:
From the Commencement Date and continuing through the third (3rd) year
of the Original Term, the sum of $225,600.00 annually ($24.00 psf), payable in
equal consecutive monthly installments of $18,800.00 each;
Beginning with the fourth (4th) year and continuing through the fifth
(5th) year of the Original Term, the sum of $235,000.00 annually ($25.00 psf),
payable in equal consecutive monthly installments of $19,583.33 each;
Beginning with the sixth (6th) year and continuing through the
expiration of the Original Term, the sum of $291,400.00 annually ($31.00 psf),
payable in equal consecutive monthly installments of $24,283.33 each.
(4) Section 2.2: Percentage Rent:
Percentage Factor: 6%
Sales Break Point for the Original Term:
From the Commencement Date through the third (3rd) year of the Original
Term: $3,760,000.00.
Beginning with the fourth (4th) year and continuing through fifth (5th)
year of the Original Term: $3,916,666.67.
Beginning with the sixth (6th) year and continuing through the expiration
of the Original Term: $4,856,666.67.
(5) Section 2.4: Security Deposit: N/A
(6) Section 4.1: Permitted Use:
Tenant shall use the Leased Premises for the use set forth below and for no
other purpose:
For the retail sale of toys and toy related merchandise. In no event shall
Tenant's primary use be (i) stuffing or making stuffed bears or (ii) the sale of
plush animals.
Trade Name: Toys International
(7) Section 13.2: Fund Contribution: $1.00 per square foot of floor area
of the Leased Premises.
Grand Opening Fee (Initial Contribution): $7,500.00
(8) Guarantor: N/A
(9) Grand Opening Date: November, 1998
(10) Temporary Charges: Actual charges for temporary services described in
Exhibit D not to exceed $1.00 per square foot of floor area of the
Leased Premises.
(11) Construction Chargebacks: N/A
(12) Tenant Allowance: $250,000.00
ARTICLE I
GRANT AND TERM
Section 1.1 Leased Premises. (a) Landlord, in consideration of the Rent (as
defined in Section 2.3) to be paid and the covenants to be performed by Tenant,
does hereby lease and demise to Tenant, and Tenant hereby rents and hires from
Landlord for the Term herein set forth, the Leased Premises which are described
as set forth in the Data Sheet attached hereto, in the retail development
designated as City ▇▇▇▇▇ At Orange or by such other name as Landlord may from
time to time hereafter designate (hereinafter "Retail Development"). The term
"State" as used herein shall mean the State or Commonwealth of California. For
all purposes in this Lease, a "Major Tenant" is any occupant of 20,000 square
feet or more of floor area in the Retail Development and a "Major Tenant Space"
is any space in the Retail Development containing 20,000 square feet or more. It
is agreed that, wherever the term "Shopping Center" is used herein, it shall
mean the Retail Development excluding the Major Tenant Spaces, except as
otherwise specifically stated herein. Exhibit A sets forth the general layout of
the Retail Development. Landlord does not warrant or represent that the Retail
Development or the Leased Premises will be constructed exactly as shown thereon
or that it will be completed by a specific date. Notwithstanding anything
contained in this Lease to the contrary, Landlord shall have the right, at any
time and from time to time, without notice to or consent of Tenant, and without
in any manner diminishing Tenant's obligations under this Lease, to make
alterations or additions to, and build additional stories on the building in
which the Leased Premises are located and to build adjoining the same, to
construct other buildings and improvements of any type in the Retail Development
or the common areas, or any part thereof, including the right to locate and/or
erect thereon permanent or temporary kiosks and structures, to enlarge the
Retail Development, and to make alterations therein or additions thereto, to
build additional stories on any building or buildings within the Retail
Development, and to build adjoining thereto, to construct decks or elevated
parking facilities and free standing buildings within the parking lot areas of
the Retail Development, and to change the size, location, elevation and nature
of any of the stores in the Retail Development or the common areas, or any part
thereof. In the event Landlord elects to enlarge the Retail Development, or any
part thereof, any additional area may be included by Landlord in the definition
of the Retail Development for purposes of this Lease. Landlord shall also have
the general right from time to time to include within and/or to exclude from the
defined Shopping Center any existing or future areas and the floor area of the
Shopping Center shall be accordingly adjusted. The premises leased to Tenant are
herein referred to as the "Leased Premises". The approximate location of the
Leased Premises is cross-hatched on the lease plan of the Retail Development
attached hereto and made a part hereof as Exhibit A. This Lease of the Leased
Premises is subject to all applicable building restrictions, planning and zoning
ordinances, governmental rules and regulations, existing underlying leases, and
all other encumbrances, covenants, restrictions, easements and agreements
affecting the Retail Development and the terms and provisions of certain master
declaration, reciprocal easement and operating agreements now or hereafter
entered into by Landlord.
Subject to the provisions of Section 5.1, Tenant shall enjoy a
non-exclusive easement, right and privilege for Tenant and its customers,
employees and invitees and the customers, employees and invitees of any
assignee, sublessee, concessionaire or licensee of Tenant, to use the common
areas of the Shopping Center, with Landlord and the other tenants and occupants
of floor area within the Shopping Center and their respective customers,
employees and invitees. Furthermore, Landlord agrees that any additions,
alterations or modifications to the Shopping Center by Landlord shall not
adversely affect access to, or visibility of the Leased Premises and, except as
otherwise provided for herein, Tenant shall retain substantially the same
relative position with respect to Major Tenants of the Shopping Center as of the
Commencement Date.
(b) After the Delivery of Possession Date (as defined in Section 3.2),
Landlord reserves the right to relocate Tenant. Landlord shall provide Tenant
with not less than thirty (30) days written notice of such relocation (the
"Relocation Period") during which Landlord shall offer to Tenant such
alternative location(s) (with approximately the same floor area) as may be
available. In the event the parties agree on a specific location, then this
Lease shall be amended by substituting the new location for the present location
and the square footage, Minimum Rent and Sales Break Point shall be
proportionately adjusted based upon the change in the size of the Leased
Premises. Landlord shall, at Landlord's cost and expense, complete the leasehold
improvements to the new location in accordance with the working drawings
originally approved by Landlord with respect to Tenant's Work in the original
Leased Premises and Tenant shall relocate to the new location and, within
fifteen (15) days after delivery of the new location to Tenant, open for
business in the new location ("Relocation Date"). In the event Landlord and
Tenant are unable to agree on an alternative location, this Lease shall
terminate at the end of the said thirty (30) day period ("Termination Date"). In
the event of such termination, Landlord shall pay to Tenant, within thirty (30)
days following the Termination Date, a sum equal to the then unamortized cost of
Tenant's leasehold improvements which have been paid for by Tenant, such
amortization to be on a straight line basis over the Original Term, provided
Tenant shall furnish to Landlord such backup information as Landlord may
reasonably require. Tenant shall deliver possession of the Leased Premises to
Landlord on or before the Termination Date and/or the Relocation Date in "as is"
condition excepting the provisions of Sections 3.5 and 17.1. Tenant shall pay
all charges which are due and owing or which shall accrue up to such Termination
Date or Relocation Date (which charges shall be paid to Landlord within thirty
(30) days of such Termination Date or Relocation Date) and Tenant shall be
released from any and all further obligations pursuant to this Lease accruing
after such Termination Date or Relocation Date with respect to the vacated
Leased Premises, except as otherwise provided in Articles V and VII; however, in
the event of relocation, Tenant shall remain liable for all obligations accruing
under this Lease after the Relocation Date.
(c) The square footage of the Leased Premises (sometimes herein
referred to as the gross leasable floor area or GLA) shall be measured as
defined in Exhibit B. The actual square footage in the Leased Premises shall be
determined by Landlord's architect. The certificate of Landlord's architect as
to actual square footage shall be binding upon both parties hereto, and such
determined square footage shall be used in all calculations based on square
footage throughout this Lease. If the floor area determined in accordance with
the preceding sentence varies from the square foot floor area originally set
forth in the Data Sheet, the Minimum Rent set forth in Section 2.1 hereof shall
be adjusted by multiplying the Minimum Rent by a fraction, the numerator of
which is the square foot floor area determined by Landlord's architect and the
denominator of which is the square foot floor area originally set forth in the
Data Sheet, and Tenant shall be obligated to pay such Minimum Rent, as adjusted,
from the Commencement Date, subject to further adjustments as provided in this
Lease. Each monthly installment provided for in Section 2.1 shall be recomputed
and shall be that dollar amount which results from dividing the adjusted Minimum
Rent by twelve (12). Any and all references in this Lease to Minimum Rent (or
the monthly installments thereof) shall be deemed to be references to the
Minimum Rent as computed by application of this Section 1.1, subject, however,
to the adjustments set forth elsewhere in this Lease. For purposes of this
Lease, in determining the gross leasable floor area or the gross leased and
occupied floor area of the Shopping Center, there shall be excluded therefrom
project areas and offices, common areas and/or areas under Landlord's control
(e.g., electrical/utility rooms, etc.). The exterior walls, roof, storefront and
the area beneath the Leased Premises are not demised hereunder, and the use
thereof, together with the right to install, maintain, use, repair and replace
pipes, ducts, conduits, wires, tunnels, sewers and structural elements leading
through the Leased Premises in locations which will not materially interfere
with Tenant's use thereof and serving other parts of the Retail Development are
hereby reserved to Landlord. Landlord reserves an easement above Tenant's
finished ceiling or light line to the roof for general access purposes and in
connection with the exercise of Landlord's other rights under this Lease.
Section 1.2 Term. The Term of this Lease shall be for a period
commencing on the Commencement Date, and expiring at 11:59 p.m. local time on
the final day of the month in which the Original Term or the Option Period, if
exercised, expires or other specified date as set forth in the Data Sheet,
unless sooner terminated in accordance with the provisions hereof (the
"Expiration Date"). Unless otherwise specified in this Lease, the use of the
word "Term" shall be deemed to include both the Original Term and the Option
Period, if exercised. The term "full year" and "year" as used in this Lease
shall mean consecutive periods of twelve (12) months each following the
Commencement Date. For all purposes of this Lease, the term "Lease Year" shall
have the following meaning: the first Lease Year shall be a period beginning
with the Commencement Date and ending on the 31st day of December next following
the Commencement Date, and after the first Lease Year, the term Lease Year shall
mean a fiscal period of twelve (12) consecutive calendar months commencing on
January 1 of each calendar year, except that the last Lease Year shall terminate
on the Expiration Date or sooner termination of this Lease. Lease Years
containing 365 days or more shall be referred to as "full Lease Years." If the
Leased Premises are not delivered to Tenant on or before the expiration of
thirty-six (36) months after the date of Landlord's execution of this Lease then
either party may cancel and terminate this Lease upon sixty (60) days prior
written notice to the other, in which event neither party shall have any further
obligation or liability to the other; provided, however, that if Landlord has
commenced construction of the Shopping Center, then Tenant shall not be
permitted to terminate in the foregoing manner. Following the Commencement Date
of this Lease, Landlord may submit to Tenant a Commencement and Expiration Date
Declaration in the form attached hereto as Exhibit F, specifying the information
called for in said form, and Tenant shall execute such Declaration within thirty
(30) days following submission for purposes of certifying such information;
provided, however, that the Declaration shall not be rendered ineffective by
Tenant's failure to execute same.
Notwithstanding the foregoing, in the event Tenant does not achieve
Gross Sales (as hereinafter defined) of at least Two Hundred Thirty and
00/100ths Dollars ($230.00) per square foot during the third (3rd) full Lease
Year of the Term hereof, then Landlord and Tenant, for a period of sixty (60)
days following the end of the third (3rd) full Lease Year, each shall have the
option, upon one hundred eighty (180) days prior written notice to the other
party, of terminating this Lease ("Termination Option") provided, however, that
Tenant shall not be entitled to terminate this Lease if Tenant shall have been,
or is, in default of this Lease. In the event Tenant fails to submit a certified
report of annual Gross Sales within the time period required pursuant to Section
2.2 of this Lease, then Landlord shall use such information as Landlord shall
have available to permit Landlord to make a determination as to the amount of
Gross Sales achieved by Tenant during the period covered by Landlord's option to
terminate and such information shall be the basis for Landlord exercising its
Termination Option and Tenant shall not be permitted to reinstate this Lease
after termination for any reason or cause whatsoever, including, but not limited
to, the submittal by Tenant of a subsequent sales report either certified or
uncertified. In the event that neither party exercises its Termination Option
within the required time period, then each such Termination Option shall, upon
expiration of the applicable period, become null and void and be of no further
force or effect. In the event either party exercises the foregoing Termination
Option within the required time period, this Lease shall terminate upon
expiration of the one hundred eighty (180) day period subject, however, to the
payment by Tenant to Landlord of all sums then due and owing or having accrued
to Landlord. In the event that Tenant exercises the Termination Option provided
for herein, Tenant shall pay to Landlord the unamortized portion of the
Construction Allowance (as hereinafter defined).
Section 1.3 Opening. Tenant covenants and agrees to complete its
construction within the Leased Premises in accordance with the provisions of
this Lease, to satisfy the requirements for issuance of a certificate of
acceptance pursuant to Exhibit D attached hereto and made a part hereof, and to
open its store for business to the public not later than the Commencement Date.
Notwithstanding the foregoing, Landlord hereby notifies Tenant that the
anticipated date of the grand opening of the Shopping Center (the "Grand
Opening") is the date set forth on the Data Sheet, and Tenant shall be obligated
to open its store for business to the public on such date or such other date as
Landlord may establish from time to time for the Grand Opening upon written
notice to Tenant. Tenant shall not be permitted to open for business to the
public prior to the Grand Opening without the prior written consent of Landlord
which consent shall be at Landlord's sole discretion.
Section 1.4 Late Opening. Except for delays, as described in Article
XVI and provided that Tenant has been given the seventy-five (75) day Fixturing
Period, in the event Tenant shall fail to open its store for business to the
public upon the Commencement Date, then in order to compensate Landlord for its
loss, Tenant shall pay to Landlord as additional rent (as defined in Section
2.3) over and above the Minimum Rent and all other charges to be paid by Tenant
to Landlord pursuant to this Lease, a sum in an amount equal to One Hundred and
00/100ths Dollars ($100.00) per day for the Commencement Date and each day after
the Commencement Date that Tenant shall have failed to open its store for
business. This remedy shall be in addition to any and all other remedies
provided for in this Lease in the event of such failure to open. Such additional
late opening rent shall be deemed to be in lieu of any Percentage Rent that
might have been earned during the period of Tenant's failure to open.
Section 2.1. Minimum Rent. During the entire Term of this Lease, Tenant
shall pay annual minimum rental ("Minimum Rent") for the Leased Premises from
the Commencement Date of this Lease in the amount set forth in the Data Sheet
attached hereto, which sum shall be payable by Tenant in equal consecutive
monthly installments in the sum set forth in the Data Sheet attached hereto, on
or before the first day of each month, in advance. The Minimum Rent and each of
the monthly installments called for hereunder shall be payable to Landlord,
without demand, deduction, set-off or counter-claim. The first installment of
Minimum Rent shall be paid by Tenant within ten (10) days of Tenant's receipt of
Landlord's notice of the Delivery of Possession Date. If the Commencement Date
occurs on other than the first day of a month, the second installment of Minimum
Rent shall be prorated at a daily rate on the basis of a thirty (30) day month.
Section 2.2. Percentage Rent. (a) During and for each Lease Year,
Tenant shall pay annual percentage rent ("Percentage Rent") equal to the
Percentage Factor (see Data Sheet) multiplied by all "Gross Sales" resulting
from business conducted in, on or from the Leased Premises during such Lease
Year in excess of the applicable Sales Break Point set forth in the Data Sheet.
In any Lease Year where there is more than one applicable Sales Break Point, for
purposes of computing annual Percentage Rent the following calculation shall be
used: each Sales Break Point which was effective during any such Lease Year
shall be multiplied by a fraction, the numerator of which is the number of days
in the Lease Year that such Sales Break Point was effective and the denominator
of which is the actual number of days in such Lease Year (herein the "Adjusted
Break Point") and the sum of the Adjusted Break Points shall be the Sales Break
Point for such Lease Year. "Gross Sales" is defined to mean the total amount of
the actual sales price, whether for cash or otherwise, of all sales of
merchandise or services arising out of or payable on account of (and all other
receipts or amounts receivable whatsoever with respect to) all the business
conducted in, on, or from the Leased Premises by or on account of Tenant or any
sublessee, assignee or concessionaire of Tenant for cash or otherwise, including
all orders for merchandise taken from or filled at or from the Leased Premises,
including all deposits not refunded to customers. A "sale" shall be deemed to
have been consummated for purposes of this Lease, and the entire amount of the
sale price shall be included in Gross Sales, at such time as (i) the transaction
is initially reflected in the books or records of Tenant, or any sublessee,
assignee or concessionaire of Tenant, or (ii) Tenant or such other entity
receives all or any portion of the sales price, or (iii) the applicable goods or
services are delivered to the customer, whichever first occurs, irrespective of
whether payment is made in installments, the sale is for cash or credit or
otherwise, or all or any portion of the sales price has actually been paid at
the time of inclusion in Gross Sales or at any other time. Tenant shall record
at the time of each sale or transaction, in the presence of the customer, all
receipts from such sale or other transaction, whether for cash, credit or
otherwise, in a cash register or cash registers having a cumulative total, which
shall be sealed in a manner approved by Landlord and which shall possess such
other features as shall be required by Landlord. There shall be no deduction
allowed for direct or indirect discounts, rebates, or other reductions on sales,
unless generally offered to the public on a uniform basis. Tenant may deduct
from Gross Sales discount sales to employees, bad debts when written off the
books of Tenant and charges paid to credit card companies provided, however,
that in the aggregate such deductions do not exceed three percent (3%) of Gross
Sales in any Lease Year. Tenant may also exclude from Gross Sales any transfer
of goods between Tenant's other stores and returns to shippers or manufacturers.
The term "Gross Sales" shall exclude, however, proceeds from any sales tax,
gross receipts tax or similar tax, by whatever name called which are separately
stated and in addition to the purchase price, bona fide transfers of merchandise
from the Leased Premises to any other stores or warehouses of Tenant, refunds
given to customers for merchandise purchased at the Leased Premises and returned
or exchanged, and sales of Tenant's fixtures and equipment not in the ordinary
course of Tenant's business. The term "merchandise" as used in this Lease shall
include food and beverages if Tenant is permitted to sell such items pursuant to
Section 4.1 hereof.
(b) Tenant shall keep at the Leased Premises or at Tenant's executive
offices within the continental United States a full and accurate set of books
and records adequately showing the amount of Gross Sales in each Lease Year. The
books and records to be kept by Tenant shall include, without limitation, (i)
cash register tapes, including tapes from temporary registers; (ii) serially
pre-numbered sales slips; (iii) detailed original records of any exclusions or
deductions from Gross Sales; (iv) sales tax records; and (v) such other records,
if any, which would normally be examined by an independent accountant pursuant
to accepted auditing standards in performing an audit of Tenant's sales. Such
books and records shall be kept in accordance with generally accepted accounting
principles and practices and shall be retained by Tenant for a period of not
less than two (2) years following the end of the Lease Year to which they have
reference. When and as Landlord may reasonably require, Tenant shall also
furnish to Landlord any and all statements, information, and copies of sales and
income tax reports and returns which separately show financial data for the
Leased Premises, and inventory records and other data evidencing Gross Sales.
Within ten (10) days following the end of each calendar month of the Term hereof
Tenant shall submit to Landlord an unaudited statement of Gross Sales for such
calendar month. All Gross Sales statements to be supplied by Tenant to Landlord
shall be in such form and with such detail as Landlord shall deem necessary or
desirable. Within ten (10) days following the end of the month in which Tenant's
Gross Sales for the Lease Year to date exceed the Sales Break Point, and each
month thereafter, Tenant shall pay to Landlord Percentage Rent and shall submit
to Landlord a statement certified by Tenant setting forth the Gross Sales for
each such period. Within forty-five (45) days after the close of each Lease
Year, Tenant shall furnish to Landlord a statement certified by an authorized
representative or financial officer of Tenant setting forth the amount of Gross
Sales during such Lease Year and showing the amount of Percentage Rent required
to be paid by Tenant for such Lease Year. The full amount of the Percentage Rent
due shall be paid to Landlord no later than sixty (60) days after the end of
each Lease Year and any excess Percentage Rent paid shall be credited against
Tenant's next due Percentage Rent payment, except for the final Lease Year of
the Term for which any excess shall be refunded to Tenant. Landlord and/or
Landlord's auditor shall have the right, at any time after ten (10) business
days notice, to inspect and/or audit the records of Tenant relating to Gross
Sales. If the Gross Sales exceed those reported, Tenant shall immediately pay
any deficiency in Percentage Rent owing to Landlord. If Gross Sales vary from
those reported by three percent (3%) or more, Tenant shall pay Landlord's cost
of inspection and audit. If Gross Sales vary from those reported by (i) five
percent (5%) or more in any one (1) Lease Year, or (ii) three percent (3%) or
more for any two (2) Lease Years out of any five (5) Lease Years, then Landlord
shall have the right, at its sole option, to terminate this Lease, with Tenant
remaining liable for sums due and owing under this Lease for the balance of the
Term. Tenant agrees that in the event Tenant shall fail to timely submit a Gross
Sales statement as required by this Section 2.2(b), Tenant shall pay on demand a
late fee of Fifty and 00/100ths Dollars ($50.00) per late statement, as
additional rent.
(c) In the event that Tenant shall fail to operate its business in the
Leased Premises in the manner and on each day as required pursuant to Article IV
hereof, then, for the purpose of computing the Percentage Rent for such Lease
Year affected by Tenant's failure to operate, the Sales Break Point for such
Lease Year shall be adjusted by multiplying the Sales Break Point otherwise
applicable for such Lease Year by a fraction, the numerator of which shall be
the actual number of days in such short Lease Year or the actual number of days
in such Lease Year during which Tenant was open for business and operating in
accordance with Article IV, and the denominator of which shall be "360".
In the event that the first Lease Year is less than six (6) months in
length, then the Percentage Rent covering such Lease Year shall be paid on Gross
Sales in excess of the Sales Break Point computed on a pro rated basis for the
period beginning on the Commencement Date of the Term and ending twelve (12)
calendar months thereafter.
Section 2.3. Payments By Tenant. Throughout the Term of this Lease,
Tenant shall pay to Landlord, without demands, deductions, set-offs or
counterclaims, the Rent, which is hereby defined as the sum of the Minimum Rent,
Percentage Rent and all additional rent, when and as the same shall be due and
payable hereunder. Unless otherwise stated, all sums of money or charges of any
kind or nature, in addition to Minimum Rent and Percentage Rent, payable by
Tenant to Landlord pursuant to this Lease or the Exhibits attached hereto are
defined as "additional rent" and are due thirty (30) days after the rendering of
an invoice therefor, without any deductions, set-offs or counterclaims, and
failure to pay such sums of money or charges shall carry the same consequences
as Tenant's failure to pay Rent. All payments and charges required to be made by
Tenant to Landlord hereunder shall be payable in United States funds, at the
address indicated on page 1 of this Lease, unless otherwise specified by written
notice from Landlord to Tenant. No payment by Tenant or receipt by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account and no endorsement or statement on any check or other communication
accompanying a check for payment of any amounts payable hereunder shall be
deemed an accord and satisfaction, and Landlord may accept such check in payment
without prejudice to Landlord's right to recover the balance of any sums owed by
Tenant hereunder or to pursue any other remedy available in this Lease, or under
law, against Tenant.
Section 2.4. Security Deposit. [Intentionally Deleted]
Section 2.5. Late Charge. In the event any Rent or sums required
hereunder to be paid are not received on or before the tenth (10th) calendar day
after the same are due, then, for each and every late payment, Tenant shall
immediately pay, as additional rent, a late charge equal to the greater of (a)
Fifty and 00/100ths Dollars ($50.00), (b) Ten and 00/100ths Dollars ($10.00) per
day for each day after the date due that such payment has not been received by
Landlord or (c) four percent (4%) per month of the total receivable balance of
Tenant outstanding. In the event of Tenant's failure to pay the foregoing late
charge, Landlord may deduct said charge from the Security Deposit set forth in
Section 2.4 hereof. The provisions herein for late charges shall not be
construed to extend the date for payment of any sums required to be paid by
Tenant hereunder or to relieve Tenant of its obligation to pay all such sums at
the time or times herein stipulated. Notwithstanding the imposition of such late
charges pursuant to this Section 2.5, Tenant shall be in default under this
Lease if any or all payments required to be made by Tenant are not made on or
before the time due and as stipulated in Article XIV, and neither the demand
for, nor collection by, Landlord of such late charges shall be construed as a
cure of such default on the part of Tenant. It is agreed that the said late
charge is a fair and reasonable charge under the circumstances and shall not be
construed as interest on a debt payment. In the event any charge imposed
hereunder or under any other section of this Lease is either stated to be or
construed as interest, then no such interest charge shall be calculated at a
rate which is higher than the maximum rate which is allowed under the usury laws
of the State, which maximum rate of interest shall be substituted for the rate
in excess thereof, if any, computed pursuant to this Lease.
Section 3.1. Landlord's Work. Landlord shall construct the building
wherein the Leased Premises are to be located and perform the work described in
Exhibit C attached hereto and made a part hereof ("Landlord's Work") at
Landlord's cost and expense, except as otherwise provided in Exhibit C. All
work, in addition to the work described in Exhibit C, done by Landlord at
Tenant's request shall be paid for by Tenant within thirty (30) days after the
presentation to Tenant of a ▇▇▇▇ for such work. Acceptance of possession by
Tenant shall be conclusive evidence that Landlord's Work has been fully
performed in the manner required. Any items of Landlord's Work which are not
completed as of delivery of possession shall be identified by Tenant on a punch
list to be submitted to Landlord within thirty (30) days after the date of
possession and Landlord shall thereafter complete the same. Any items of
Landlord's Work which are not timely identified on such a punch list shall be
deemed completed.
Section 3.2. Delivery of Possession. (a) Landlord, or Landlord's
supervising architect, shall give Tenant at least ten (10) days' prior written
notice of the date on which Landlord's Work will be substantially completed in
accordance with Exhibit C and the Leased Premises will be available for the
performance of Tenant's Work (as defined in Section 3.3) to the extent that
Tenant shall be able to perform its work in the Leased Premises without
substantial interference resulting from the conduct of Landlord's Work
("Delivery of Possession Date") provided, however, that in the event the
Shopping Center shall have initially opened for business prior to the
Commencement Date of this Lease, then the foregoing notice requirement shall
automatically be deemed to be reduced to a five (5) day notice requirement.
Tenant covenants and agrees to take physical possession of the Leased Premises
on the Delivery of Possession Date provided that Landlord's Work is
"substantially complete." The Delivery of Possession Date shall be subsequently
confirmed by Landlord, or Landlord's supervising architect, by written notice to
Tenant. Failure of Landlord to deliver possession of the Leased Premises within
the time and in the condition provided for in this Lease will not give rise to
any claim for damages by Tenant against Landlord or permit Tenant to rescind or
terminate this Lease.
(b) Tenant may, provided Tenant shall not interfere with the conduct of
Landlord's Work, and subject to Landlord's reasonable rules and regulations,
enter the Leased Premises during normal working hours during the course of
Landlord's Work for the purpose of inspecting the Leased Premises and making
measurements. At such time prior to the Delivery of Possession Date that
Landlord's Work has progressed sufficiently to permit Tenant to perform its work
without interfering with Landlord's Work, Landlord may, but shall not be
required to, notify Tenant of the same, and Tenant may then enter the Leased
Premises in order to begin to install its store fixtures and perform such other
work as may be required under the provisions of this Lease in order to ready the
store for opening. Throughout the period of Tenant's Work, Tenant shall schedule
its work so as not to interfere with any work being performed by Landlord or by
any other tenant in the Shopping Center.
Section 3.3. Tenant's Work. (a) Tenant agrees, prior to the
commencement of the Term of this Lease, at Tenant's sole cost and expense, to
diligently perform all work of whatever nature in accordance with Tenant's
obligations set forth in Exhibit D ("Tenant's Work") and all other related work
necessary to prepare for the opening to the public of Tenant's store in the
Leased Premises in accordance with the provisions of this Lease. Tenant agrees
to furnish to Landlord the Store Design Drawings and Working Drawings and
Specifications with respect to the Leased Premises prepared in the manner and
within the time periods required in Exhibit D. If such Store Design Drawings or
Working Drawings and Specifications are not furnished by Tenant to Landlord
within the required time period(s) in form to permit approval by Landlord, then
the Fixturing Period (as described in the Data Sheet) shall be reduced by one
(1) day for each day of delay by Tenant in submitting said Store Design Drawings
or Working Drawings and Specifications. Landlord shall exercise reasonable
efforts to respond to such Store Design Drawings or Working Drawings and
Specifications submitted by Tenant pursuant to this Lease within seven (7)
business days following Landlord's receipt from Tenant. In the event of
Landlord's failure to respond within such seven (7) business day period, the
Fixturing Period as described in the Data Sheet shall be extended by one (1) day
for each day of additional delay by Landlord.
Provided Tenant is not in default hereof, Landlord hereby agrees to
contribute towards the cost of Tenant's Work a Construction Allowance of Two
Hundred Fifty Thousand and 00/100ths Dollars ($250,000.00). The aforesaid
Construction Allowance shall be paid thirty (30) days after the Commencement
Date as specified in Section 1.2 hereof, provided Tenant shall have received a
Certificate of Acceptance pursuant to Exhibit D hereof and the applicable lien
waivers from all contractors and subcontractors. In the event that this Lease is
terminated prior to the expiration of the Term hereof, Tenant shall repay said
Construction Allowance to Landlord in cash upon termination; provided, however,
that Tenant's liability for said Construction Allowance shall be reduced at the
rate of Thirty-seven Thousand Five Hundred and 00/100ths Dollars ($37,500.00)
each anniversary of the Commencement Date occurring during the Term hereof.
No material deviations from the final Store Design Drawings or Working Drawings
and Specifications, once approved by Landlord, shall be permitted unless
necessary to comply with applicable governmental requirements. Landlord's
approval of Tenant's Store Design Drawings and Working Drawing and
Specifications shall not constitute the assumption of such items. Tenant's Work
shall include the installation of fixtures and equipment and the stocking of the
Leased Premises with suitable merchandise. Tenant covenants that all such
fixtures and equipment visible to customers shall be new and otherwise
acceptable to Landlord in appearance. In addition to conforming to the
requirements specified in Exhibit D, all work performed by Tenant shall comply
with such rules and regulations as Landlord and its representatives may make,
provided that such rules and regulations are uniformly applied to all similarly
situated Shopping Center tenants under construction. Unless Landlord otherwise
directs in writing, Tenant shall not open the Leased Premises for business until
all construction has been completed pursuant to the provisions of Exhibit D. It
is further understood and agreed that: (i) Landlord shall have no responsibility
or liability whatsoever for any loss of, or damage to, any fixtures, equipment,
merchandise, or other property belonging to Tenant, installed or left in the
Leased Premises except to the extent resulting from the negligence or
intentional acts of Landlord, its agents or employees; and (ii) Tenant's entry
upon and occupancy of the Leased Premises prior to the Commencement Date shall
be governed by and subject to all the provisions, covenants and conditions of
this Lease. Tenant shall obtain at its sole cost and immediately thereafter
furnish to Landlord all certificates and approvals with respect to work done and
installations made by Tenant that may be required for the issuance of a
certificate of occupancy for the Leased Premises, so that such certificate of
occupancy shall be issued and the Leased Premises shall be ready for the opening
of Tenant's business on the Commencement Date. Upon the issuance of the
certificate of occupancy, a copy thereof shall be immediately delivered to
Landlord. Promptly upon the completion of its work, Tenant, at Tenant's cost,
shall repair, clean and restore all portions of the Shopping Center affected by
Tenant's Work to their prior condition.
(b) The interest of Landlord in the Leased Premises and the Retail
Development shall not be subject to liens for improvements made by or on behalf
of Tenant. Nothing contained in this Lease shall be construed as a consent on
the part of Landlord to subject Landlord's estate in the Leased Premises or the
Retail Development to any lien or liability under applicable law. In the event
that any mechanic's, materialman's or other lien or any notices of claim,
including without limitation, stop notices (herein "lien") is filed against the
Leased Premises or Retail Development as a result of any work, labor, services
or materials performed or furnished, or alleged to have been performed or
furnished to or for Tenant or to or for anyone holding the Leased Premises
through or under Tenant, Tenant, at its expense, shall cause the lien to be
discharged or fully bonded to the satisfaction of Landlord within thirty (30)
days after notice of the filing thereof. If Tenant fails to discharge or bond
against said mechanic's, materialman's or other lien, Landlord may, in addition
to any other remedies Landlord may have, but without obligation to do so, bond
against or pay the lien without inquiring into the validity or merits of such
lien and all sums so advanced, including reasonable attorney fees incurred by
Landlord in defending against such lien, procuring the bond or in the discharge
of such lien, shall be paid by Tenant on demand as additional rent. It shall be
Tenant's continuing obligation to keep and maintain the Leased Premises and all
other parts of the Retail Development free from any and all liens arising out of
any work performed, materials furnished or obligations incurred by or for Tenant
in connection with the Leased Premises. In addition, Tenant shall replace any
bonds posted by Landlord pursuant hereto with a suitable bond of equivalent
amount within twenty (20) days after Landlord's demand therefor.
Tenant, subject to Landlord's consent not to be unreasonably withheld,
conditioned or delayed, may grant a security interest, encumber or pledge its
equipment, personal property, inventory and movable trade fixtures located on or
about the Leased Premises, with respect to financing which benefits this store
location. In no event, however, shall Tenant be permitted to mortgage,
hypothecate, encumber or pledge the leasehold interest in the Leased Premises.
(c) Upon the expiration of each five (5) year period of the Term of
this Lease, Tenant shall, within thirty (30) days after direction from Landlord,
submit drawings and specifications showing the work to be performed by Tenant to
completely refurbish the interior portions of Leased Premises. Tenant shall not
be required, pursuant to this Section 3.3(c), to reconstruct the Leased
Premises. The work required of Tenant hereunder shall specifically include work
with respect to the following items: wall covering, floor covering, ceiling,
storefront sign and surfaces visible to customers. Tenant will cause such work
to be performed not later than ninety (90) days following the date of Landlord's
direction in accordance with drawings and specifications approved by Landlord
specifying the refurbishing work to be done by Tenant. All such work shall be
carried out in accordance with the provisions of this Lease, including the
provisions of this Section 3.3 governing construction of the Leased Premises.
Section 3.4. Alterations by Tenant. Tenant shall not make or cause to
be made any alterations, repairs, additions or improvements in or to the Leased
Premises (for example, but without limiting the generality of the foregoing,
Tenant shall not install or cause to be installed any exterior signs or interior
signs visible from the exterior except as permitted by Section 4.3 hereof, floor
covering, interior or exterior lighting, plumbing fixtures, shades, canopies or
awnings or make any changes to the storefront, mechanical, electrical or
sprinkler systems) without the prior written consent thereto by Landlord. Tenant
shall submit to Landlord plans and specifications for such work at the time
consent is sought, in accordance with the criteria and procedures as provided in
Exhibit D. In the event Landlord grants such consent, such alterations, repairs,
additions or improvements shall be performed in good and workmanlike manner and
in accordance with all applicable legal and insurance requirements and all
drawings or specifications approved by Landlord, and in accordance with the
provisions of this Lease, including the provisions of Section 3.3 governing
construction of the Leased Premises. Any work performed by Tenant shall be
subject to Landlord's inspection and approval after completion to determine
whether the same complies with the requirements of this Lease. Prior to the
commencement of any such work by Tenant, Tenant shall obtain the insurance
required in Section 8.2. Tenant agrees that Landlord shall have the right, at no
expense to Landlord, to require Tenant to furnish Landlord with payment and
performance bonds guaranteeing the completion of any repairs, alterations,
additions or improvements (structural or otherwise) required or permitted to be
performed by Tenant under any provision of this Lease.
Tenant may from time to time make non-structural alterations to the
Leased Premises without Landlord's prior written approval, the aggregate total
cost of which shall not exceed Ten Thousand and 00/100ths Dollars ($10,000.00)
in any Lease Year; provided, however, that Tenant shall not be permitted to
alter the sign or the storefront without the prior written consent of Landlord,
and provided further that any such non-structural alterations shall not change
the overall appearance of the Leased Premises as originally approved by
Landlord.
Section 3.5. Removal by Tenant. All repairs, alterations, decorations,
additions and improvements made by Tenant shall be deemed to be attached to the
leasehold and to have become the property of Landlord upon such attachment, and,
upon the Expiration Date or sooner termination of this Lease, Tenant shall not
remove any of such alterations, decorations, additions and improvements;
provided that trade fixtures installed by Tenant may be removed if all Rent due
herein are paid in full and Tenant is not otherwise in default hereunder;
provided further, however, that Landlord may designate by written notice to
Tenant those alterations, decorations, additions and improvements which shall be
removed by Tenant at the Expiration Date or sooner termination of this Lease and
Tenant shall, at Tenant's cost, promptly remove the same and repair any damage
to the Leased Premises caused by such removal.
ARTICLE IV
CONDUCT OF BUSINESS
Section 4.1. Use and Trade Name. Tenant shall continuously use and
occupy the Leased Premises during the Term solely for the purpose of conducting
the business specifically set forth in the Data Sheet and for no other purpose
or purposes. Throughout the Term hereof, Tenant shall (a) operate its business
in the Leased Premises under the Trade Name specifically set forth in the Data
Sheet and under no other so long as such name shall not be held to be in
violation of any applicable law, (b) not change the advertised name or character
of the business operated in the Leased Premises, (c) refer to the Shopping
Center by name in designating the location of the Leased Premises in all
newspaper and other advertising within the Shopping Center market area and in
all other references to the location of the Leased Premises, and (d) during the
period from the Delivery of Possession Date through sixty (60) days following
the Commencement Date, include in all Tenant's newspaper advertising within the
Shopping Center market area the designation that Tenant is opening for business
in the Shopping Center. If any governmental license(s) or permit(s) shall be
required for the proper and lawful conduct of Tenant's business or other
activity carried on in the Leased Premises, or if a failure to procure such a
license or permit might or would in any way, adversely affect Landlord or the
Shopping Center, then Tenant, at Tenant's expense, shall duly procure and
thereafter maintain such license(s) or permit(s) and submit the same for
inspection by Landlord. Tenant, at Tenant's expense, shall at all times, comply
with the requirements of such license(s) or permit(s). Except as provided in
Section 1.3, Tenant shall open its store in the Leased Premises for business to
the public on the Commencement Date, and shall thereafter diligently conduct its
regular business operations in the Leased Premises as required by the terms of
this Lease.
Section 4.2. Operation of Business. Tenant shall open for business in
the Leased Premises and remain open during the entire Term and continuously
operate its business in the entire area of the Leased Premises during the entire
Term. Tenant shall conduct its business at all times in a high class and
reputable manner, maintaining at all times a full staff of employees and a
complete stock of merchandise. Tenant shall install and maintain at all times a
display of merchandise in the display windows (if any) of the Leased Premises
and shall keep the Leased Premises well lighted during all hours that the
Shopping Center is open to the public and during such other hours as may be
reasonably designated by Landlord. In no event shall Tenant conduct or advertise
any auction, fire sale, going out of business sale, or bankruptcy sale in or
about the Leased Premises without Landlord's prior written consent in each
instance, which consent may be withheld by Landlord in its sole and absolute
discretion. Tenant shall conduct its business in the Leased Premises in a lawful
manner and in good faith during all days and hours specified by Landlord from
time to time. Tenant shall not use or allow the Leased Premises to be used for
any improper, immoral or objectionable purposes, as determined by Landlord, and
Tenant shall not do any act tending to injure the reputation of the Shopping
Center as determined by Landlord.
Section 4.3. Sign. Tenant shall install and maintain two (2) signs
affixed to the front of the Leased Premises in accordance with the Tenant
Handbook, subject to the prior written approval of Landlord as to design and
location and conforming to all applicable legal and insurance requirements.
Tenant's signs shall conform to the specifications and requirements contained in
Exhibit E attached hereto. Tenant shall keep its approved storefront signs
lighted during all hours that the Shopping Center is open to the public and
during such other hours as may be reasonably designated by Landlord. Tenant
shall pay for all costs in connection with such signs and shall be responsible
for the cost of proper installation and removal thereof and any damage caused to
the Leased Premises thereby. In the event Landlord deems it necessary to remove
either or both of such signs, then Landlord shall have the right to do so,
provided, however, that if the sign or signs have received Landlord's prior
written approval and are consistent with the specifications and requirements of
Exhibit E, Landlord shall replace said signs as soon as practicable. Except as
mentioned above, Tenant shall not place or cause to be placed, erected or
maintained on any exterior door, wall or window of the Leased Premises, or the
glass of any window or door of the Leased Premises, or on any sidewalk or within
any display window space in the Leased Premises, or within five (5) feet of the
front of the storefront lease line or opening, or within any entrance to the
Leased Premises or otherwise visible from the common areas, any sign (flashing,
moving, hanging, handwritten or otherwise), decal, placard, flashing, moving or
hanging lights, lettering or any other advertising matter of any kind or
description. No symbol, design, name, ▇▇▇▇ or insignia adopted by Landlord for
the Retail Development shall be used without the prior written approval of
Landlord. Any interior signs must be in good taste and prepared professionally
(not hand-lettered) so as not to detract from the appearance of the Leased
Premises or the Shopping Center. Any sign or display visible from the exterior
of the Leased Premises which does not meet the above criteria may be removed at
any time by Landlord without Landlord incurring any liability therefor, and
without such removal constituting a breach of this Lease or entitling Tenant to
claim damages on account thereof.
Section 4.4. Tenant's Warranties. Tenant warrants, represents,
covenants and agrees that, in the operation of its business within the Leased
Premises, Tenant shall: (a) pay before delinquency any and all taxes,
assessments and public charges levied, assessed or imposed upon Tenant's
business, or upon Tenant's fixtures, furnishings or equipment in the Leased
Premises, or upon any leasehold interest or personal property of any kind, owned
by or placed in or about the Leased Premises by Tenant or by anyone claiming by,
through or under Tenant, including, without limitation, any transfer taxes, and
pay when and as due all license fees, permit fees and charges of a similar
nature required for the conduct by Tenant or any subtenant or concessionaire of
any business or undertaking authorized hereunder to be conducted in or from the
Leased Premises; (b) observe all reasonable requirements promulgated by Landlord
at any time and from time to time relating to delivery vehicles, the delivery of
merchandise, and the storage and removal of trash and garbage; (c) not use any
space outside the Leased Premises for sale, storage or any other undertaking;
(d) not use the plumbing facilities in the Leased Premises for any purpose other
than that for which they were constructed, nor dispose of any foreign substances
therein; (e) not use any advertising medium or sound devices inside or adjacent
to the Leased Premises which produce or transmit sounds which are audible beyond
the interior of the Leased Premises; (f) not permit any odor to emanate from the
Leased Premises which is objected to by Landlord or by any tenant or occupant of
the Retail Development (and, upon written notice from Landlord, Tenant shall
immediately cease and desist from causing such odor, and Landlord may deem the
failure by Tenant to do so, a material breach of this Lease); (g) keep the
Leased Premises and any platform, loading dock or service area used by Tenant in
a neat, clean, safe and sanitary condition; (h) promptly comply with all present
and future laws, ordinances, orders, rules, regulations and requirements of all
governmental authorities having jurisdiction, and observe and comply with all
covenants and restrictions of record and all notices from Landlord's mortgagee,
affecting or applicable to the Retail Development or affecting or applicable to
the Leased Premises or the cleanliness, safety, occupancy and use of the same,
whether or not any such law, ordinance, order, rule, regulation, covenant,
restriction, or other requirement is substantial, or foreseen or unforeseen, or
ordinary or extraordinary, or shall necessitate structural changes or
improvements, shall interfere with the use or enjoyment of the Leased Premises,
or shall be directed to or imposed upon Tenant or Landlord, and Tenant shall
hold Landlord harmless from any and all cost or expense on account thereof (as
used in this Lease, the term "legal requirements" shall include the requirements
set forth in this subparagraph); (i) not use the parking areas or sidewalks,
common areas or any space on or about the Retail Development (outside the Leased
Premises) for display, sale, handbilling, advertising, solicitation, or any
other similar undertaking; (j) maintain and operate the heating, ventilating and
air conditioning system and equipment servicing the Leased Premises so as to
adequately heat and cool the same; and (k) be authorized to do business in the
State.
Section 4.5. Storage and Office Space. Tenant shall store or stock in the
Leased Premises only such goods, wares and merchandise as Tenant intends to
offer for sale at, in, from, or upon the Leased Premises. This shall not
preclude occasional emergency transfers of merchandise to the other stores of
Tenant, if any, not located in the Shopping Center. Tenant shall use for office,
clerical or other non-selling purposes only such space in the Leased Premises as
is from time to time reasonably required for Tenant's business therein, and
Tenant shall not perform any office or clerical function in the Leased Premises
for any store located elsewhere.
Section 4.6. Care of Premises. Tenant shall keep the Leased Premises
(including the exterior and interior portions of all windows, doors and all
other glass and signs) orderly, neat, safe and clean and free from rubbish or
dirt at all times and shall store all trash and garbage only in the areas
reasonably designated by Landlord for such storage and accumulation. Tenant
shall not move any safe, heavy machinery, heavy equipment, or fixtures into or
out of the Leased Premises without Landlord's prior written consent. Tenant
agrees that it will not place a load on any floor exceeding the floor load per
square foot which such floor was designed to carry, and will not install,
operate or maintain in the Leased Premises any heavy equipment except in such
manner as to achieve a proper distribution of weight.
Section 4.7. Notice by Tenant. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the Leased Premises, or in the building
of which the Leased Premises are a part of, or of defects therein or in any
fixtures or equipment.
Section 4.8. Radius. Tenant acknowledges that the Retail Development
draws it customers from a large geographic area, relying in part on regional and
international tourism, and that the success of the Retail Development and income
of the Landlord therefrom are dependent upon maximum customer traffic within the
Retail Development . In addition, Tenant acknowledges that Landlord is relying
on the generation of Percentage Rent from Tenant's Gross Sales at the Leased
Premises. During the Term, in the event Tenant, or any person, firm or
corporation who or which controls or is controlled by Tenant (an "Affiliate")
shall directly or indirectly, either individually or as a partner or stockholder
or otherwise, own, operate, or become financially interested in any business
similar to or in competition with the business of Tenant described in Article IV
("competing business"), which business is conducted within the Area (as said
term is herein defined), then the Gross Sales (as said term is defined in this
Lease) of any such competing business within said Area shall be included in
Tenant's Gross Sales made from the Leased Premises and the Percentage Rent
hereunder shall be computed upon the aggregate of Tenant's Gross Sales made from
the Leased Premises and made from each such competing business then conducted
within said Area. Tenant shall be obligated to provide Landlord with full and
complete Gross Sales information and reports with respect to any competing
business within the Area in accordance with the requirements of Article II of
this Lease and Tenant shall be obligated to include the applicable portion of
the Gross Sales of such competing business with the Gross Sales of the Leased
Premises and to pay Percentage Rent thereon in accordance with the terms of this
Lease. The "Area" shall be defined as the area falling within a radius of ten
(10) miles measured from the outside boundary of the Retail Development. This
Section 4.8 shall not apply to any competing business which is open and is being
operated by Tenant within said Area on the Effective Date.
ARTICLE V
COMMON AREA
Section 5.1. Use of Common Area. Landlord agrees to cause to be
operated, managed and maintained during the Term all of the common areas of the
Shopping Center. The term "common areas", as used in this Lease, shall mean the
parking areas, pedestrian sidewalks and bridges, truckways, loading docks,
delivery areas, park areas, pedestrian malls and courts, elevators and
escalators, if any, and stairs not contained in leased areas, public restrooms
and comfort stations, if any, service areas, fire, service and exit corridors,
passageways, landscaped areas, berms and all other areas or improvements which
may be provided for the convenience and use of the occupants and tenants of the
Retail Development and their respective agents, employees, customers, invitees,
and the licensees and invitees of Landlord. The use and occupancy by Tenant of
the Leased Premises shall include the non-exclusive use, in common with all
others to whom Landlord has or may hereafter grant rights to use the same
(including, but not limited to, the owners, tenants and occupants of the
Shopping Center), of the common areas and of such other facilities as may be
designated by Landlord from time to time; subject, however, to rules and
regulations for the use thereof which will be uniformly applicable to all
Shopping Center tenants as prescribed from time to time by Landlord. In
particular, Tenant and its employees shall park their cars only in the areas
specifically designated from time to time by Landlord for that purpose. Tenant
covenants that it will enforce the parking by its employees in such designated
areas. Automobile license numbers of employees' cars shall be furnished by
Tenant to Landlord within five (5) days after Landlord's request. In the event
any vehicle is parked by an employee of Tenant in a non-employee parking area,
Landlord shall have the right to cause the vehicle to be towed to a location
designated by Landlord and Tenant shall be obligated to reimburse Landlord for
all towing charges. Tenant further agrees to hold harmless Landlord and defend
Landlord, its agents and employees against any and all claims of the employee
and/or owner of the vehicle towed. Landlord may at any time close temporarily
any common area to make repairs or changes, to prevent the acquisition of public
rights in such areas and to discourage non-customer use, provided the same shall
not materially adversely affect access to or visibility of the Leased Premises.
In addition, Landlord may modify, from time to time, the traffic flow pattern
and layout of parking spaces and the entrances-exits to adjoining public streets
or walkways, utilize portions of the common areas for entertainment, displays
and charitable activities and may do such other acts in and to the common areas
as in its judgment may be desirable to improve the convenience or attraction
thereof.
Landlord agrees to maintain all common areas of the Shopping Center in good
order, condition and repair and in a safe, clean, sightly and sanitary condition
in accordance with good and accepted shopping center practices. The maintenance
obligations of Landlord shall include, without limitation, the re-striping of
parking areas when required, repairing of common areas and adequate lighting of
all exterior common areas during all hours of darkness during which Tenant shall
be open for business and for one (1) hour thereafter.
Section 5.2. Common Area Maintenance Expenses. (a) Tenant agrees to pay
to Landlord each Lease Year, in the manner hereinafter provided, Tenant's
proportionate share of all costs and expenses (the "Common Area Maintenance
Expenses") of every kind and nature paid or incurred by Landlord, or for which
Landlord is obligated, during each Lease Year, for operating, equipping,
policing and protecting, heating, air conditioning, providing sanitation and
sewer and other services, lighting, insuring, repairing, replacing and
maintaining (i) the common areas, and (ii) all buildings and roofs within the
Retail Development, and (iii) all other areas, facilities and buildings used in
connection with the maintenance and/or operation of, and whether located within
or outside of, the Retail Development, including without limitation, all roads
and driveways serving the Retail Development which are maintained or repaired by
Landlord or at Landlord's expense. The Common Area Maintenance Expenses shall
include, but are not limited to, costs and expenses of: water, gas, sewage,
electricity, refuse disposal, air conditioning, heating and other utilities
(without limitation), including all usage, service, hook-up, connection,
availability and/or standby fees or charges pertaining to same, and the utility
costs; illumination and maintenance of signs, whether located on or off the
Retail Development property; salaries of all management personnel; maintenance,
repair and replacement of directories, electronic or otherwise, cleaning,
lighting, snow removal and landscaping; security control and fire protection;
uniforms for maintenance, administrative and security personnel for the Retail
Development; management fees; maintenance for wooded areas, retention ponds,
wetlands, rivers and riverbank areas; premiums for insurance to the extent
maintained by Landlord, for liability, casualty and property damage, including,
without limitation, insurance against vandalism, plate glass breakage, fire and
extended coverage insurance and such other coverage as determined by Landlord,
and liability for defamation and claims of false arrest occurring in and about
such areas; personal property taxes; maintaining and replacing the equipment, if
any, supplying music to such areas; the reasonable depreciation of equipment
used in the operation and maintenance of such areas; total compensation and
benefits (including premiums for workers' compensation and other insurance) paid
to or on behalf of persons involved in the performance or
administration/technical support of the work specified in this Section 5.2;
repair, maintenance and cleaning of such areas; operation, repair, maintenance
and reasonable depreciation of all temporary and permanent utility systems for
the Retail Development, including, without limitation, heating, ventilating and
air conditioning systems (HVAC systems), gas system(s), plumbing system(s),
electrical equipment and irrigational pumping system(s); operation, repair,
maintenance and reasonable depreciation of emergency water and sprinkler main
system(s) and security alarm system(s); operation maintenance, repair and
replacement of mechanical equipment including any automatic door openers,
elevators, escalators, lighting fixtures (including replacement of poles, tubes
and bulbs) and all other items of equipment used in connection with such areas;
paper supplies in restrooms located in or about such areas, cleaning, lighting,
striping and landscaping, curbs, gutters, sidewalks, drainage and irrigation
ditches, conduits, pipes and canals serving the Retail Development; and there
shall also be added to the foregoing costs and expenses an amount equal to
fifteen percent (15%) of the total of all of the ongoing costs and expenses as
Landlord's administrative fee. As stated throughout this Lease, whenever Tenant
is obligated to pay its "proportionate share" of a cost, expense or Taxes (as
hereinafter defined) such share shall be based on gross leased and occupied
floor area in the Shopping Center, and Tenant's proportionate share shall be
that fraction, the numerator of which is the total square footage of floor area
in the Leased Premises, and the denominator of which is the total square footage
of gross leased and occupied floor area (including the Leased Premises) in the
Shopping Center. As used throughout this Lease, the "gross leased and occupied
floor area" in effect for the whole of any Lease Year shall be the average of
the gross leased and occupied floor area in effect on the first day of each
calendar month in such Lease Year.
Notwithstanding anything to the contrary contained herein, Tenant's
share of Common Area Maintenance Expenses from the Commencement Date through
December 31, 1999 shall not exceed seven and 50/100ths Dollars ($7.50) per
square foot of floor area of the Leased Premises proportionately reduced for a
partial Lease Year.
Prior to the proration of such Common Area Maintenance Expenses to Tenant,
there shall be deducted from the total of such Common Area Maintenance Expenses
any amounts specifically contributed by the Major Tenants toward such Common
Area Maintenance Expenses. It is further agreed that in no event shall Tenant be
obligated for the capital costs of initially constructing the Retail Development
or the capital costs of subsequent expansion construction for the Retail
Development (i.e., adding new Major Tenants to the development or expanding the
Shopping Center or the common areas).
(b) Tenant's proportionate share of such Common Area Maintenance
Expenses for each Lease Year shall be paid in advance, in equal monthly
installments, in the same manner and at the same time as the monthly
installments of Minimum Rent are payable hereunder without deduction, offset or
diminution of any kind, based on an amount estimated in advance from time to
time by Landlord to be Tenant's obligation under this Section 5.2.
Notwithstanding the above, in the event Landlord at any time determines that the
amount of Common Area Maintenance Expenses actually being paid or incurred by
Landlord exceeds the estimate upon which Tenant's proportionate share of Common
Area Maintenance Expenses was computed, then Tenant, following a request from
Landlord, shall commence to pay with the next monthly installment of Minimum
Rent due an amount sufficient to result in Tenant's paying its full
proportionate share of Common Area Maintenance Expenses as computed on the basis
of Landlord's revised estimate of Common Area Maintenance Expenses. Subsequent
to the end of each Lease Year, Landlord shall furnish Tenant with a statement of
the actual amount of Tenant's proportionate share of such Common Area
Maintenance Expenses for such period which statement shall be in reasonable
detail, provided, however, Landlord shall be permitted to describe areas of
expenditure by category and shall not be obligated to enumerate each specific
expenditure. If the total amount paid by Tenant under this Section 5.2 for any
Lease Year shall be less than the actual amount due from Tenant for such Lease
Year as shown on such statement, Tenant shall pay Landlord the difference
between the amount paid by Tenant and the actual amount due, such deficiency to
be paid within thirty (30) days after the furnishing of each such statement, and
if the total amount paid by Tenant hereunder for any such Lease Year shall
exceed the actual amount due from Tenant for such Lease Year, such excess shall
be credited against the next installment due from Tenant to Landlord under this
Section 5.2.
ARTICLE VI
REPAIRS AND MAINTENANCE
Section 6.1. Repairs and Maintenance by Landlord. Landlord agrees to
keep in good order, condition and repair the roof (including keeping the roof
watertight), foundations, exterior (including exterior painting and finish), all
structural portions of the Leased Premises (and of the building in which the
Leased Premises are located) and all plumbing and utility lines not exclusively
serving and not located within the Leased Premises. Should any repairs,
modifications or alterations be required by reason of applicable law, the same
shall be made by Landlord at Landlord's cost and expense unless the need for
such repairs, modifications or alterations shall result from Tenant's failure to
perform its obligations under this Lease or from Tenant's use of the Leased
Premises for other than general merchandising purposes. In addition, for the
first twelve (12) months only following the Delivery of Possession Date,
Landlord shall, upon written notice from Tenant of the necessity therefor,
correct any defects in Landlord's Work within the Leased Premises. All costs and
expenses incurred by Landlord under this Section 6.1 shall be included in Common
Area Maintenance Expenses, other than costs and expenses for Landlord's
correction of defects in Landlord's Work.
Section 6.2. Repairs and Maintenance by Tenant. (a) Except for the
repairs and maintenance that Landlord is specifically obligated to make or
perform pursuant to Section 6.1 above, throughout the entire Term of this Lease,
Tenant, at its expense, shall promptly make all repairs and replacements and
perform maintenance in and to the Leased Premises and all equipment and fixtures
therein or appurtenant thereto, that are necessary or desirable in order to keep
the Leased Premises in good order, condition and repair and in safe, dry and
tenantable condition. Without limiting the generality of the foregoing, Tenant,
at its expense, shall maintain and promptly make any and all necessary repairs
to or replacements of: (i) that portion of any pipes, lines, ducts, wires or
conduits (whether contained within or outside the Leased Premises) which are
installed by Tenant or that exclusively serve the Leased Premises; (ii) the
glass windows, plate glass doors, and all fixtures or appurtenances composed of
glass that are located in or about the Leased Premises; (iii) Tenant's signs;
(iv) the floors and floor coverings, doors and door frames, windows and window
frames, walls, storefront including security gates, grilles or enclosures, locks
and closing devices, partitions and ceilings in the Leased Premises; (v)
heating, ventilating, air conditioning, electrical and plumbing system(s)
equipment and fixtures (whether contained within or outside the Leased Premises)
which are installed by Tenant or which exclusively serve the Leased Premises;
and (vi) the Leased Premises or any part of the Shopping Center when repairs
thereto are necessitated by any act or omission (negligent or otherwise) of
Tenant or any of Tenant's agents, employees or invitees, or by the failure of
Tenant to perform any of its obligations under this Lease. Notwithstanding the
foregoing, Landlord shall be responsible for repairs and maintenance
necessitated by the negligence or intentional acts of Landlord, its agents or
employees. Notwithstanding any contrary provision of this Article VI, Tenant, at
its expense, shall make any and all repairs to the Leased Premises as may be
necessitated by any break-in, forcible entry or other trespass into or upon the
Leased Premises, regardless of whether or not such entry and damage is caused by
the negligence or fault of Tenant or occurs during or after business hours.
Tenant, at its expense, shall change all air conditioning filters at least five
(5) times per year and shall have the air conditioning system professionally
inspected and generally serviced at least twice per year.
(b) Tenant shall keep and maintain the Leased Premises in a clean,
sanitary and safe condition in accordance with the laws of the State and in
accordance with all directions, rules and regulations of the health officer,
building inspector, the National Fire Protection association and any other
officials of the governmental agencies having jurisdiction, at the sole cost and
expense of Tenant, and Tenant shall comply with all requirements of laws,
ordinances, rules, regulations and orders of any lawful authority having
jurisdiction affecting the Leased Premises or Tenant's use thereof. Tenant, at
its expense, shall install and maintain fire extinguishers and other fire
protection devices as may be required by reason of the conduct of Tenant's
business, from time to time by any agency having jurisdiction or the
underwriters insuring the building in which the Leased Premises are located. If
any bureau, department or official of the Federal or State government requires
or recommends the installation of any changes, modifications or alterations in
the sprinkler system or additional sprinkler heads or other equipment
(hereinafter in this subsection (b) collectively "changes") by reason of
Tenant's business, or the location of partitions, trade fixtures, or other
contents of the Leased Premises, or for any other reason, or if any such changes
become necessary to prevent the imposition of a penalty or charge against the
full allowance for a sprinkler system in the fire insurance rates set by any
fire insurance company, Tenant, at Tenant's expense, shall promptly make such
changes as required.
(c) Tenant agrees that Tenant's use of electrical current will at no
time exceed the capacity of the electric distribution system and that Tenant
will not make any alteration or addition to Tenant's electrical system without
Landlord's prior written consent. If Tenant installs any electrical equipment
that overloads the electrical lines in the Leased Premises or the Retail
Development, Tenant shall, at Tenant's sole cost and expense, be required to
make whatever changes to such electrical equipment and in the electric wiring in
the Leased Premises (but only after obtaining Landlord's written approval) as
may be necessary in order to remedy such overloading and be in compliance with
all insurance and legal requirements. All changes required to be made hereby
shall result in the continued conformance with the provisions of Exhibit D and
this Lease.
(d) If Tenant refuses or neglects to properly maintain the Leased
Premises, or to commence or to complete repairs promptly and adequately, or if
Landlord finds it necessary to make any repairs or replacements otherwise
required to be made by Tenant, then Landlord may, after notice to Tenant, in
addition to all other remedies, but without obligation to do so, enter the
Leased Premises and proceed forthwith to have such maintenance, repairs or
replacements made and Tenant shall pay to Landlord, on demand, the cost and
expenses therefor plus a charge of fifteen percent (15%) of such costs and
expenses.
ARTICLE VII
TAXES
Section 7.1. Tax Liability. Tenant agrees to pay to Landlord Tenant's
proportionate share of all taxes and assessments and service payments in lieu of
taxes of every nature and kind which may be levied or assessed by, or payable
to, any lawful authority during or with respect to each fiscal tax year falling
in whole or in part during the Term of this Lease against any or all or any part
of the land, buildings and improvements comprising the Retail Development and
any other taxes which Landlord becomes obligated to pay with respect to the
Retail Development, whether or not the same are assessed as real or personal
property or are payable in advance or in arrears (the "Taxes"). If due to a
future change in the method of taxation, any tax, excise or assessment shall be
levied or assessed against Landlord, directly or indirectly, in lieu of, in
substitution for or as a supplement to any present Taxes or future (real estate
or personal property) tax, in whole or in part, including any new tax, excise or
assessment upon rentals payable to Landlord by occupants of the Retail
Development or upon gross receipts or other income of Landlord derived by
Landlord from or upon the interest in the Retail Development of Landlord (or any
individuals or entities comprising Landlord), such tax, excise or assessment
shall constitute a tax respecting which Tenant is obligated to pay its
proportionate share to Landlord as provided herein. If any Taxes or assessed
valuation(s) are contested by Landlord, then Tenant's proportionate share of
Taxes shall also include Tenant's proportionate share of the cost and expense of
consultation services incurred in evaluating and contesting such Taxes or
assessed valuation(s).
The term "Taxes" shall also include any form of assessment, special
assessment, license fee, license tax, business license fee, business license
tax, commercial rental tax, levy, charge, tax or similar imposition, imposed by
any authority having the direct power to tax, including without limitation any
city, county, State or Federal government, or any school, agricultural,
lighting, drainage or other improvement or special assessment district or any
other agency or other public body, whether or not consented to or joined in by
Landlord and whether or not retroactive, payable by Landlord thereof as against
the land and improvements comprising, or any legal or equitable interest of the
Landlord in, the Retail Development.
Section 7.2. Method of Payment. Tenant's proportionate share of Taxes
shall be paid, in advance, in monthly installments on or before the first day of
each calendar month, in the same manner and at the same time as the monthly
installments of Minimum Rent are payable hereunder without deduction, offset or
diminution of any kind, based on an amount estimated by Landlord. Following
receipt of all bills for Taxes attributable to any calendar or fiscal year
during the Term hereof, Landlord shall furnish Tenant with a written statement
of the actual amount of Tenant's proportionate share of Taxes for such year. If
any ▇▇▇▇ for any such Taxes is not available, Landlord will estimate the amount
of such tax. If the total amount paid by Tenant hereunder for any calendar or
fiscal year during the Term of this Lease shall be less than the actual amount
due from Tenant for such year, as shown on such statement, Tenant shall pay to
Landlord the difference between the amount paid by Tenant and the actual amount
due, such deficiency to be paid within thirty (30) days after demand therefor by
Landlord; and if the total amount paid by Tenant hereunder for any such calendar
or fiscal year shall exceed such actual amount due from Tenant for such year,
such excess shall be credited against the next installment of Taxes due from
Tenant to Landlord hereunder. For the calendar or fiscal years in which this
Lease commences and terminates, Tenant's liability for its proportionate share
of any Taxes for such years shall be subject to a pro rata adjustment based on
the number of days of said calendar or fiscal years during which the Term of
this Lease is in effect. A copy of any such ▇▇▇▇ for Taxes shall at all times be
sufficient evidence of the amount of Taxes assessed or levied against the
property to which such ▇▇▇▇ relates. Prior to or at the commencement of the Term
of this Lease and from time to time thereafter throughout the term hereof,
Landlord shall notify Tenant in writing of Landlord's estimate of Tenant's
monthly installments due hereunder. Tenant's obligations under this Article VII
shall survive the Expiration Date or sooner termination of this Lease.
Section 7.3. Sales Tax Reports. Landlord is obligated, under the
Disposition and Development Agreement between Landlord and the Orange
Redevelopment Agency relating to the Retail Development, to furnish the Orange
Redevelopment Agency sales tax reports for all tenants of the Retail
Development. Therefore, in order to provide Landlord with the sales tax
information from the State of California Board of Equalization ("Board")
pertaining to Tenant's sales at the Leased Premises, Tenant agrees to provide
Landlord with certified copies of all annual sales tax returns filed with the
Board for Tenant's retail operations at the Leased Premises during the Term of
this Lease. In addition thereto, Tenant shall provide Landlord with a power of
attorney letter addressed to, and in a form satisfactory to, the Board
authorizing the Board to release to Landlord all sales tax information for
Tenant's retail operations at the Leased Premises during the Term of this Lease.
Such letter shall be in the form attached hereto and made a part hereof as
Exhibit G, or such other or additional forms as required from time to time by
the Board in order to release such information to Landlord. Landlord agrees to
maintain the confidentiality of any proprietary information received by Landlord
pursuant to this Section 7.3.
ARTICLE VIII
INSURANCE, INDEMNITY AND LIABILITY
Section 8.1. Landlord's Insurance Obligations. Landlord agrees to
obtain and maintain during the Term hereof, to the extent the same is available,
fire and extended coverage insurance, in amounts and coverages and with such
special endorsements as Landlord shall determine from time to time, insuring the
building in which the Leased Premises are located and the improvements to the
Leased Premises provided by Tenant pursuant to this Lease (exclusive of Tenant's
merchandise, trade fixtures, furnishings, equipment, plate glass, signs and
personal property of Tenant). Landlord shall also carry rental interruption
insurance in amounts at least equal to Tenant's total rental obligation for
twelve (12) full months under this Lease including the total of the estimated
costs to Tenant of Taxes and Common Area Maintenance Expenses (including
insurance) for such twelve (12) month period. Tenant shall reimburse Landlord
for its proportionate share of the insurance costs incurred by Landlord under
this Section 8.1 as part of Tenant's Common Area Maintenance Expenses as
provided in Section 5.2 hereof.
Section 8.2. Tenant's Insurance Obligations. (a) Provided Tenant is the
Tenant named on the Recital Page and a wholly-owned subsidiary of the Guarantor,
if any, and Tenant's and Guarantor's, if any, combined net worths are or
Tenant's net worth is at least equal to Ten Million and 00/100ths Dollars
($10,000,000.00), Tenant shall have the right to self-insure for any loss or
damage of the type covered by standard fire and extended coverage insurance with
respect to personal property located on or within the Leased Premises including
alterations and improvements made by Tenant to the extent the same are not
covered by Landlord's fire and extended coverage insurance. Tenant and Guarantor
shall at their sole expenses, without regard to fault on the part of any person,
make and perform any repairs or restorations which are required as a result of a
casualty which would be covered by insurance of the type described in this
Section 8.2(a). Tenant, at Tenant's sole cost and expense, shall obtain and
maintain in effect commencing with the Delivery of Possession Date and
continuing throughout the Term of this Lease, insurance policies providing for
the following coverage: (i) all risk property insurance against fire, theft,
vandalism, malicious mischief, sprinkler leakage and such additional perils as
now are or hereafter may be included in a standard extended coverage endorsement
from time to time in general use in the State, insuring Tenant's merchandise,
trade fixtures, furnishings, equipment and all items of personal property of
Tenant and of anyone claiming by, through or under Tenant located on or in the
Leased Premises, and the amount of such insurance will be set forth in an
"agreed value endorsement" to the policy of such insurance, not less than one
hundred percent (100%) of the full replacement value thereof without deduction
for depreciation, and with a deductible amount of not more than Fifty Thousand
and 00/100ths Dollars ($50,000.00), provided, however, any and all proceeds of
such insurance, so long as this Lease shall remain in effect, shall be used only
to repair or replace or pay for the items so insured; (ii) a commercial general
liability policy, including insurance protecting against any and all claims for
injury to persons or property occurring in or about the Leased Premises and
protecting against assumed or contractual liability under this Lease with
respect to the Leased Premises and the operations of Tenant and any subtenant of
Tenant in, on or about the Leased Premises, with such policy to be in the
minimum amount of Three Million and 00/100ths Dollars ($3,000,000) single limit
coverage; (iii) products liability insurance for merchandise offered for sale or
lease from the Leased Premises, including (if this Lease covers leased premises
in which food and/or beverages are sold and/or consumed) liquor liability
coverage (if applicable to Tenant's business) and coverage for liability arising
out of the consumption of food and/or alcoholic beverages on or obtained at the
Leased Premises, of not less than Two Million and 00/100ths Dollars ($2,000,000)
per occurrence for personal injury and death and property damage; (iv) workers'
compensation coverage as required by law; (v) with respect to alterations,
improvements and the like required or permitted to be made by Tenant hereunder,
contingent liability and builders risk insurance in amounts satisfactory to
Landlord; and (vi) the insurance required under Exhibit D.
(b) All insurance policies herein to be procured by Tenant shall: (i)
be issued by insurance companies reasonably satisfactory to Landlord and
authorized to do business in the State; (ii) be written as primary policy
coverage and non-contributing with respect to any coverage which Landlord may
carry and that any coverage carried by Landlord shall be excess insurance; (iii)
insure and name Landlord, Landlord's managing agent, any mortgagee of the
Shopping Center and any parties in interest designated by Landlord as additional
insured, as their respective interests may appear (except with respect to
workers' compensation insurance); and (iv) contain any express waiver of any
right of subrogation by the insurance company against Landlord, Landlord's
managing agent and their respective agents, employees and representatives which
arises or might arise by reason of any payment under such policy or by reason of
any act or omission of Landlord, its agents, employees or representatives.
Neither the issuance of any insurance policy required hereunder, nor the minimum
limits specified herein with respect to Tenant's insurance coverage, shall be
deemed to limit or restrict in any way Tenant's liability arising under or out
of this Lease. With respect to each and every one of the insurance policies
herein required to be procured by Tenant, on or before the Commencement Date and
at least thirty (30) days before any such insurance policy shall expire, Tenant
shall deliver to Landlord upon Landlord's written request a duplicate original
or certified copy of each such policy or a certificate of the insurer,
certifying that such policy has been issued, providing the coverage required by
this Section 8.2 and containing provisions specified herein, together with
evidence of payment of all applicable premiums. Any insurance required to be
carried hereunder may be carried under a blanket policy covering the Leased
Premises and other locations of Tenant. Each and every insurance policy required
to be carried hereunder by or on behalf of Tenant shall provide (and any
certificate evidencing the existence of each such insurance policy shall
certify) that, unless Landlord shall first have been given thirty (30) days'
prior written notice thereof, the insurer will not cancel, materially change or
fail to renew the coverage provided by such insurance policy. The term
"insurance policy" as used herein shall be deemed to include any extensions or
renewals of such insurance policy. In the event that Tenant shall fail to
promptly furnish any insurance coverage hereunder required to be procured by
Tenant, Landlord, at its sole option, shall have the right after ten (10) days
prior written notice to Tenant to obtain the same and pay the premium therefor
for a period not exceeding one (1) year in each instance, and the premium so
paid by Landlord shall be immediately due and payable by Tenant to Landlord as
additional rent.
(c) Tenant shall not do or permit to be done any act or thing upon the
Leased Premises that will invalidate or be in conflict with fire insurance
policies covering the building containing the Leased Premises or any part
thereof, including all common areas, or fixtures and property therein, or any
other insurance policies or coverage referred to above in this Article VIII; and
Tenant shall promptly comply with all rules, orders, regulations, or
requirements relating to such insurance policies, and shall not do, or permit
anything to be done, in or upon the Leased Premises, or bring or keep anything
therein, which shall increase the rate of fire insurance on the building in
which the Leased Premises are located or on any property, including all common
areas, located therein, or increase the rate or rates of any other insurance
referred to hereinabove. If any act or omission of Tenant, its agents, employees
or contractors shall result in any increase in the premium rates applicable to
any such insurance policies carried by Landlord, or other increased costs to
Landlord in connection therewith, then Tenant shall reimburse Landlord on demand
as additional rent for the amount of any such increased rates or costs. In
particular, if Tenant uses the Leased Premises for the preparation of food,
Tenant shall reimburse Landlord on demand, for any part of the premium for
insurance coverage under Section 8.1 hereof required to be paid on account of
such use of the Leased Premises.
Section 8.3. Mutual Covenant. Notwithstanding any provision of this
Lease to the contrary, Landlord and Tenant each hereby releases the other, its
officers, directors, employees, and agents from any and all liability or
responsibility for any loss, damage or injury caused by fire or other casualty
for which insurance containing a waiver of subrogation is carried by the injured
party at the time of such loss, damage or injury regardless of the extent of any
recovery by the injured party under such insurance. Both parties agree to carry
casualty insurance containing such waiver of subrogation.
Additionally, during any time when Tenant is self-insuring its
insurance obligations hereunder, Tenant hereby releases the Landlord, its
officers, directors, employees and agents from any and all liability or
responsibility for any loss, damage or injury caused by fire or other casualty,
even if such loss, damage or casualty is caused in whole or in part by Landlord
or by any party for whom Landlord may be responsible.
Section 8.4. Covenant to Hold Harmless. Except with respect to the
negligence or willful misconduct of Landlord, its agents or employees (unless
covered or required to be covered by Tenant's insurance), Tenant hereby
indemnifies and agrees to hold harmless Landlord, its officers, directors,
partners, employees and agents and any mortgagee or master lessor of the
Shopping Center, from and against any and all claims, actions, damages,
liabilities, costs and expenses, including attorneys' fees, that (i) arise from
or are in connection with the possession, use, occupancy, management, repair,
maintenance or control of the Leased Premises, or any portion thereof, or (ii)
arise from or are in connection with any act or omission of Tenant or Tenant's
agents, employees, contractors, licensees or invitees, or (iii) result from any
default, breach, violation or nonperformance of this Lease or any provision
hereof by Tenant, or (iv) result from injury to person or property or loss of
life sustained in or about the Leased Premises. Tenant shall, at its own cost
and expense, defend any and all actions, suits and proceedings which may be
brought against Landlord or any mortgagee or master lessor of the Shopping
Center with respect to the foregoing. Tenant shall pay, satisfy and discharge
any and all judgments, orders and decrees which may be received against Landlord
or any such mortgagee or master lessor in connection with the foregoing. In the
event Landlord or any other party so indemnified, shall, without fault, be made
a party to any litigation commenced by or against Tenant, or if Landlord or any
such party shall, in its sole discretion, intervene in such litigation to
protect its interest hereunder, then Tenant shall protect and hold them harmless
and shall pay all costs, expenses and attorneys' fees incurred or paid by such
party(ies) in connection with such litigation. Landlord hereby indemnifies and
agrees to save harmless Tenant, its officers, directors, partners, employees and
agents from and against any and all claims, actions, damages, liabilities, costs
and expenses, including attorneys' fees, in connection with loss of life,
personal injury and/or damage to property arising from or out of any occurrence
in the common areas of the Shopping Center unless caused by the negligence or
willful misconduct of Tenant, its agents, contractors, employees, officers,
directors, partners, subtenants or concessionaires.
Section 8.5. Loss and Damage. All Tenant's property of every kind and
description which may at any time be in the Leased Premises shall be kept at
Tenant's sole risk, and Landlord shall not be liable except to the extent
resulting from the negligence or intentional acts of Landlord, its agents or
employees to Tenant, its agents, employees or customers, for any damage, loss,
compensation, accident, or claims whatsoever resulting to Tenant or its property
from the necessity of repairing any portion of the Shopping Center; any
interruption in the use of the Leased Premises; the use or operation (by
Landlord, Tenant, or any other person or persons whatsoever) of any elevators,
heating, cooling, electrical or plumbing equipment or apparatus; the termination
of this Lease by reason of the destruction of the Leased Premises; any fire,
robbery, theft, or any other casualty; any leakage in any part or portion of the
Leased Premises or the Shopping Center; any water, wind, rain or snow that may
leak into, or flow from part of the Leased Premises or the Shopping Center; any
acts or omissions of any occupant of any space adjacent to or adjoining all or
any part of the Leased Premises or any part of the building of which the Leased
Premises are a part; any explosion, casualty, utility failure or malfunction, or
falling plaster; the bursting, stoppage or leakage of any pipes, sewer pipes,
drains, conduits, appliance or plumbing works; or any other cause whatsoever.
ARTICLE IX
DESTRUCTION OF LEASED PREMISES
Section 9.1. Continuance of Lease. In the event of any damage to the
Leased Premises by fire or other casualty, this Lease shall not be terminated or
otherwise affected; except that, (a) if more than twenty-five percent (25%) of
the square footage of the Leased Premises shall be damaged by any such fire or
other casualty during the last three (3) years of the Term of this Lease (not
including any Option Periods) or during any renewal or extension of the Term
hereof and the cost of repair or restoration exceeds Ten Thousand and 00/100ths
Dollars ($10,000.00) as estimated by Landlord, or (b) if Landlord is unable to
rebuild any portion of the building in which the Leased Premises are located or
of the Shopping Center due to any inability to obtain any required governmental
approval in connection therewith, or (c) if more than thirty-five percent (35%)
of the floor area of the building in which the Leased Premises are located or of
the Shopping Center shall be damaged or destroyed by fire or other casualty, or
(d) if all or any part of the building in which the Leased Premises are located
or if the Shopping Center or the Leased Premises shall be damaged or destroyed
at any time by the occurrence of any risk not insured under the insurance
required to be carried under Article VIII hereof, then Landlord shall have the
option to terminate this Lease within ninety (90) days following the occurrence
of such fire or other casualty by giving written notice to Tenant during such
period. In the event Landlord exercises any of the foregoing options to
terminate, this Lease shall immediately terminate upon Landlord's written notice
to Tenant and (i) the entire proceeds of the insurance provided for in Section
8.1 hereof shall be paid by the insurance company or companies directly to
Landlord and shall belong to, and be the sole property of Landlord, (ii) the
portion of the proceeds of the insurance provided for in Section 8.2 which is
allocable to equipment, fixtures and other items, which, by the terms of this
Lease, rightfully belong to Landlord upon the termination of this Lease by
whatever cause, shall be paid by the insurance company or companies directly to
Landlord, and shall belong to, and be the sole property of, Landlord, and (iii)
Landlord and Tenant shall be relieved from any and all further liability or
obligation accruing under this Lease from and after the date of such
termination. Tenant hereby waives any and all rights which it may have to
terminate this Lease by reason of damage to the Leased Premises by fire or other
casualty pursuant to any presently existing or hereafter enacted statute or
pursuant to any other law.
The provisions of this Lease constitute an express agreement between
Landlord and Tenant with respect to any and all damage to, or destruction of,
all or any part of the Leased Premises or any other portion of the Shopping
Center, and Landlord and Tenant agree that Sections 1932 and 1933(4) of the
California Civil Code shall have no application to this Lease or any damage or
destruction to all or any part of the Leased Premises or any other portion of
the Shopping Center.
Section 9.2. Reconstruction. If the Leased Premises are damaged by fire
or other casualty and this Lease is not terminated in accordance with Section
9.1 hereof, then all fire and extended coverage insurance proceeds from policies
carried pursuant to Section 8.1 hereof, however recovered, shall be held in
escrow and made available for payment of the cost of repairing, replacing and
rebuilding the Leased Premises, the damage to the Leased Premises shall be
promptly repaired, and the Minimum Rent and other charges payable by Tenant to
Landlord shall be abated in proportion to the floor area of the Leased Premises
rendered untenantable, and the Sales Break Point shall likewise be
proportionately reduced. Payment of Minimum Rent and all other charges so abated
shall commence and Tenant shall be obligated to reopen for business sixty (60)
days following the date that Landlord advises Tenant that the Leased Premises
are tenantable and Landlord has substantially completed Landlord's
Reconstruction Work, unless Tenant opens at an earlier time in the damaged area
or remains open in such area following destruction or damage, in which event
there shall be no abatement or any such abatement shall terminate as of the date
of Tenant's earlier reopening. Landlord shall be obligated to commence
Landlord's Reconstruction Work and shall diligently pursue the completion of
Landlord's Reconstruction Work and shall cause the same to be completed as soon
thereafter as possible under the attendant circumstances, but in any event all
such Landlord's Reconstruction Work shall be completed and the Leased Premises
reopened for business within one hundred eighty (180) days following such fire
or casualty. After Landlord has completed Landlord's Reconstruction Work, Tenant
shall commence such Tenant's Reconstruction Work, at its expense. Tenant shall
comply with all laws, ordinances and governmental rules or regulations, and
shall perform all work or cause such work to be performed with due diligence and
in a firs class manner. All permits required in connection with said repairs,
restoration and reconstruction shall be obtained by Tenant at Tenant's sole cost
and expense. Any amount expended by Tenant in excess of any insurance proceeds
received by Tenant shall be the sole obligation of Tenant. "Landlord's
Reconstruction Work" shall be all work required to reconstruct the Leased
Premises in accordance with the working drawings originally approved by Landlord
pursuant to Exhibit C and Exhibit D, or with (at Landlord's sole election) new
drawings prepared by Tenant and acceptable to Landlord and Tenant. In no event
shall Landlord be required to repair or replace Tenant's merchandise, trade
fixtures, furnishings or equipment. If Landlord repairs or rebuilds, Tenant, at
Tenant's sole cost, shall repair or replace Tenant's merchandise, trade
fixtures, furnishings and equipment in a manner and to at least a condition
equal to that prior to the damage or destruction thereof ("Tenant's
Reconstruction Work"). Except as may be specifically set forth in this Article
IX, Landlord shall not be liable or obligated to Tenant to any extent whatsoever
by reason of any fire or other casualty damage to the Leased Premises, or any
damages suffered by Tenant by reason thereof, or the deprivation of Tenant's
possession of all or any part of the Leased Premises.
In the event Landlord has not commenced restoration or rebuilding of
the Leased Premises within ninety (90) days of the date of such fire or casualty
loss, or diligently proceeded to complete such restoration or rebuilding so that
the Leased Premises are restored/rebuilt to its former condition prior to such
fire or casualty loss within one hundred eighty (180) days of the date of such
fire or casualty loss, Tenant will have the right, in either case, to terminate
this Lease by providing Landlord notice of such election and Tenant will vacate
and surrender the Leased Premises pursuant to Section 17.1.
Section 10.1. Eminent Domain. If fifty percent (50%) or more of the
floor area of the Leased Premises shall be taken or condemned by any
governmental authority (including, for purposes of this Article X, any purchase
by such governmental authority in lieu of a taking), then either party may elect
to terminate this Lease by giving notice to the other party not more than ninety
(90) days after the date on which such title shall vest in the authority. If the
parking facilities are reduced below the minimum parking requirements imposed by
the applicable authorities, Landlord may elect to terminate this Lease by giving
Tenant notice within one hundred eighty (180) days after such taking. In
addition, if any Major Tenant shall terminate its lease with Landlord, pursuant
to a taking of its store, Landlord may terminate this Lease by written notice to
Tenant within ninety (90) days after notice to Landlord that such Major Tenant
is terminating its lease. In the case of any taking or condemnation, whether or
not the Term of this Lease shall cease and terminate, the entire award shall be
the property of Landlord; provided, however, Tenant shall be entitled to any
award as may be made for trade fixtures and other equipment (not including any
Tenant's Work required or permitted under this Lease) which under the terms of
this Lease would not have become the property of Landlord; further provided,
that any such award to Tenant shall not be in diminution of any award otherwise
to be made to Landlord in the absence of such award to Tenant.
The provisions of this Lease constitute an express agreement between
Landlord and Tenant with respect to any condemnation or taking of all or any
portion of the Leased Premises or any other portion of the Shopping Center, and
Landlord and Tenant agree that Section 1265.130 of the California Code of Civil
Procedure shall have no application to this Lease or any taking or condemnation
of all or any portion of the Leased Premises or any other portion of the
Shopping Center.
Section 10.2. Rent Apportionment. In the event of any taking or
condemnation, the then current Minimum Rent, Sales Break Point and the square
foot floor area in the Leased Premises as determined pursuant to Section 1.1
shall be apportioned as of the date when possession of the Leased Premises is
required to be delivered to the condemning authority or termination of this
Lease, as the case may be, and, if the Term of this Lease shall not have ceased
and have been terminated as of said date, Tenant shall be entitled to a pro rata
reduction in the Minimum Rent payable and Sales Break Point hereunder, or, if
Tenant has prepaid Minimum Rent, Tenant shall be entitled to a pro rata credit
for the Minimum Rent paid hereunder, based on the proportion which the floor
area taken from the Leased Premises bears to the entire floor area of the Leased
Premises immediately prior to such taking.
Section 10.3. Temporary Taking. Notwithstanding anything to the
contrary in this Article X, the requisitioning of the Leased Premises or any
part hereof by military or other public authority for purposes arising out of a
temporary emergency or other temporary situation or circumstances shall
constitute a taking of the Leased Premises by eminent domain when the use or
occupancy by the requisitioning authority is expressly provided to continue, or
shall in fact have continued, for a period of one hundred eighty (180) days or
more, and if this Lease is not thereafter terminated under the foregoing
provisions of this Article X, then for the duration of any period of use and
occupancy of the Leased Premises by the requisitioning authority, all the terms
and provisions of this Lease and obligations of Tenant hereunder shall remain in
full force and effect, except that the Minimum Rent and Sales Break Point shall
be reduced in the same proportion that the floor area of the Leased Premises so
requisitioned bears to the total floor area of the Leased Premises, and Landlord
shall be entitled to whatever compensation may be payable from the
requisitioning authority for the use and occupation of the Leased Premises for
the period involved.
Section 11.1. No Assignment, Subletting or Encumbering of Lease. (a)
Except as otherwise provided in this Article XI and notwithstanding any
references to assignees, subtenants, concessionaires or other similar entities
in this Lease, Tenant shall not (i) assign or otherwise transfer, or mortgage or
otherwise encumber, this Lease, in whole or in part, or any of its rights
hereunder, (ii) sublet the Leased Premises or any part thereof, or permit the
use of the Leased Premises or any part thereof by any persons other than Tenant
or its agents. Any such attempted or purported transfer, assignment, mortgaging
or encumbering of this Lease or any of Tenant's interest hereunder and any
attempted or purported subletting or grant of a right to use or occupy all or a
portion of the Leased Premises in violation of the foregoing sentence, whether
voluntary or involuntary or by operation of law or otherwise, shall be null and
void and shall not confer any rights upon any purported transferee, assignee,
mortgagee, or occupant, and shall, at Landlord's option, terminate this Lease
without relieving Tenant of any of its obligations hereunder for the balance of
the stated Term. Nothing contained elsewhere in this Lease shall authorize
Tenant to enter into any franchise, concession, license, permit, subtenancy,
departmental operation arrangements or the like, except pursuant to the
provisions of this Article XI.
Notwithstanding the provisions of this Article XI to the contrary,
Landlord's consent shall not be unreasonably withheld or delayed to an
assignment of this Lease or a sublease for all or any portion of the Leased
Premises (by merger, consolidation or otherwise) to another entity (the
"Transferee") to which Tenant shall simultaneously be transferring all or
substantially all of its stock or all or substantially all of its assets,
provided that: (1) Tenant shall not at the time of such transfer be in default
under any of the terms, covenants and conditions of this Lease beyond any
applicable grace period, (2) such Transferee shall agree in writing to perform
all of the unperformed terms, covenants and conditions of this Lease and (3)
Tenant shall at all times remain primarily obligated for the performance of the
terms, covenants and conditions of this Lease.
Notwithstanding anything to the contrary set forth in this Article XI
and without application of any prior provisions of this Article XI, Tenant shall
have the right, without Landlord's consent but with prior written notice to
Landlord, to assign this Lease or sublet the Leased Premises to its parent
corporation or any of its wholly-owned subsidiaries, or any affiliate or
subsidiary of Tenant's parent corporation provided that Tenant shall at all
times remain primarily obligated for the performance of the terms, covenants and
conditions of this Lease.
In addition, Tenant may, without violating the provisions of this
Article XI, sell or offer for sale its voting stock to the public in accordance
with the qualifications or registration requirements of the state where Tenant
is incorporated and the Securities Act of 1933, as amended.
(b) If Tenant is a corporation, the sale, issuance or transfer of any
voting capital stock of Tenant or of any corporate entity which directly or
indirectly controls Tenant (unless Tenant is a corporation whose stock is
publicly traded which shall result in a change in the voting control of Tenant
or the corporate entity which controls Tenant shall be deemed to be a prohibited
assignment of this Lease within the meaning of this Article XI. If Tenant is a
partnership or an unincorporated association, then the sale, issuance or
transfer of a majority interest therein, or the transfer of a majority interest
in or a change in the voting control of any partnership or unincorporated
association or corporation which directly or indirectly controls Tenant, or the
transfer of any portion or all of any general partnership or managing
partnership interest, shall be deemed to be a prohibited assignment of this
Lease within the meaning of this Article XI. The consent by Landlord to any
assignment, transfer, or subletting to any party shall not be construed as a
waiver or release of Tenant under the terms of any covenant or obligation under
this Lease or as a waiver or release of the non-assignability covenants in their
future application, nor shall the collection or acceptance of Rent from any such
assignee, transferee, subtenant or occupant constitute a waiver or release of
Tenant of any covenant or obligation contained in this Lease.
(i) Notwithstanding anything herein contained to the contrary, a
sale or transfer of any voting capital stock of Tenant when caused by
death (e.g., testamentary transfer) or for estate planning purposes
(e.g. inter vivos trust) will not be deemed a prohibited assignment of
this Lease.
(ii) The provisions of this Section 11.1 (b) shall not be deemed
to prohibit transfer of limited partnership interests among existing
limited or general partners; however, if either general partner ceases
to remain a general partner of Tenant such occurrence shall be deemed
a prohibited assignment of this Lease under the meaning of this
Article XI.
(c) Without conferring any rights upon Tenant not otherwise provided in
this Article XI, should Tenant desire to enter into an assignment, sublease or
transfer of this Lease or Tenant's rights hereunder, Tenant shall request in
writing Landlord's consent to the assignment at least thirty (30) days before
the proposed effective date of the assignment, providing the following: (i) the
full particulars of the proposed assignment, sublease or transfer of this Lease
or Tenant's rights hereunder, including its nature, effective date, terms and
conditions, and copies of any offers, draft agreements, subleases, letters of
commitment or intent and other documents pertaining to the proposed assignment;
(ii) a description of the identity, net worth and previous business experience
of the proposed transferee, including, without limitation, copies of the
proposed transferee's latest income, balance sheet and changes in financial
position statements (with accompanying notes and disclosures of all material
changes thereto) in audited form, if available, and certified as accurate by the
proposed transferee; and (iii) any further information relevant to the proposed
assignment which Landlord shall request after receipt of Tenant's request for
consent. Tenant shall, concurrently with any request for Landlord's consent, pay
to Landlord a fee in the sum of One Thousand and 00/100ths Dollars ($1,000.00)
for Landlord's review and processing of such request and Landlord shall not be
obligated to review such request prior to Landlord's receipt of such fee. All
requests for assignment, sublease or transfer shall be forwarded to Landlord at
the address provided above and to the on-site mall management office.
(d) Except for a permitted assignment or subletting as specified in
Section 11.1(a) and (b) and without conferring any rights upon Tenant not
otherwise provided in this Article XI, in the event of an assignment or transfer
of Tenant's interest in this Lease, or a sublease of all or a portion of the
Leased Premises, to a third party, any monthly rent or other payment accruing to
Tenant as the result of any such assignment, transfer, or sublease, including
any lump sum or periodic payment in any manner relating to such assignment,
transfer or sublease, which is in excess of the Rent then payable by Tenant
under this Lease shall be paid one-half (1/2) of such excess by Tenant to
Landlord monthly as additional rent. Landlord may require a certificate from
Tenant specifying the full amount of any such payment of whatsoever nature.
Notwithstanding any assignment, subletting or transfer of this Lease or Tenant's
rights hereunder, Tenant shall remain fully liable on this Lease and for the
performance of all terms, covenants and provisions of this Lease.
(e) All reasonable costs and expenses, including attorney's fees (which
shall include the cost of any time expended by Landlord's attorneys including
in-house counsel) incurred by Landlord in connection with any proposed or
purported assignment, transfer or sublease shall be borne by Tenant and shall be
payable to Landlord as additional rent. It is understood and agreed that the
restrictions set forth in this Article XI are of primary importance in enabling
Landlord to control the mix of tenants in the Shopping Center.
Section 11.2. Assignment or Sublet. If this Lease is transferred or
assigned, in whole or in part, as aforesaid, or if the Leased Premises or any
part thereof be sublet or occupied by any person or entity other than Tenant,
whether as a result of any act or omission by Tenant, or operation of law, or
otherwise, then Landlord, whether before or after default by Tenant, may, in
addition to, and not in diminution of or substitution for, any other rights and
remedies under this Lease or pursuant to law to which Landlord may be entitled
as a result thereof, collect rent from the transferee, assignee, subtenant or
occupant and apply the net amount collected to the Rent herein reserved, but no
such transfer, assignment, subletting, occupancy or collection shall be deemed a
waiver of the covenants contained herein or the acceptance of the transferee,
assignee, subtenant, or occupant as Tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant set forth in
this Lease.
Section 11.3. Transfer of Landlord's Interest. In the event of any
transfer of Landlord's interest in the Leased Premises, including a sale or
lease, the transferor shall be automatically relieved of any and all obligations
on the part of Landlord accruing from and after the date of such transfer,
provided that (a) the interest of the transferor, as Landlord, in any funds then
in the hands of Landlord in which Tenant has an interest shall be turned over,
subject to such interest, to the then transferee; and (b) notice of such sale,
transfer or lease shall be delivered to Tenant as required by law.
Section 12.1. Subordination. Tenant agrees that this Lease shall, at
the request of Landlord, be subordinate to any mortgages or deeds of trust that
are now, or may hereafter be, placed upon the Leased Premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof, provided that the mortgagees or
beneficiaries named in said mortgages or deeds of trust shall agree to recognize
the interests of Tenant under this Lease in the event of foreclosure, if Tenant
is not then in default. Tenant also agrees that any mortgagee or beneficiary may
elect to have this Lease constitute a prior lien to its mortgage or deed of
trust, and in the event of such election and upon notification by such mortgagee
or beneficiary to Tenant to that effect, this Lease shall be deemed prior in
lien to such mortgage or deed of trust, whether this Lease is dated prior to or
subsequent to the date of said mortgage or deed of trust. Tenant agrees that
upon the request of Landlord, or any mortgagee or beneficiary, Tenant shall
execute whatever reasonable instruments may be required to carry out the intent
of this Section 12.1 and Section 12.2.
In accordance with the provisions of this Section 12.1, Tenant agrees
to execute the Agreement of Subordination, Non-Disturbance and Attornment and
Pre-Construction Tenant Estoppel Certificate attached hereto as Exhibit H and
Exhibit H-1 at the time it executes this Lease.
Section 12.2. Attornment. In the event any proceedings are brought for
the foreclosure of, or in the event of the conveyance by deed in lieu of
foreclosure of, or in the event of exercise of the power of sale under, any
mortgage and/or deed of trust made by Landlord covering the Leased Premises, or
in the event Landlord sells, conveys or otherwise transfers its interest in the
Shopping Center or any portion thereof containing the Leased Premises, this
Lease shall remain in full force and effect and Tenant hereby attorns to, and
covenants and agrees to execute an instrument in writing reasonably satisfactory
to the new owner whereby Tenant attorns to such successor in interest and
recognizes such successor as Landlord under this Lease. Payment by or
performance of this Lease by any person, firm or corporation claiming an
interest in this Lease or the Leased Premises by, through or under Tenant
without Landlord's consent in writing shall not constitute an attornment or
create any interest in this Lease or the Leased Premises.
Section 12.3. Financing. In the event any construction lender, land
lessor, or the permanent lender for the Shopping Center requires, as a condition
to financing, modifications to this Lease, then, provided such modifications do
not materially alter the approved working plans and do not increase the Rent to
be paid hereunder, Landlord shall submit to Tenant a written amendment with such
required modifications and if Tenant fails to execute and return the same within
thirty (30) days after the amendment has been submitted, Landlord shall be
entitled to its remedies as specified in Section 12.5.
Nothing herein shall require Tenant to execute an amendment or
amendments to accomplish changes which would change (i) the Minimum Rent,
additional rent or Percentage Rent payable by Tenant; (ii) the permitted use;
(iii) the size, dimensions or location of the Leased Premises; (iv) the length
of the Term; (v) Landlord's construction obligations; or (vi) the conditions
precedent as to Tenant's initial opening requirements, or which would place a
lien on Tenant's assets.
Section 12.4. Estoppel Certificate. Tenant shall, without charge
therefor, at any time and from time to time, within thirty (30) days after
request therefor by Landlord, execute, acknowledge and deliver to Landlord a
written estoppel certificate, in reasonable form, certifying to Landlord, any
mortgagee, or any purchaser of the Shopping Center or any other person
designated by Landlord, as of the date of such estoppel certificate: (i) that
Tenant is in possession of the Leased Premises and has unconditionally accepted
the same; (ii) that this Lease is unmodified and in full force and effect (or if
there has been modification, that the same is in full force and effect as
modified and setting forth such modifications); (iii) whether or not there are
then existing any set-offs or defenses against the enforcement of any right or
remedy of Landlord, or any duty or obligation of Tenant, hereunder (and, if so,
specifying the same in detail); (iv) that Rent is paid currently without any
offset or defense thereto, (v) the dates, if any, to which any Rent has been
paid in advance; (vi) whether or not there is then existing any claim of
Landlord's default under this Lease and if so, specifying the same in detail;
(vii) that Tenant has no knowledge of any event having occurred that authorized
the termination of this Lease by Tenant (or if Tenant has such knowledge,
specifying the same in detail); and (viii) any other matters relating to the
status of this Lease that Landlord or its mortgagee may request be confirmed,
provided that such facts are accurate and ascertainable.
Landlord shall, within thirty (30) days after written request from
Tenant, no more often than once in any Lease Year and provided Tenant is not
then in default hereunder, deliver to Tenant or such persons as Tenant may
designate, a statement in writing certifying to the extent true that: (i) Tenant
is in possession of the Leased Premises; (ii) this Lease is in full force and
effect (as later modified, if such be the case); (iii) the Rent due hereunder is
current; and (iv) that to the best of Landlord's knowledge, information and
belief, Tenant is not in default hereunder.
Section 12.5. Remedies. Any failure by Tenant to execute any
certificate, statement or instrument in accordance with the foregoing provisions
of this Article XII or any financing statement in accordance with the provisions
of Section 14.2(a), within the time period provided or if no time period is
specified, then within thirty (30) days after written request, shall constitute
an irrevocable power of attorney appointing and designating Landlord or its
successors or assigns as attorney-in-fact for Tenant, to execute and deliver any
such certificate, statement, instrument or financing statement.
Section 13.1. Promotion Fund. Landlord shall establish an advertising and
promotion fund (the "Fund"). The object of the Fund shall be to advertise the
Retail Development in the local metropolitan statistical area and to provide a
program of events, all of which shall, in Landlord's judgment, serve to enhance
and promote the Retail Development and its occupants. Such program of events may
include the promotion of coach traffic to the Retail Development and the
development of a mall video network within the Retail Development offering a
program of information, entertainment and advertisements. The Fund shall be
administered by Landlord and the costs and expenses of such administration shall
be charged to the Fund. Landlord shall expend all amounts paid to the Fund by
the tenants in the Retail Development for the purposes herein set forth.
Section 13.2. Promotion Fund Contribution. Tenant's annual contribution
to the Fund shall be the Fund Contribution (reduced proportionately for a
partial Lease Year) as defined in the Data Sheet. Upon Grand Opening, Tenant
shall also pay Tenant's one-time initial contribution or Grand Opening Fee which
is equal to Seven Thousand Five Hundred and 00/100ths Dollars ($7,500.00). The
Fund Contribution payable by Tenant for each Lease Year shall be increased
commencing with the second Lease Year of the Term of this Lease, and each Lease
Year thereafter, by a percentage equal to the percentage increase from the "base
period" of the Consumer Price Index ("Index") to the "current period" of the
Index of the Lease Year for which the adjustment is being made; provided,
however, if the first Lease Year is less than six (6) months, the first
adjustment to the Fund Contribution shall be after the first full Lease Year.
Except as herein expressly provided, the term "base period" shall initially
refer to the Index published for the month of October immediately preceding the
Commencement Date. Following the initial increase in the Fund Contribution
hereunder, the term "base period" shall refer to the Index published for the
month of October immediately preceding the Lease Year for which the Fund
Contribution was last adjusted hereunder. The "current period" of the Index
shall refer to the Index published for the month of October immediately
preceding the Lease Year for which an adjustment is being made. In the event the
Index shall not be published for any of the above-described months, then the
Index published for the month closest, but prior, to the described month shall
be used in its place. The annual Fund Contribution shall be payable by Tenant to
Landlord, or as Landlord may direct, in twelve (12) equal monthly installments,
commencing on the Commencement Date, at the same time and in the same manner as
the monthly installments of Minimum Rent are payable.
Section 13.3. Advertisements. Not more than once each Lease Year, Landlord
may require Tenant at Tenant's cost to either (i) place a one-quarter (1/4) page
tabloid advertisement, or (ii) contribute funds to cover the cost and expense of
an advertisement prepared by Landlord in an advertising mailer, newspaper insert
or other media ad coordinated by Landlord. In the event that Tenant fails to
submit its proposed advertisement within thirty (30) days after Landlord's
request, then ---- Landlord shall have the right to include Tenant in the
advertising promotion and to charge Tenant for the advertisement. Such charge
shall be payable by Tenant within ten (10) days after written notice by
Landlord.
Section 13.4. Network. Landlord may cause to be developed a mall video
network within the Retail Development (the "Network"). The object of the Network
shall be to provide a program of information, entertainment and advertisements,
which shall, in Landlord's judgment, serve to enhance or promote the Retail
Development and its occupants. The Network shall have the right to sell
available time and access on the Network for advertisements or other uses. The
Network shall be under the sole and exclusive direction of Landlord and shall be
administered by Landlord. The costs and expenses paid or incurred by Landlord
for administering, operating, equipping, staffing, protecting, insuring,
repairing, replacing and maintaining the Network shall be charged to the Fund.
During the first year of the operation of the Network and provided Tenant is not
in default of payment of its Fund Contribution, Landlord agrees to produce, or
cause to be produced a video taped advertising message of the business
conducted, or to be conducted, in the Leased Premises (herein "Tenant Video") in
accordance with the terms of this Section 13.4. The Tenant Video shall (i)
identify Tenant's type of business in the Leased Premises, Tenant's trade name
and the address/location of the Leased Premises within the Retail Development;
(ii) be approximately fifteen (15) seconds in duration; (iii) be produced on one
occasion only following the initial opening of the Leased Premises for business;
(iv) be produced in the Leased Premises, Landlord's studio or both; (v) utilize
one format from a select group of advertising message formats as mutually
selected by Landlord and Tenant; and (vi) not contain any lewd, obscene or
offensive content or material. The Tenant Video will be shown on the Network a
reasonable number of times, not to exceed one hundred (100), during a two (2)
week period in the first year of operation. Landlord shall use reasonable
efforts to air Tenant Videos at varying times and days during such two (2) week
period. Any further production by Landlord of advertising messages for Tenant
and any further air time on or access to the Network is subject to availability,
as determined solely by Landlord, and shall be at the then applicable rates and
fees set by Landlord. Landlord shall have the right to reject, remove or
discontinue showing any Tenant Video or advertising message on the Network the
content of which is, in the opinion of Landlord, unethical, misleading, in bad
taste, or shall tend to injure the reputation of the Retail Development or its
occupants, or shall be deemed to be detrimental to the Retail Development or is
in violation of any applicable rule, law or existing agreement with occupant(s)
of the Retail Development. Tenant acknowledges that Tenant shall be solely
responsible for the content of its Tenant Video and except with respect to the
gross negligence of Landlord and the Network, Tenant agrees to save harmless
Landlord, its officers, directors, partners, employees and agents from and
against any and all claims, actions, damages, liability, cost or expense,
including attorneys' fees that arise from or with respect to the content of such
advertising message, including without limitation any claims for infringement of
the intellectual property rights of others or actions for unfair competition.
Landlord reserves the right at any time to dissolve the Network and cease
providing its promotional services as well as Tenant Videos and in lieu thereof,
to provide, or cause to be provided, a program of advertising and promotional
events which in Landlord's sole judgment, will serve to promote the Retail
Development and its occupants.
Section 14.1. Elements of Default. If any one or more of the following
events occur, said event or events shall hereby be classified as a "default":
(a) (i) the failure of Tenant to take possession of the Leased Premises at the
Delivery of Possession Date, or (ii) the failure of Tenant to open its doors for
business on the date specified in Section 1.3 hereof, or (iii) if Tenant vacates
or abandons the Leased Premises and permits the same to remain unoccupied and
unattended, or (iv) if Tenant fails to maintain normal inventory levels and
employee staff for the conduct of its normal business activities in the Leased
Premises, or (v) the failure of Tenant to continuously operate its business in
compliance with Section 4.2 for the purposes specified in Section 4.1, or (vi)
in the event of the sale or removal of a substantial portion of Tenant's
property located in the Leased Premises in a manner which is outside the
ordinary course of Tenant's business; (b) the failure of Tenant to pay any Rent
or other charges required to be paid by Tenant when same shall become due and
payable hereunder and such failure continues for ten (10) days after written
notice; (c) the failure of Tenant to perform or observe any term or condition of
this Lease and such failure shall continue for thirty (30) days after written
notice; (d) ; (e) if any writ of execution, levy, attachment or other legal
process of law shall occur upon Tenant's assets, merchandise, fixtures, or
Tenant's estate or interest in the Leased Premises; (f) Tenant shall be
liquidated or dissolved or shall begin proceedings toward such liquidation or
dissolution, or shall in any manner permit the divestiture of all, or any
substantial part of Tenant's assets. In the event of
(i) a default which results in a total monetary outstanding balance on excess
of $20,000.00 or (ii) a default pursuant to Section 14.1 (a) (iii) of this
Lease, which shall not be remedied within the applicable grace period, if any,
by Tenant under this Lease or by the tenant in any of the "other leases" (as
hereinafter defined), then Landlord may, upon ten (10) days prior notice in
writing to Tenant, declare such default to be a default of this Lease (unless
the default is cured within the ten day period after notice) and, at Landlord's
option, a default of any of the "other leases," as the case may be. Landlord and
Tenant acknowledge that Tenant or the parent, subsidiary or affiliate of Tenant
(by virtue of common ownership or control, direct or indirect) has presently, or
may in the future, enter into lease agreements with Landlord (or with any person
or entity which is affiliated with Landlord, or which directly or indirectly
controls or is controlled by, or is under common control with Landlord, or which
is managed by the managing agent utilized by Landlord for the Shopping Center)
for the shopping centers commonly referred to as Ontario ▇▇▇▇▇, Potomac ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Gurnee ▇▇▇▇▇, Sawgrass ▇▇▇▇▇, Grapevine ▇▇▇▇▇, Arizona ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ and Concord ▇▇▇▇▇ (such leases to be referred to as "other leases").
Nothing contained herein shall be deemed a limitation of the rights of Landlord
as set forth in this Lease or any of the "other leases."
Section 14.2. Landlord's Remedies. In the event of any such default or
breach by Tenant, Landlord may at any time thereafter, with or without further
notice or demand and without limiting Landlord in the exercise of any right or
remedy which Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Leased Premises by
any lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Leased Premises to Landlord. In such
event Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including, but not limited to, the cost
of recovering possession of the Leased Premises; expenses of reletting,
including necessary renovation an alteration of the Leased Premises; reasonable
attorneys' fees; any real estate commission actually paid; and the worth at the
time of award determined by the court having jurisdiction thereof of (i) the
unpaid rent (as defined below) which had been earned at the time of termination;
(ii) the amount by which the unpaid rent, which would have been earned after
termination until the time of award, exceeds the amount of such rental loss for
the same period which the Tenant proves could have been reasonably avoided; and
(iii) the amount by which the unpaid rent, for the balance of the Term after the
time of such award, exceeds the amount of such rental loss for the same period
that Tenant proves could be reasonably avoided. The worth at the time of award
of the sums referred to in clauses (i) and (ii) above, shall be computed by
allowing interest from the due date at the rate provided in Section 20.14. The
worth at the time of award of the amount referred to in clause (iii) above,
shall be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%).
Landlord's rights hereunder shall be deemed subject to the rights granted to
Tenant pursuant to Section 1951 et seq. and each applicable subsection thereof
of the California Civil Code.
(b) Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the Leased
Premises. In such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder, pursuant to Section 1951.4 of the California Civil
Code or any similar, successor or related provision of law.
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the State of California. Any notice delivered
by Landlord to Tenant under this Lease shall be in lieu of, and in addition to,
any notice required under Section 1161 of the California Code of Civil Procedure
or any similar successor law with respect to the subject default.
(d) The term "rent" as used in this Section 14.2 shall mean Minimum Rent
and all other additional rent payable pursuant to any other section of this
Lease, including Section 2.3 of this Lese. All such sums other than Minimum
Rent, shall be computed on the basis of the average monthly amount thereof
accruing during the immediately preceding twelve (12) month period prior to
default, except that if it becomes necessary to compute such rent before such
twelve (12) month period has occurred, then the bases of the average monthly
amount accruing during such shorter period shall be used.
Section 14.3. Bankruptcy. (a) Neither Tenant's interest in this Lease, nor
any estate hereby created in Tenant nor any interest herein or therein, shall
pass to any trustee or receiver or assignee for the benefit of creditors or
otherwise by operation of law, except as may specifically be provided pursuant
to the Bankruptcy Code (11 USCss.101 et seq.), as the same may be amended from
time to time. -- ---
(b) It is understood and agreed that this Lease is a lease of real
property in a shopping center as such lease is described in Section 365 of the
Bankruptcy Code, as the same may be amended from time to time. Upon the filing
of a petition by or against Tenant under the Bankruptcy Code, Tenant, as debtor
and as debtor-in-possession, and any trustee who may be appointed with respect
to the assets of or estate in bankruptcy of Tenant, agree to pay monthly in
advance on the first day of each month, as reasonable compensation for the use
and occupancy of the Leased Premises, an amount equal to all Minimum Rent,
additional rent and other charges otherwise due pursuant to this Lease, and to
pay Percentage Rent monthly, at the percentage factor set forth in this Lease
for the Lease Year in which such month falls, on all of the Gross Sales during
such month in excess of one-twelfth (1/12th) of the Sales Break Point for such
Lease Year; payment of all such Percentage Rent to be made by the tenth (10th)
day of the succeeding month. Included within and in addition to any other
conditions or obligations imposed upon Tenant or its successor in the event of
the assumption and/or assignment of this Lease are the following: (i) the cure
of any monetary defaults and reimbursement of pecuniary loss within not more
than thirty (30) days of assumption and/or assignment; (ii) the deposit of an
additional sum equal to not less than three (3) months' Minimum Rent and
additional rent to be held pursuant to the terms of Section 2.4 of this Lease,
which sum shall be determined by Landlord, in its sole discretion, to be a
necessary deposit to secure the future performance under this Lease by Tenant or
its assignee; (iii) the use of the Leased Premises as set forth in Section 4.1
of this Lease and the quality, quantity and/or lines of merchandise, goods or
services required to be offered for sale are unchanged; and (iv) the prior
written consent of any mortgagee to which this Lease has been assigned as
collateral security.
Section 14.4. Additional Remedies and Waivers. The rights and remedies of
Landlord set forth herein shall be in addition to any other right and remedy now
or hereinafter provided by law, including but not limited to the statutes,
rules, regulations, laws and judicial decisions of the State, and all such
rights and remedies shall be cumulative. No action or inaction by Landlord shall
constitute a waiver of a default or termination and no waiver of default or
termination shall be effective unless it is in writing, signed by Landlord.
Section 14.5. Landlord's Cure of Default. If Tenant shall be in default
hereunder, Landlord shall have the option, but not the obligation, upon three
(3) days written notice to Tenant (except in the event of an emergency, in which
event no notice shall be required), to cure the act or failure constituting said
default for the account of and at the expense of Tenant. Landlord's cure or
attempt to cure any act or failure constituting the default by Tenant shall not
result in a waiver or release of Tenant. Tenant agrees to pay the costs incurred
by Landlord pursuant to this Section 14.5 plus interest, in accordance with
Section 20.14 hereof, on all sums expended by Landlord pursuant to this Section
14.5 from the date of such expenditure plus a charge of fifteen percent (15%) of
such costs, to Landlord upon demand, as additional rent.
Landlord may, at any reasonable time or times, upon prior notice to
Tenant (except in the event of an emergency, or if Tenant is in default under
this Lease, in which event no notice shall be required), before and after the
Commencement Date, enter upon the Leased Premises, any portion thereof and any
appurtenance thereto (with men and materials, if required) for the purpose of:
(a) inspecting the same; (b) making such repairs, replacements or alterations
which Landlord may be required to perform as herein provided or which it may
deem desirable for the Leased Premises; and (c) showing the Leased Premises to
prospective purchasers, lenders or lessees. Landlord hereby expressly reserves
the right, exercisable at any time and from time to time, to erect, use,
maintain and repair pipes, conduits, plumbing, vents, ducts and wires in, to,
under and through the Leased Premises as and to the extent that Landlord may now
or hereafter deem to be necessary or appropriate for the proper operation and
maintenance of the Shopping Center. Any redecorating or repair necessitated by
reason of location of same within the Leased Premises shall be the
responsibility of Landlord. Landlord agrees to hold Tenant harmless from any
damage or injury to person or property to the extent resulting from Landlord
exercising its rights under this Article XV.
In the exercise of its rights under this Article XV, Landlord shall use
reasonable efforts to avoid material interference with the operation of Tenant's
business within the Leased Premises. Landlord agrees that except in the event of
an emergency, and provided Tenant shall make an employee of Tenant available to
accompany Landlord following Landlord's notice to Tenant of the necessity
therefor, Landlord shall not enter the Leased Premises during the Term of this
Lease without an employee of Tenant accompanying Landlord's representative.
Tenant hereby waives and releases any right it may have under Sections
1941 and 1942 of the California Civil Code or under any similar law, statute,
ordinance or common law now or hereafter in effect.
DELAYS
If Landlord or Tenant is delayed or prevented from performing any of
their respective obligations during the Term of this Lease because of strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
governmental restrictions or delays in issuing permits (provided that the delays
do not result from Tenant's actions or failure to act) or reasons of a like
nature not the fault of the party delayed in performing such obligation, then
the period of such delays shall be deemed added to the time herein provided for
the performance of any such obligation and the defaulting party shall not be
liable for losses or damages caused by such delays; provided, however, that,
subsequent to the Commencement Date, this Article XVI shall not apply to the
payment of any sums of money required to be paid by Tenant hereunder or any
obligation of Landlord or Tenant that can be satisfied by the payment of money,
and shall not excuse Tenant from its obligation to continuously operate its
business within the Leased Premises in accordance with the provisions of
Sections 4.1 and 4.2 hereof.
ARTICLE XVII
END OF TERM
Section 17.1. Return of Leased Premises. Upon the Expiration Date or
earlier termination of this Lease, Tenant shall quit and surrender to Landlord
the Leased Premises, broom-clean, in good order and condition, ordinary wear and
tear excepted, and shall surrender to Landlord all keys to or for the Leased
Premises and inform Landlord of all combinations of locks, safes and vaults, if
any, in the Leased Premises. Subject to the provisions of Section 3.5 hereof,
Tenant, at its expense, shall promptly remove all personal property of Tenant,
repair all damage to the Leased Premises caused by such removal and restore the
Leased Premises to the condition which existed prior to the installation of the
property so removed. Any personal property of Tenant not removed within ten (10)
days following the Expiration Date or earlier termination of this Lease shall be
deemed to have been abandoned by Tenant and to have become the property of
Landlord, and may be retained or disposed of by Landlord, as Landlord shall
desire. Tenant's obligation to observe or perform the covenants set forth in
this Section 17.1 shall survive the Expiration Date or earlier termination of
this Lease.
Section 17.2. Holding Over. If Tenant shall hold possession of the
Leased Premises after the Expiration Date or earlier termination of this Lease
at Landlord's option (a) Tenant shall be deemed to be occupying the Leased
Premises as a tenant from month-to-month, at double the Minimum Rent and other
charges in effect during the last Lease Year immediately preceding such holdover
and otherwise subject to all of the terms and conditions of this Lease, or (b)
Landlord may exercise any other remedies it has under this Lease or at law or in
equity including an action for wrongfully holding over.
Notwithstanding the foregoing, if Tenant is negotiating in good faith
with Landlord to renew or extend the Term of this Lease for the Leased Premises
(or a relocation within the Shopping Center), then Tenant may occupy the Leased
Premises on a month-to-month tenancy at one-twelfth (1/12th) of the annual
Minimum Rent for the last year of the Term of the Lease.
ARTICLE XVIII
COVENANT OF QUIET ENJOYMENT
Landlord covenants that if and so long as Tenant pays the Rent and all
other charges provided for herein, and performs all of its obligations provided
for herein, Tenant shall at all times during the Term hereof peaceably have,
hold and enjoy the Leased Premises, without any interruption or disturbance from
Landlord, or anyone lawfully or equitably claiming through or under Landlord,
subject to the terms hereof and any mortgage or deed of trust to which this
Lease shall be subordinate.
ARTICLE XIX
UTILITIES
Section 19.1. Utilities. Tenant agrees to connect to and use the utilities
(including electricity, water, gas, cooling and/or heating system, telephone and
any other utility) supplied to the Leased Premises in accordance with the
criteria set forth in the Exhibits attached to this Lease, Landlord's schedule
of mechanical and electrical design criteria, Landlord's rules and regulations,
and the rules and regulations of the utility companies supplying the service.
Tenant shall be solely responsible for and promptly pay all costs and charges,
including installation thereof where applicable, for all water, gas, cooling,
heat, electricity, sewer and other utilities provided or used in or at the
Leased Premises, commencing with the Delivery of Possession Date and continuing
throughout the Term of this Lease. If Landlord shall elect to supply any of the
utilities used upon or furnished to the Leased Premises, Tenant agrees to pay
Tenant's share of Landlord's hard and soft costs associated with the
installation, operation, maintenance and repair of such utility systems, based
on Tenant's estimated usage and its pro rata share of such hard and soft costs
as reflected on a monthly invoice to be provided by Landlord; provided, however,
in no event shall Tenant's total charges for utilities provided by Landlord
exceed what Tenant would be charged by the local utility company if it were
billed directly by such utility as a direct retail customer. Landlord shall not
be liable to Tenant for any loss, damage or expense which Tenant may sustain if
the utilities, or the quality or character of utilities used upon or furnished
to the Leased Premises are no longer available or suitable for Tenant's
requirements, or if the supply of any such utility ceases or is interrupted as a
result of any cause and no such change, interruption or cessation of service
shall constitute an eviction of Tenant. Any furnishing by Landlord of light,
cooling and/or heat or power shall be conditioned upon the availability of
adequate energy sources. Landlord shall have the right to reduce heat, lighting
and air conditioning within the Shopping Center, including, without limitation,
the Leased Premises and the common areas, as required by any mandatory or
voluntary fuel or energy saving allocation, or any similar statute, regulation,
order or program.
Section 19.2. Electricity, Telephone and Gas. All telephone, electric and
gas (with gas being available only to food service tenants) utility required by
Tenant for the Leased Premises shall (if available) be obtained by Tenant in
accordance with Exhibit D and shall be installed by the appropriate company or
utility. All charges for such utility service (including the installation
thereof) shall be paid by Tenant directly to the company or utility providing
any such service, as and when they --------- become due and payable.
Section 19.3. Trash and Garbage Removal. Tenant shall be solely
responsible for trash and garbage removal from the Leased Premises including the
placing of all trash and garbage in containers provided by Landlord or
Landlord's contractor for such purpose. In the event Landlord elects to furnish
such service to the tenants in the Shopping Center, Tenant agrees to use only
the service provided by Landlord and to pay for such service (including both the
cost of leasing containers and the cost of removal) monthly, as additional rent,
in accordance with the uniform schedule of charges to be established by
Landlord. In no event shall Tenant be obligated to pay Landlord more for such
trash and garbage removal service than the prevailing competitive rates of
reputable independent trash removal contractors for service similar to that
provided by Landlord.
Section 19.4. Water and Sewer. The cost of water and sanitary sewer for
usage in the Shopping Center shall be included in Common Area Maintenance
Expenses, except for food service tenants which may be billed directly by
Landlord or by the supplier of water and sanitary service and any other tenants
which are billed directly by Landlord or such supplier. Landlord reserves the
right to install a water meter in the Leased Premises at any time or from time
to time to measure Tenant's consumption of water therein and ▇▇▇▇ Tenant
directly for the cost of such consumption. Tenant shall pay, as additional rent,
the amount of each ▇▇▇▇ within fifteen (15) days after such ▇▇▇▇ is rendered.
Section 19.5. Grease Interceptors. Landlord, in its commercially reasonable
judgment, will arrange for regular periodic service and cleaning of all grease
interceptors at Tenant's expense. Cost of service and cleaning of grease
interceptors will be allocated among grease interceptors serving food court(s)
and grease interceptors serving individual tenants in proportion to grease trap
size. Tenants served by individual grease traps will pay their pro rata share of
the cost for their grease trap. The share of grease trap service and cleaning
cost apportioned to food court grease traps will be paid by food court tenants
as part of the food court common facilities expenses.
ARTICLE XX
MISCELLANEOUS
Section 20.1. Entire Agreement. This Lease together with the Exhibits,
attached hereto and incorporated herein contains the entire agreement between
the parties hereto and there are no promises, agreements, conditions,
undertakings, or warranties, or representations, oral or written, express or
implied, between them other than as herein set forth. No change or modification
of this Lease or of any of the provisions hereof shall be valid or effective
unless the same is in writing and signed by the parties hereto. No alleged or
contended waiver of any of the provisions of this Lease shall be valid or
effective unless in writing signed by the party against whom it is sought to be
enforced.
Section 20.2. Notices. No notice or other communication given under this
Lease shall be effective unless the same is in writing and is delivered in
person or mailed by registered or certified mail, return receipt requested,
first class, postage prepaid, or delivered by Federal Express or a comparably
reliable national air courier service (i.e. one which delivers service in at
least 48 states) provided that any such courier service provides written
evidence of delivery. Any such notice or communication shall be addressed:
(a) If to Landlord, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or to such other address as Landlord
shall designate by giving notice thereof to Tenant, with a copy for
informational purposes only to the Mall Manager of the Retail Development.
(b) If to Tenant, at the address set forth for Tenant on page 1 of this
Lease or at the Leased Premises, or such other address as Tenant shall designate
by giving notice thereof to Landlord.
The date of service of any notice or other communication given by mail
shall be the date on which such notice is deposited in the U.S. mails. The date
of service of any notice given by courier service (as described above) shall be
one (1) day after deposit with such courier service.
Section 20.3. Governing Law. It is the intent of the parties hereto that
all questions with respect to the construction of this Lease and the rights and
the liabilities of the parties hereto shall be determined in accordance with the
laws of the jurisdiction in which the Leased Premises is located and that all
disputes arising hereunder shall be heard and decided in the local jurisdiction
where the Leased Premises is located.
Section 20.4. Successors. All rights and liabilities herein given to,
or imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors, and assigns of
the said parties; and if there shall be more than one Tenant, or more than one
person or entity acting collectively as Tenant, they shall all be bound jointly
and severally by the terms, covenants and agreements herein. Any restriction on
or requirement imposed upon Tenant hereunder shall be deemed to extend to
Tenant's Guarantor, Tenant's sublessees, Tenant's assignees and Tenant's
invitees, and it shall be Tenant's obligation to cause the foregoing persons to
comply with such restrictions or requirements. No rights, however, shall inure
to the benefit of any assignee or other transferee of Tenant, and no rights or
benefits shall be conferred upon any such assignee or transferee by reason of
this Section 20.4, unless such rights or benefits shall be expressly otherwise
set forth in this Lease.
Section 20.5. Liability of Landlord. Neither Landlord, Landlord's
beneficiaries, any persons or entities comprising Landlord, nor any successor in
interest to Landlord (or to such persons or entities) shall have any personal
liability for any failure by Landlord to perform any term, covenant or condition
of this Lease. If Landlord shall fail to perform any covenant, term or condition
of this Lease upon Landlord's part to be performed, and if as a consequence of
such default Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only out of the proceeds of sale received upon
execution of such judgment and levied thereon against the right, title and
interest of Landlord in the Shopping Center and out of rents or other income
from such property receivable by Landlord, or out of the consideration received
by Landlord from the sale or other disposition of all or any part of Landlord's
right, title and interest in the Shopping Center, subject, nevertheless, to the
rights of Landlord's mortgagee, and neither Landlord nor any of the co-partners
comprising the partnership which is Landlord herein shall be liable for any
deficiency. The foregoing limitation of liability shall be noted in any judgment
secured against Landlord and in the judgment index.
Section 20.6. Brokers. Tenant warrants and represents that there was no
broker or agent instrumental in consummating this Lease. Tenant agrees to
indemnify and hold Landlord harmless against any claims for brokerage or other
commissions arising by reason of a breach by Tenant of this representation and
warranty.
Section 20.7. Transfer by Landlord. Landlord hereunder shall have the right
to freely assign this Lease without notice to or the consent of Tenant.
Section 20.8. No Partnership. Notwithstanding the fact that a portion of
the Rent reserved hereunder may be a percentage of Tenant's Gross Sales, and
notwithstanding anything else to the contrary, Landlord shall not be deemed to
be a partner of Tenant or a joint venturer with Tenant.
Section 20.9. Waiver of Counterclaims. Tenant shall not impose any
counterclaim or counterclaims in a summary proceeding or other action based on
termination or holdover, it being the intent of the parties hereto that Tenant
be strictly limited in such instance to bringing a separate action in the court
of appropriate jurisdiction. The foregoing waiver is a material inducement to
Landlord making, executing and delivering this Lease and Tenant's waiver of its
right to counterclaim in any summary proceeding or other action based on
termination or holdover is done so knowingly, intelligently and voluntarily.
Section 20.10. Waiver of Jury Trial. Landlord and Tenant hereby waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on, or in respect of, any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant hereunder, Tenant's use or occupancy of the Leased Premises
and/or any claim of injury or damage.
Section 20.11. Severability. If any provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
Section 20.12. No Waiver. No failure by Landlord to insist upon the strict
performance of any term, covenant, agreement, provision, condition or limitation
of this Lease to be kept, observed or performed by Tenant, and no failure by
Landlord to exercise any right or remedy available upon a breach of any such
term, covenant, agreement, provision, condition or limitation of this Lease,
shall constitute a waiver of any such breach or of any such term, covenant,
agreement, provision, condition or limitation.
Section 20.13. Consumer Price Index. As used herein, "Consumer Price Index"
or "Index" shall mean the Consumer Price Index for All Urban Consumers (1982-84
= 100), U.S. City Average, All Items, published by the United States Department
of Labor, Bureau of Labor Statistics (or such comparable index as may be
utilized in substitution for or as the successor to the stated Index). If such
Index is not published by the Bureau of Labor Statistics or by another similar
governmental agency at any time during the Term of this Lease, then the most
closely comparable statistics on the purchasing power of the consumer dollar as
published by a responsible financial authority and selected by Landlord shall be
utilized in lieu of such Index.
Section 20.14. Interest. Any amount due from Tenant to Landlord herein
which is not paid when due shall bear interest at a rate per annum equal to the
Federal Reserve Bank discount rate as published in the Wall Street Journal on
the 25th day of the month preceding the date upon which the obligation is
incurred (or the next business day thereafter if the 25th is not a weekday) plus
five percent (5%) unless otherwise specifically provided herein, but the payment
of such interest shall not excuse or cure any default by Tenant under this
Lease. In no event shall any interest calculated hereunder be at a rate which is
higher than the maximum rate which is allowed under the usury laws of the State,
which maximum rate of interest shall be substituted for the rate in excess
thereof, if any, computed pursuant to this Section 20.14.
Section 20.15. Excavation. If an excavation shall be made upon land
adjacent to the Leased Premises, or shall be authorized to be made, Tenant shall
afford to the person causing or authorized to cause such excavation, license to
enter upon the Leased Premises for the purpose of doing such work as said person
shall deem necessary to preserve the wall or the building of which the Leased
Premises form a part from injury or damage and to support the same by proper
foundation, without any claim for damages or indemnity from Landlord, or
diminution or abatement of Rent.
Section 20.16. Rules and Regulations. Tenant agrees to comply with and
observe all reasonable rules and regulations established by Landlord for the
Shopping Center from time to time. Tenant's failure to keep and observe such
rules and regulations shall constitute a default pursuant to the terms of this
Lease in the manner as if the same were contained herein as covenants, which
shall carry with it the same consequences under Article XIV hereof as Tenant's
failure to pay rent.
Section 20.17. Financial Statements. Upon Landlord's written request
from time to time, but not more than once per Lease Year, Tenant shall, within
ten (10) days after Landlord's request therefor, furnish Landlord financial
statements outlining Tenant's then current financial condition and shall furnish
financial statements outlining the current financial condition of any Guarantor
of this Lease. Landlord shall maintain all financial information provided in a
confidential manner; provided, however, that Landlord may disclose such
financial statements to Landlord's mortgagees or prospective mortgagees or
purchasers.
Section 20.18. General Rules of Construction. (a) This Lease may be
executed in several counterparts and the counterparts shall constitute one and
the same instrument. (b) Landlord may act under this Lease by its attorney or
agent. (c) Wherever a requirement is imposed on Tenant hereunder, Tenant shall
be required to perform such requirement at its sole cost and expense unless it
is specifically otherwise provided herein. (d) (i) Wherever appropriate herein,
the singular includes the plural and the plural includes the singular; (ii)
whenever the word "including" is used herein, it shall be deemed to mean
"including, but not limited to"; and (iii) the words "re-enter" and "re-entry"
as used herein shall not be restricted to their technical legal meaning. (e)
Anything in this Lease to the contrary notwithstanding: (i) any provision hereof
which permits or requires a party to take any particular action shall be deemed
to permit or require, as the case may be, such party to cause such action to be
taken; and (ii) any provision hereof which requires any party not to take any
particular action shall be deemed to require such party to prevent such action
to be taken by any person or by operation of law. (f) Whenever costs or expenses
are required to be assessed to or paid by Tenant, such costs and expenses shall
be reasonable.
Section 20.19. Recording. Neither this Lease nor any memorandum hereof may
be recorded without the express written consent of Landlord.
Section 20.20. Effective Date. For all purposes hereof, the "Effective
Date" of this Lease shall be the date upon which this Lease shall have been
executed by both parties and physically delivered by Landlord to Tenant or its
attorney. Prior to the Effective Date, neither this Lease nor anything hereunder
contained shall be legally binding on either Landlord or Tenant, and the
submission of this Lease by Landlord to Tenant prior to such Effective Date for
examination or consideration by Tenant or discussion between Landlord and Tenant
shall not constitute a reservation of or option for the Leased Premises or
create any legal obligation or liability whatsoever on Landlord.
Section 20.21. Headings. The captions, section numbers, article numbers and
index appearing in this Lease are inserted only as a matter of convenience and
in no way define, limit, construe, or describe the scope or intent of such
sections or articles of this Lease nor in any way affect this Lease.
Section 20.22. Managing Agent. Landlord has advised Tenant that it has
appointed Management Associates Limited Partnership, a Delaware limited
partnership as managing agent of the Retail Development (said managing agent and
any successor or substitute managing agent is hereinafter referred to as
"Managing Agent"). Tenant shall, until otherwise notified by Landlord, make all
payments of Rent required to be made pursuant to this Lease to the Managing
Agent payable to Landlord and direct all notices, inquiries or other
communications to the Managing Agent, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 20.23. Non-Discrimination. Tenant herein covenants by and for
itself, its successors and assigns, and all persons claiming under or through
them, and this Lease is made and accepted upon and subject to the following
conditions: That there be no discrimination against or segregation of any person
or group of persons, on account of race, color, religion, creed, national
original, ancestry, handicap, age, marital status, or sex in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein
leased, nor shall Tenant, for itself, or for any person claiming under or
through it, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land
herein leased.
Section 20.24. Lease Contingency. This Lease is contingent and
conditioned upon the securing by Landlord of financing for the Retail
Development on terms and conditions, and at a rate of interest and in a loan
amount, satisfactory to Landlord in its sole and absolute discretion (herein
referred to as the "Lease Contingency"). In the event the foregoing Lease
Contingency has not been satisfied on or before December 31, 1999, then Landlord
shall thereafter have the right to terminate and cancel this Lease upon thirty
(30) days prior written notice to Tenant. If the Lease Contingency shall be
satisfied prior to the expiration of the aforesaid thirty (30) day notice
period, then the notice to terminate and cancel shall be voided and this Lease
shall remain in full force and effect. In the event of termination of this Lease
as herein provided, this Lease shall cease and come to an end, Landlord shall
reimburse Tenant for any advance Rent paid, and there shall thereupon be no
further liability or obligations upon either party under or with respect to this
Lease. Each party will, at the other's request, execute an instrument in
recordable form containing a release and surrender of all right, title and
interest in and to this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of
the day and year first above written.
WITNESS: LANDLORD:
ORANGE CITY ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware limited partnership
By: Orange City ▇▇▇▇▇, L.L.C., a Delaware limited liability company
Its: General Partner
By: The ▇▇▇▇▇ Limited Partnership, a Delaware limited partnership
Its: Manager
By: The ▇▇▇▇▇ Corporation, a Delaware corporation
Its: General Partner
By: _________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
By: ____________________
By: ____________________ TENANT:
TOYS INTERNATIONAL, INC., a California corporation
By: __________________
WITNESS/ATTEST: Name:____________________
Its: ____________________
:
By: __________________
By: ____________________ Name:____________________
Its: ____________________
By: ____________________
Tenant's Corporate Seal:
By: ____________________
By: ____________________
ACKNOWLEDGEMENT OF LANDLORD
COMMONWEALTH OF VIRGINIA )
) ss.
COUNTY OF ARLINGTON )
On this ____ day of ____________________, 19____, before me personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, to me known to be the person who executed the foregoing
Lease and acknowledged before me that she was duly authorized and did execute
same on behalf of ORANGE CITY ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware limited
partnership.
-----------------------------------
Notary Public
My Commission expires:_____________
ACKNOWLEDGEMENT OF CORPORATE TENANT
STATE OF )
) ss.
CITY/COUNTY OF )
On ____________________, 19____, before me _____________________, a
Notary Public in and for said state aforesaid, personally appeared
__________________________as _______________________and
________________________, as _______________________ of TOYS INTERNATIONAL,
INC., a California corporation, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
-----------------------------------
Notary Public, ____________ County,
My Commission expires:_____________
[Notarial Seal]
EXHIBIT F
COMMENCEMENT AND EXPIRATION DATE DECLARATION
LANDLORD:
TENANT:
LEASE DATE:
STORE NUMBER:
Landlord and Tenant acknowledge and agree that the Commencement Date of the
above referenced Lease is and the Expiration Date of the Lease is .
----------------------------------------------------
--------------------------------------------------------
LANDLORD: TENANT:
By: By:
Its: Its:
Date: Date:
EXHIBIT G
WAIVER OF SALES TAX CONFIDENTIALITY
Date: _________________
I authorize the Comptroller of Public Accounts to release sales tax
information pertaining to the taxpayer indicated below to Orange City ▇▇▇▇▇
Limited Partnership, c/o The ▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. I understand that this waiver applies only at
our retail store located in City ▇▇▇▇▇ at Orange in Orange, California.
Please print or type the following information as shown below on your
California Sales and Use Tax Permit:
------------------------------------------------------------------------------
Name of Taxpayer Listed on California Sales Tax Permit
------------------------------------------------------------------------------
Name Under Which Taxpayer is Doing Business (d/b/a or Outlet Name)
------------------------------------------------------------------------------
Taxpayer Mailing Address
-------------------------------------------------------------------------------
Physical Location of Business Permitted for Sales Tax in Orange, California
------------------------------------------------------------------------------
California Taxpayer ID Number Tax Outlet Number
(As Shown on California Sales Tax Permit)
--------------------------------
Authorized Signature
--------------------------------
Print Name of Authorized Signature
--------------------------------
Position of Authorized Signature
--------------------------------
Phone Number of Authorized Signature
EXHIBIT H
AGREEMENT OF SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT
THIS AGREEMENT is made this ________day of _______________________, 19___, by
and among ORANGE CITY ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware limited partnership
having an office c/o The ▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Lessor"), TOYS INTERNATIONAL, INC., a California
corporation, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Lessee") and BAYERISCHE HYPOTHEKEN- UND WECHSEL-BANK AKTIENGESELLSCHAFT,
acting by and through its New York branch, having offices at Financial Square,
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, it successors and assigns or an
affiliate ("Lender"), for itself and as agent ("Agent") for, and as co-lender
with one or more co-lenders.
W I T N E S S E T H :
WHEREAS, Lender is providing financing for CITY ▇▇▇▇▇ shopping center
in Orange, California (the "Property"):
WHEREAS, under a certain lease (the "Lease") Lessor did lease, let, and
demise a portion of the Property (such portion of the Property is hereinafter
called the "Premises") to Lessee:
WHEREAS, Lender had or will become the owner of an indebtedness secured
by, among other things, a deed of trust, made by Lessor, as trustor, for the
benefit of Lender, as beneficiary (the "Deed of Trust"), and an assignment of
Lessor's interest in the Lease for the benefit of Lender ("Assignment of
Leases"):
NOW, THEREFORE, in consideration of the covenants, terms, conditions
and agreements herein contained, and in consideration of other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Lease and all rights and liens created thereby shall be subject and
subordinate in all respects to the Deed of Trust and the lien created thereby,
to any advancements made thereunder, and to any increases, extensions,
modifications or renewals thereof.
2. So long as Lessee is not in default under the Lease beyond any
applicable grace or cure period, Lender hereby covenants to Lessee that in the
event it obtains title to the Premises, either by foreclosure or by deed in lieu
of foreclosure, and thereafter obtains the right of possession of the Premises,
that the Lease will continue in full force and effect, and Lender shall
recognize the Lease and Lessee's rights thereunder.
3. Lessee agrees that from and after the date hereof in the event of any
act or omission by Lessor under the Lease which would give Lessee the right,
either immediately or after the lapse of a period of time, to terminate the
Lease, or to claim a partial or total eviction, Lessee will not exercise any
such right (a) until it has given written notice of such act or omission to
Lender by certified mail, return receipt requested, and (b) until and unless
Lender fails to remedy such act or omission within thirty (30) days for any act
or omission which can be cured by the payment of money, or in the case of any
other act or omission, as long as necessary to remedy such act or omission,
provided (i) Lender commences such remedy with thirty days, and (ii) Lender
pursues completion of such remedy with due diligence following such giving of
notice and following the time when Lender shall have become entitled under the
Deed of Trust to remedy the same. It is specifically agreed that Lessee shall
not, as to Lender, be entitled to require cure of any such default which is
personal to Lessor, and therefore not susceptible of cure by Lender, and that no
such uncured default shall entitle Lessee to exercise any rights under the Lease
with respect to Lender.
4. That in the event the interests of Lessor under the Lease shall be
transferred to Lender or any nominee, designee, assignee of Lender or any
purchaser at foreclosure sale (Lender or such other party referred to as a
"Lender Party") by reason of foreclosure, deed in lieu of foreclosure, or
similar transaction. Lessee hereby covenants and agrees to make, for the benefit
and reliance of Lender, full and complete attornment to the Lender Party as
substitute lessor upon the same terms, covenants and conditions as provided in
the Lease, except to the extent otherwise set forth herein.
5. The provisions of this Agreement be real covenants running with the
Property, and shall be binding upon and inure to the benefit of the respective
parties hereto and their respective heirs, executors, administrators,
beneficiaries, successors and assigns, including without limitation any Lender
Party.
6. Notwithstanding anything contained herein to the contrary, or anything
to the contrary in the Lease, Lender and any Lender Party shall not be:
(a) Liable for any act or omission of Lessor, including without limitation,
any delay in opening the Project or the Premises for occupancy and any failure
to complete the construction of the Premises or the Project or any improvements
therein;
(b) Subject to any offsets, claims or defenses which Lessee might have
against Lessor;
(c) Required or obligated to credit Lessee with any rent for any period
beyond the then current rental period which Lessee might have paid Lessor;
(d) Bound by any amendments or modifications or voluntary termination of
the Lease made without Lender's prior written consent, other than exercise of
rights, options or elections contained in the Lease; or
(e) Bound to or liable for refund of any security deposit except to the
extent actually received by Lender or a Lender Party.
7. Lessee shall not, without the express written consent of Agent:
(a) Cancel, terminate or surrender the Lease, except as provided therein or
in any modification or amendment specified herein or hereafter consented to by
Lender;
(b) After the date hereof, enter into any agreement with Lessor or its
successors or assigns, which grants any concession with respect to the Lease or
which materially compromises, discounts or otherwise reduced the rent called for
thereunder; or
(c) After the date hereof, prepay rent more than one (1) month in advance.
8. Lessor and Lessee hereby jointly and severally agree for the benefit and
reliance of Lender, that neither this Agreement, nor any assignment of the Lease
for collateral purposes, nor anything to the contrary in the aforesaid Lease or
in any modifications or amendments thereto shall, prior to Lender's acquisition
of Lessor's interest in and possession of the Property (and thereafter, only to
the extent of the Property and not personally), operate to give rise or create
any responsibility or liability upon Lender for the control, care, management or
repair of the Property by any party whatsoever so for any dangerous or defective
condition of the Property; or impose responsibility for the carrying out by
Lender of any of the covenants, terms and conditions of the Lease or any
modification or amendment whether or not hereafter consented to by Lender, or
for any negligence in the management, upkeep, repair or control of said Property
resulting in loss, injury or death to any lessee, licensee, invitee, guest,
employee, agent or stranger. Notwithstanding anything to the contrary in the
Lease, Lender, its successors and assigns (and any Lender Party, as
appropriate), shall be responsible for performance of only those covenants and
obligations of the Lease accruing after Lender's its successors' and assigns'
(or Lender Party's, as appropriate), acquisition of Lessor's interests in and
possession of the Property.
9. Lessee covenants and agrees to make rental payments according to the
terms of such Assignment of Leases upon written demand by Lender in the event of
any default (as described therein). Lessor consents to payments being so made.
10. Lessee agrees that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance
agreement.
11. Any notices hereunder shall be effective upon mailing by certified
mail, return receipt requested, or delivery by Federal Express addressed to the
recipient at its address set forth in the preambles hereof or as to each party,
to such other address as the party may designate by a notice given in accordance
with the requirements contained herein.
12. This Agreement contains the entire agreement between the parties
hereto. This instrument may be executed in multiple counterparts, all of which
shall be deemed originals and with the same effect as if all parties hereto had
signed the same document. Signature and acknowledgment pages may be detached
from the counterparts and attached to a single copy of this document to
physically form one document.
EXECUTED as of the date first above written.
LESSOR: ORANGE CITY ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware limited partnership
By: Orange City ▇▇▇▇▇, L.L.C., a Delaware limited liability company
Its: General Partner
By: The ▇▇▇▇▇ Limited Partnership, a Delaware limited partnership
Its: Manager
By: The ▇▇▇▇▇ Corporation, a Delaware corporation
Its: General Partner
By: _________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
LENDER: BAYERISCHE HYPOTHEKEN- UND WECHSEL-BANK AKTIENGESELLSCHAFT,
for itself and as Agent
By: _______________________________
Name: _______________________________
Title: _______________________________
By: _______________________________
Name: _______________________________
Title: _______________________________
LESSEE: TOYS INTERNATIONAL, INC., a California corporation
By: _________________________
Its: _________________________
Tenant's Corporate Seal:
ACKNOWLEDGEMENT OF LESSOR
COMMONWEALTH OF VIRGINIA )
) ss.
COUNTY OF ARLINGTON )
On this ____ day of ____________________, 19____, before me personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, to me known to be the person who executed the foregoing
Exhibit H and acknowledged before me that she was duly authorized and did
execute same on behalf of ORANGE CITY ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware
limited partnership.
-----------------------------------
Notary Public
My Commission expires:_____________
ACKNOWLEDGEMENT OF LENDER
STATE OF )
-----------------------------------------------
) ss.
COUNTY OF )
On this ____ day of ____________________, 19____, before me, _________,
notary public, personally appeared _____________ and ______________, proved to
me on the basis of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities and that by their signatures on the
instrument the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and
official seal.
-----------------------------------
Notary Public
My Commission expires:_____________
[Notarial Seal]
ACKNOWLEDGEMENT OF LESSEE
STATE OF )
) ss.
CITY/COUNTY OF )
On ____________________, 19____, before me _____________________, a
Notary Public in and for said state aforesaid, personally appeared
_______________________________, as _______________________ of TOYS
INTERNATIONAL, INC., a California corporation, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
-----------------------------------
Notary Public, ____________ County,
My Commission expires:_____________
[Notarial Seal]
================================================================================
SPECIALTY TENANT LEASE EXHIBIT
================================================================================
EXHIBIT C
LANDLORD'S WORK - ROUGH SHELL
Preface
Work to be performed by Landlord in constructing the Leased Premises shall
be limited to those items expressly set forth below as Landlord's Work in this
Exhibit C ("Landlord's Work") and Tenant shall pay Landlord's charge for such
work as described herein. All other items of work, including the purchase and
installation of all materials and equipment necessary for Tenant's use of the
Leased Premises, shall be provided by Tenant at Tenant's sole expense, and shall
include but shall not be limited to those items set forth in Exhibit D
("Tenant's Work").
The building in which the Leased Premises are a part shall be designed by
the architect and engineer retained by the Landlord to design and oversee
construction of the Retail Development (herein sometimes referred to as "The
Project"). Construction shall meet the requirements for a fully sprinkled
building in accordance with the fire protection and building code program of the
local jurisdictional authority as well as the Development Agreement and Master
Declaration governing The Project, if applicable.
Landlord shall provide Tenant with a Tenant Handbook (Tenant Design
Criteria) hereinafter referred to as "Tenant Handbook".
Except as otherwise provided below, Landlord shall initially construct the
following:
A. BUILDING SHELL WORK WITHIN AND AROUND THE LEASED PREMISES
1. Shell. Landlord shall construct the building shell (building structure,
insulated roof and exterior walls) in which the Leased Premises are to be
located. It is expressly agreed and understood that the Leased Premises shall
constitute a portion of an open air mall building.
2. Exterior Appurtenances. Public entrance features, canopies and screen
walls at the exterior of the building structure shall be provided by the
Landlord in locations and of the design and in materials deemed appropriate by
Landlord.
3. Outside Walls. If the Leased Premises abuts an exterior wall, such wall
shall be unfinished on the interior metal stud with insulation only. Tenant
shall install drywall on the interior side of the wall from the finished floor
to the metal roof at Tenant's expense. The exterior side of the wall shall be
finished by the Landlord.
4. Demising Partitions. Demising partitions are not load bearing and Tenant
may not hang fixtures from them. Should Tenant require structure and/or backing
to accommodate the loading of Tenant's wall hung fixtures, said request shall be
in writing to Landlord for approval. Additional structure and backing shall be
furnished and installed by Tenant at Tenant's expense. Tenant shall install
drywall, (taped and floated) and paint on demising partitions between leased
premises up to the roof deck.
5. Demising Strip. Where the Landlord desires, a vertical demising strip
may be located at the storefront line between stores. The centerline and/or
backside of said strip may or may not precisely coincide with the lease line
defining the Leased Premises.
6. Exterior Service /Exit Door. Where the Leased Premises abuts an outside
wall, Landlord shall install one (1) 3'0 x 7'-0" (nominal) x 1 3/4" hollow metal
door and frame with (11/2pair butts and temporary lockset) as required by Code
or Landlord's insurance carrier. The outside face of door will be finished by
Landlord to match adjacent construction and may not be modified by Tenant. The
location of such door ( if any) will be indicated on the Lease Outline Drawing.
Tenant store name and space number will be applied on or adjacent to the door by
Landlord per Landlord's Architect's specification's in accordance with Exhibit
D.
7. Interior Service/Exit Door. Where the Leased Premises abuts an interior
service/exit corridor, Landlord shall install one (1) 3'-0" x 7'-0" (nominal) x
1 3/4" hollow metal door and frame (with 11/2pair butts and temporary lockset) ,
as required by code or Landlord's insurance carrier. The hollow metal door and
frame will be finished painted on the corridor side with a color selected by
Landlord. Tenant's store name and space number will be applied on or adjacent to
the door by Landlord, per Landlord's Architect's specification in accordance
with Exhibit D.
8. Floor Slab. Landlord shall furnish a 4" thick slab on grade with smooth
trowelled concrete surface. The floor elevation will be above the finished floor
elevation in the mall areas adjacent to the Leased Premises.
9. Storefronts and Bulkheads. Landlord shall design and construct all
tenant storefronts and bulkheads. The configuration of the storefront lease
line, as established by Landlord, shall be the line beyond which no element of
the storefront may extend and may not necessarily follow the line of
construction. The storefront furnished by the Landlord shall be framed aluminum
storefront system with one entry. The entry shall be a pair of 3'-0" x 7'-0"
(nominal) medium stile doors and hardware. A temporary lockset may be installed
by the Landlord. The final lockset and keying shall be by Tenant.
B. FINISH WORK OUTSIDE OF THE LEASED PREMISES
1. Exterior Areas. Landlord shall provide parking areas, access roads,
delivery areas, drainage systems, walks, ramps (if required), lighting ,
landscaping and planting, striping, signage and other facilities and
improvements as determined by the Landlord in the exterior common area.
2. Common Areas. Landlord shall provide courts and entry-ways, lighted
delivery areas, service and exit corridors, ramps (if required), public
restrooms, meter and valve rooms or areas, and all other areas, facilities and
buildings used in the maintenance and operations of The Project as determined by
the Landlord.
C. BUILDING UTILITY SYSTEMS SERVING THE LEASED PREMISES
1. VAC System. Landlord will provide a roof-top air conditioning unit
("RTU"). The Landlord will install a roof opening, curb and RTU. Landlord shall
provide a connection point within the Leased Premises for Tenant's sanitary
vent.
2. Electrical System. Landlord shall bring primary electrical service to
the Retail Development. An empty conduit only, shall be extended by the Landlord
from an electrical room to a point within the Leased Premises as indicated on
the Lease Outline Drawing. Electrical service furnished by Landlord shall
consist of 277/480 volt, 3 phase, four wire service of size and capacity values
as described in the Tenant Handbook. Tenant to complete electrical system in
accordance with Exhibit D and the Tenant Handbook.
3. Plumbing System. Landlord shall provide a valved and capped domestic
cold water line, and a sanitary sewer line at the rear of Leased Premises, as
indicated on the Lease Outlines Drawing. Tenant shall connect to Landlord's
plumbing system and extend services within the Leased Premises according to
Tenant's approved plans and in accordance with requirements of Exhibit D and the
Tenant Handbook.
4. Sprinkler Systems. Landlord shall install a wet sprinkler fire
protection system within the Leased Premises. The system shall include, but not
be limited to, risers, bulk mains, cross mains, branch lines, and upturned
sprinkler heads at the underside of the ceiling. Within the Leased Premises, the
sprinkler system provided by the Landlord shall have one (1) sprinkler head per
100 square feet of Leased Premises. The quantity of heads provided by the
Landlord shall be the minimum required by Code or local governing authorities.
Mains and cross mains shall be designed to accept additional heads up to a
maximum coverage of one (1) head per 80 square feet of Leased Premises. Landlord
shall design the sprinkler system to code in accordance with the Landlord's
white box drawings for the Leased Premises.
5. Telephone System. Landlord shall provide either an open cable tray or
empty conduit from a telephone junction board to a point within or adjacent to
the Leased Premises as indicated on the White Box drawings.
6. Gas Distribution. Landlord shall negotiate with the local utility
company providing gas service to bring gas service to a service/metering point
in the Retail Development. Any available gas service, including the quantity
thereof, will depend upon the availability of gas provided to Landlord's
building by the Utility Company. Gas service is available to Restaurant and Cafe
Tenants for cooking purposes only and for a built-in gas furnace in the Tenant's
VAC Unit. Tenant's requiring gas shall arrange with the local utility providing
gas service for the service connection at the servicing/metering point provided
in the Retail Development. The Landlord reserves the right to allocate gas
service within The Project if the utility company providing the service limits
the quantities of gas supplied to The Project.
D. GENERAL PROVISIONS
1. Minor changes in any plans or specifications covering the Landlord's
scope of work which may be necessary during the design or construction of The
Project or the Leased Premises shall not in any way invalidate the terms of the
Lease or this Exhibit C, nor shall it require that the Landlord provide any work
not described herein.
2. Landlord shall have the right to specify or change the location, either
before or after the construction of all utility lines, condenser water lines,
condensate drain lines, drains, sprinkler mains and valves, and such other
facilities within the Leased Premises as are necessary by engineering design
and/or Code Requirements. These items as described above shall be located so as
not to materially interfere with the Tenant's use of the Leased Premises.
Landlord shall have the right to relocate and specify the location of mechanical
and other equipment on the roof over the Leased Premises.
3.
4. Landlord shall have the right to perform, at Tenant's Expense, any of
the Tenant's Work which the Landlord determines in its sole discretion to be
performed (a) immediately and/or on an emergency basis for the best interest of
The Project, (b) to the extent required for Landlord Compliance with all
applicable building codes, or, (c) to the extent necessary to obtain any
Certificate of Occupancy required by the Landlord or any other tenant in The
Project.
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SPECIALTY TENANT LEASE EXHIBIT
================================================================================
EXHIBIT D
TENANT'S WORK - ROUGH SHELL
Preface
This Exhibit "D" is intended to describe the obligation of the Tenant in the
design and construction of the Leased Premises. Landlord's Work will be limited
to the work described in Exhibit C. Landlord's Work for Tenant in this Exhibit D
will be accomplished by Landlord at Tenant's expense. The work of Tenant
described in Exhibit D is intended to complete the Leased Premises in accordance
with Tenant's drawings as approved in writing by Landlord to a finished
condition ready for the conduct of business therein ("Tenant's Work"). All
finished installations will be deemed incomplete until approved by Landlord.
Tenant's Work shall conform to the procedures, schedules and reimbursement
requirements set forth in Sections 2 and 3 of this Exhibit. Exhibit D shall
govern over any inconsistencies with Exhibit C.
Landlord and Tenant have a common interest in opening the Leased Premises on the
Commencement Date. To this end, Landlord will coordinate its work with Tenant's
Work insofar as the schedule for such Commencement Date and prudent construction
practice will allow and will assign one or more tenant coordinators to function
as liaison between Tenant and Landlord. Further to this end, Tenant and Tenant's
contractors agree to abide by Landlord's Construction Rules and Regulations
which may be issued from time to time. In order to ensure that the Tenant's
store interior and signage design are orderly and aesthetically coordinated with
Landlord's building, and to ensure that Landlord's storefront and signage
requirements are understood by Tenant, its designers, engineers, contractors,
and other representatives, Landlord has drafted and Tenant shall follow the
architectural and signage criteria established in the Tenant Handbook (Tenant
Design Criteria) hereinafter referred to as "Tenant Handbook". In order to
ensure that the Tenant's VAC, (venting, airconditioning) systems are compatible
and coordinated with the Landlord's building, and to ensure that the Landlord's
VAC, plumbing and electrical requirements are understood by Tenant, its
designers, engineers, contractors, and other representatives, Landlord has
drafted and Tenant shall follow the mechanical and electrical criteria
established in the Tenant Handbook.
All Tenant construction shall be in accordance with the requirements of all
applicable codes, ordinances, rules and regulations of all authorities having
jurisdiction over the work including all requirements of the Landlord's
insurance carrier.
Construction shall conform to the requirements for a fully sprinklered
building in accordance with the fire protection and building code program of the
local jurisdictional authority as well as the Development Agreement and the
Master Declaration governing "The Project" if applicable. Tenant shall secure
all necessary permits including, but not limited to, occupancy and health
department permits from the jurisdictional authorities in sufficient time to
allow Tenant to open the Leased Premises on the Commencement Date. Tenant shall
furnish to Landlord upon receipt, copies of all building permit applications,
statements, amendments and the like, and all permits, inspection reports,
certificates, and other documents as required by authorities having jurisdiction
of The Project.
Tenant, at its sole cost and expense, shall perform all work other than work to
be performed by Landlord as set forth in Exhibit C, required to complete the
Leased Premises to a finished condition ready for the conduct of business
therein.
All of Tenant's Work within the Leased Premises performed pursuant to this
Section l shall, for the purpose of this Lease to which this Exhibit is
attached, shall be deemed to be improvements made to the Leased Premises by
Tenant at Tenant's expense.
SECTION 1 - TENANT CONSTRUCTION WORK WITHIN THE PREMISES
A. GENERAL CRITERIA
The criteria and outline specifications set forth herein represent
minimum standards for the design, construction, and finish of the Leased
Premises by Tenant.
1. Jurisdictions and Codes. The project is being developed in and under the
jurisdictions of the State, County, and the City in which The Project is
located. All design and construction work shall comply with all applicable
statutes, ordinances, regulations, laws and codes and the requirements
pertaining to service and utilities furnished by utility companies, all
applicable state, county, and local statutes and ordinances, and OSHA
regulations. All design construction shall meet the requirements stated in the
guidelines for the American Disabilities Act (ADA).
2. Permits and Approval. Prior to the commencement of construction, all
building and other permits shall be obtained and posted in a prominent place
within the Leased Premises. Landlord's written approval shall be obtained by
Tenant prior to the undertaking of any construction work which deviates from
Tenant's approved Store Working Drawings and Specifications, or which modifies
whatsoever Landlord's building shell or utilities, or any work not explicitly
shown on said Store Working Drawings and Specifications. Landlord's approval of
the foregoing shall not constitute the assumption of any responsibility by
Landlord for the accuracy or sufficiency thereof, and Tenant shall be solely
responsible.
3. Floor Loads. The slab on-grade has been designed to carry a total load
(dead and live) of 125 pounds per square foot. Any loading imposed by any of
Tenant's Work, either on a temporary or permanent basis, shall not exceed 125
lbs./SF ("Allowable Load").
4. Standard Project Details. Standard Project Details, as issued by
Landlord's Architect from time and time and as they pertain to Tenant's Work,
shall govern with respect to Tenant's Work. Such details shall be incorporated
into the Tenant's Store Working Drawings and Specifications for the Leased
Premises.
5. Materials. Only new, first-class materials shall be used in the
construction of the Leased Premises. Used, first-class materials for interior
architectural facades and fixtures may be used provided such materials are noted
on the Tenant's plans and approved by Landlord through field inspection.
6. Field Conditions. From time to time, the Tenant is obligated to verify
conditions pertaining to the Leased Premises prior to and after commencement of
construction of its Leased Premises. Tenant shall coordinate its work with the
work of Landlord, other tenants, and with existing conditions above, below and
adjacent to the Leased Premises. Tenant shall make changes as required to
accommodate such work or conditions.
7. Tenant Handbook. Landlord shall provide Tenant with the Tenant Handbook
and Tenant shall comply with all design criteria, procedures for drawings,
specifications, and construction, and other rules, regulations and provisions
therein. To the extent, if at all, that the Tenant Handbook may conflict with
the provisions of this Exhibit D, the provisions of the Tenant Handbook shall
govern.
B. ARCHITECTURAL FINISHES
1. Floors. Tenant's finish floor covering materials must be selected and
adapted in thickness to correspond in elevation exactly with the level of the
finished surface material of the mall common area. Quality floor materials, such
as carpeting, glazed or unglazed tile, wood parquet or marble, shall be used in
the sales area of the Leased Premises. However carpet is not allowed within the
first 5'-0" of the Leased Premises. All flooring finish materials are subject to
Landlord's approval
2. Storefront. Tenant's storefront shall be designed and constructed by
Landlord as provided in Exhibit C and as described in the Tenant Handbook.
3. Interior Partitions. All interior partitions by Tenant within the Leased
Premises shall be metal stud with 5/8" gypsum board construction, and shall be
taped, floated, sanded, and painted. Any combustible materials applied to
partitions shall meet all flame spread and smoke generation requirements of
jurisdictional authorities and receive a U.L. labeled fire retardant coating if
required by code. Any Tenant penetrations of rated partitions shall be
specifically approved in writing by Landlord and governing authorities as a
portion of the permitting process.
4. Demising Partitions. Demising partitions are not load bearing and Tenant
may not hang fixtures from them. Should Tenant require structure and/or backing
to accommodate the loading of Tenant's wall hung fixtures, said request shall be
in writing to Landlord for approval. Additional structure and backing shall be
furnished and installed by Tenant at Tenant's expense. Tenant shall install
drywall, taped, floated, sanded and painted on demising partitions between
Tenant spaces up to at least 12' - 0" above concrete. Drywall may be placed on
demising partition above 12'-0" without Landlord's specific approval.
A demising cap, supplied by the Landlord will be installed on
the storefront glass at the location of the demising partition or at any
location along the storefront that the landlord deems necessary.
5. Exterior Walls. Tenant shall install all finishes on the inside face
of exterior walls up to deck within Leased Premises.
6. Service and Exit Corridor Partitions. Any Tenant penetrations of
rated partitions, and relocations and/or additions to Landlord furnished exit
doors, shall be specifically approved in writing by Landlord and governing
authorities as a portion of the permitting process. Any framing, cutting,
patching of the corridor wall surfaces including the building of vestibules to
provide for the non-impingement of the door into the corridor traffic way, and
other work related construction shall be coordinated and consistent with
Landlord's Work (including but not limited to the provision of 4'-0" high 1/4"
masonite board and metal cornerguards). On walls dividing the Leased Premises
from service and exit corridors, or other rated enclosures, the Tenant shall
provide on the Tenant's side, sufficient layers of drywall to complete the
necessary rating. All materials used in corridor construction shall be fire
rated. Any Tenant penetrations of rated partitions shall be specifically
approved in writing by Landlord and governing authorities as a portion of the
permitting process.
7. Additional Interior Service/Exit Corridor Doors. If Tenant desires
additional service access to the Leased Premises other than what is provided by
Landlord in Exhibit C, then Tenant shall such submit a request to the Landlord
in writing. Upon receiving written approval by the Landlord, the tenant shall
provide and install an interior hollow metal door, labeled as required, with a
hollow metal frames, and all hardware, in accordance with governing codes. Any
framing, cutting, and patching of the corridor wall surfaces including the
building of vestibules to provide for the non-impingement of the door into the
corridor traffic way, the other work related thereto shall be the responsibility
of the Tenant. Hollow metal door and frame are to be finish painted on the
corridor side with a color selected by Landlord. Tenant's store name will be
applied on or adjacent to the door by Landlord, at Tenant's expense, per
Landlord's Architect's specifications.
8. Door Relocation. The relocation of any exterior Tenant door shall be
performed by Landlord at Tenant's sole expense and must be coordinated with the
structure of Landlord's building.
9. Door Hardware. Tenant shall furnish and install all door locks and exit
devices on all interior service doors, exterior doors, exit corridor doors, and
storefront, using hardware recommended by Landlord in the Tenant Handbook.
10. Ceiling. All work related to ceiling and ceiling treatments, if any,
shall be the responsibility of Tenant. Tenant's ceiling shall be limited to a
ceiling height not less than 6" above the height of the storefront, nor higher
than the maximum heights indicated in the Tenant Handbook.
All ceilings and ceiling treatments shall be on non-combustible material
approve by Landlord and shall maintain the degree of openness required by the
jurisdictional authority and/or described in the Tenant Handbook. All structural
loads shall be specifically approved to Landlord's structural engineer for the
location and method of support.
If Tenant's interior partitions and ceiling configuration cause the
requirement of additional sprinkler heads, such additional heads shall be
installed by Landlord's designated contractor at Tenant's expense (unless
otherwise agreed upon by Landlord in writing) both as required by jurisdictional
authority and landlord's insurance carrier.
11. Interior Finishes. All finished interior surfaces must be materials
approved by Landlord for appearance. All Tenant fixtures, furniture, carpeting
(including underlayment), upholstery materials, drapery and other furnishing
must comply with flammability of materials and smoke generation requirements for
furniture and furnishings of local jurisdictional authorities. All wood shall be
fire retardant in accordance with code requirements. All wood in contact with
the floor shall be termite retardant.
12. Finish Hardware. Commercial grade finish hardware, labeled where
required, shall be used throughout. If Tenant adds additional door(s) other than
what is provided in Exhibit C then commercial grade finish hardware, labeled
where required, shall be used. All doors shall have at least one and one-half
(1-1/2) pair butts, wall or floor stops, kick plates, lock sets and push-pull
plates as required. All exit doors shall have hardware as required by Code.
13. Toilet Rooms. Tenant shall construct restroom facilities, fixtures,
toilet partitions, and building specialty items such as toilet room mirrors,
dispensers, paper holders and amenities to fully meet the ADA Guidelines and
local codes.
14. Mezzanines. Mezzanines will not be permitted.
15. Layout and Painting of Exposed Mechanical and Electrical Systems. All
Tenant installed duct work, conduits, pipes and any other mechanical or
electrical equipment exposed to public view from outside the Leased Premises,
shall be laid out and installed in a neat and orderly configuration. Tenant
shall paint the above tenant improvements with a color and finish to match
Landlord's finish if such improvements can be seen from the mall common area.
16. Soundproofing. Tenant shall take all precautions to ensure sound is not
transmitted to adjacent tenant spaces or the mall common area.
C. STRUCTURAL
1. Modifications. Any alterations, additions, and/or reinforcements to the
structure of Landlord's building required to accommodate Tenant's Work, must be
designed by a registered structural engineer at Tenant's expense. Tenant shall
leave the structure of Landlord's building as strong or stronger than original
design and with finishes unimpaired. Tenant's architect shall calculate or have
calculated the structural loads caused by Tenant's improvements and submit those
calculations for written approval by Landlord and Landlord's Architect prior to
Tenant's construction.
2. Loading. All loads individually hung from the structure shall be
specifically approved by Landlord's structural engineer for location and method
of support.
D. VENTING AND AIR CONDITIONING
1. VAC System. A complete air conditioning system to suit Tenant's
requirements shall be designed, furnished, installed and maintained by Tenant in
accordance with the requirements of the Tenant Handbook. Tenant's portion of the
VAC system shall include roof-top air conditioning units(s) ("RTU"), ducts,
insulation, fire dampers, outlets, grilles and controls to maintain temperatures
per Tenant Handbook. All Tenant ductwork shall be internally insulated and
Tenant shall make all connections to Landlord installed systems in a manner
fully satisfactory to Landlord. Landlord shall install roof-top curb at Tenant's
expense.
2. Toilet Exhaust System. Tenant installed toilet facilities within the
Leased Premises shall include a complete toilet exhaust system according to Code
and the requirements of the Tenant Handbook.
3. Smoke Venting. If the authority having jurisdiction requires individual
smoke venting from the Leased Premises, Tenant, at Tenant's expense, shall
provide the complete required smoke system, discharging vertically through a
roof vent at sufficient velocity to carry the discharge away from any intakes on
the roof. Roof vents will be installed by Landlord's designated contractor at
Tenant's expense and in accordance with the Tenant Handbook.
4. Exhaust/Negative Pressure. All exhaust and make up air systems shall be
by Tenant in accordance with Exhibit D and the Tenant Handbook. As determined by
Landlord, all Tenants producing odors within their premises shall be required to
install full height partitions and provide supplemental exhaust to the exterior
of the building to keep the premises at a negative pressure relative to
Mainstreet and all adjacent areas
E. ELECTRICAL
1. System. Tenant shall design, furnish, install and maintain a complete
electrical distribution system, including but not limited to conductors to
electrical room connected to load side of Landlord's check meter. Tenant shall
provide the transformer, distribution panels, circuits, conductors, fixtures and
devices, within the Leased Premises in accordance with the requirements of the
Tenant Handbook. No appurtenances, including but not limited to light fixtures,
antennas, signs, etc., will be affixed to the exterior walls or roof of
Landlord's Building without Landlord's express written permission. Electrical
design shall meet standards set forth in Tenant Handbook and identified by Code.
2. Electrical Construction.
a. Material - All electrical materials shall meet National Electrical Code
Standard, unless a better grade is required by local Code. All materials shall
be new and shall bear evidence of approval by Underwriter's Laboratory (UL). ALL
CONDUCTORS SHALL BE COPPER. ALUMINUM CONDUCTORS WILL NOT BE ALLOWED.
b. Lighting Fixtures - Tenant is required to provide light fixtures within
the first 5' of store per the quantity, layout & fixture types designated in the
Tenant Handbook. Recessed fixtures installed in furred spaces shall be connected
by means of flexible conduit and approved fixture wire, connected to a branch
circuit outlet box which is independent of the fixture.
c. Fluorescent Fixtures - All fixtures shall be provided and installed by
Tenant with switch legs and local switches rated 20 amps at 277 volts. All
fluorescent fixtures shall have internal protection devices. Fluorescent
ballasts shall be high power factor type with individual non-resetting overload
protection. Ballast harmonics may not exceed that Total Harmonic Current
Distortion allowable by the electric utility. All lamps subject to public view
shall have warm white deluxe or better color rendition. Cool white may be used .
d. Electric Meter - Landlord will provide electricity from a check meter
and redistribute to tenants.
e. Panel Boards - Panel boards shall be furnished and installed by Tenant.
120/208 volt panels and 277/480 volt panels shall both be equipped with single
or multiple pole bolted thermal magnetic breakers.
f. Short Circuit Ratings - Tenant's electrical distribution system shall be
designed to withstand and safely interrupt an available short circuit current
indicated in the Tenant Handbook.
g. Transformer - All necessary transformers shall be furnished and
installed by Tenant. All ceiling hung transformers shall be approved by
Landlord's Structural Engineer for location and method of support.
h. Nameplates - The following equipment shall be identified with engraved
Bakelite nameplates: distribution panels, motor starters, lighting panels and
push-button stations.
F. PLUMBING
1. System. Tenant shall connect to Landlord's plumbing system as described
in Exhibit C and the Tenant Handbook. Tenant shall provide a complete plumbing
system within the Leased Premises, including but not limited to, fixtures and
toilet accessories as required by Code. Tenant shall provide accessible clean
outs in toilet areas. Plumbing work must be installed according to all
appropriate Codes and requirements of the Tenant Handbook. Landlord's approval
of Tenant's plans is not a statement that the plans are in compliance with Code
or other local requirements. Tenant shall be required to provide vent
connections and a toilet room exhaust connection, if necessary, through the roof
as required by Code and the Tenant Handbook. All such penetrations shall be by
Landlord's designated contractor at Tenant's sole expense.
2. Water Heaters. Electric water heaters shall be automatic and a maximum
capacity of 2 k.w. All units shall be UL approved and conform to the
requirements of the local Energy Code. Water heaters must have
temperature/pressure relief valves with discharge piping according to Code.
3. Water Meters. Tenant shall furnish and install water meters at Tenant's
expense in accordance with the Tenant Handbook.
4. Condensate Drains. Tenant shall extend and connect condensate drain
line(s) from RTU(s) in accordance with the Tenant Handbook.
5. Connection. If Tenant's restroom location, on Tenant's Construction
Documents does not coincide with Landlord's utility location, Tenant, at
Tenant's expense, shall move utility lines to coincide with Tenant's
Construction Documents with Landlord's prior approval. All cutting and placing
of concrete is by Tenant.
G. FIRE PROTECTION SYSTEM
All revisions to the fire protection system required by Tenant's layout
shall be performed by Landlord's designated sprinkler contractor at Tenant's
sole expense (unless otherwise agreed upon by Landlord in writing). The
sprinkler contractor shall design system revisions in accordance with Tenant's
Construction Documents. Such designs may involve additional heads, relocated
heads, heads in refrigeration boxes, toilet rooms, kitchen exhaust ducts, and/or
at Tenant's request, heads located to conform with Tenant's ceiling pattern and
layout. All design and construction shall be governed by Code and the
requirements of Landlord's insurance carrier.
Tenants are required by local code to provide fire extinguishers, at least
one to be installed within 25 feet of the Tenant's entry off the mall common
area.
H. TELEPHONE
Tenant shall arrange directly with the local Telephone Company for
telephone service. The local Telephone Company will bring telephone service to a
point inside the Leased Premises via a raceway provided by Landlord and as
described in Exhibit C. Tenant shall furnish, install and maintain telephone
wiring and equipment within the Leased Premises to suit Tenant's requirements at
Tenant's expense.
I. SIGNAGE
1. Tenant Store Signs- Each Tenant is required to have two (2) storefront
signs. All signs shall be designed, constructed and located in accordance with
Landlord's Sign Criteria, Exhibit E, the Tenant Handbook, and as approved by
Landlord. All signage shall meet criteria set forth by local jurisdictional
authorities and code.
2. Suite Number and Tenant Trade Name. Landlord shall furnish and install a
suite number and Tenant trade name of Landlord's design at all exterior Tenant
doors and interior service/exit corridor doors. Landlord shall also install
suite number on the Tenant's storefront
J. FIXTURES AND FURNISHINGS
Tenant shall furnish and install in the Leased Premises all fixtures,
furnishings, equipment, shelving, trade fixtures, leasehold improvements,
interior decorations, graphics, signs, mirrors, cornices, covers and decorative
light fixtures, portable fire extinguishers as required by Code and the Tenant
Handbook, and other special effects, all as approved by Landlord.
All Tenant improvements, other than ceilings, and lighting fixtures, shall be
floor-mounted unless written approval is obtained from Landlord.
K. MISCELLANEOUS REQUIREMENTS
1. Tenant's Contractor. Work undertaken by Tenant at Tenant's expense (a) shall
not be awarded to Landlord's contractor without Landlord's written consent and
(b) may only be awarded to a reputable and bondable contractor or contractors
licensed to do business in the State, County and City in which The Project is
located. Tenant's general contractor shall give Landlord a $2,000 security
deposit before commencement of construction. The security deposit will be held
against any breakage caused by Tenant's contractor and shall be refunded when
Landlord's construction punchlist is completed.
Tenant's contractor shall adhere to Landlord's policy of a drug and
alcohol free workplace.
2. Equipment Screening. Tenants requiring mechanical or electrical
equipment, antennas, and the like shall not be placed on the roof or the
exterior of the building without the prior express written approval of Landlord.
All such equipment, if allowed, shall be screened from the view of the public
from any point within the project site. All screening materials, construction
details, and construction techniques shall be approved by Landlord in writing,
prior to any such work by Tenant. --------------------
3. Clean-Up. Tenant shall cause its contractors to maintain the Leased
Premises in a clean and orderly condition during construction. All unusable
shipping containers, packaging, and other debris shall be broken down and
contained within the Leased Premises until removed by Tenant's contractor to
containers provided by Landlord outside Landlord's Building. --------
Flammable waste must be confined to covered metal containers until removed
by Tenant. All usable construction material, equipment, fixtures, merchandise,
etc. must always be contained within the Leased Premises. Common Areas, courts,
arcades, public corridors, service/exit corridors and the exterior of Landlord's
Building shall be kept clean at all times. If Tenant fails to clean up, Tenant
hereby authorizes Landlord to clean up for Tenant at Tenant's expense.
4. Full Payment. Tenant shall satisfy Landlord that adequate arrangements
have been made to ensure that all Tenant's contractors shall be paid in full for
work ordered by Tenant. Tenant is advised to familiarize itself with the
mechanic's lien laws in the State in which The Project is located and shall hold
the Landlord harmless for any liens filed against the property of the Landlord
for the work of the Tenant. ------------
5. Character of Employees. Tenant will not employ any unfit person or
anyone not skilled in the work he is performing, or any ▇▇▇▇▇▇▇ that is
incompatible with the balance of the work force or who will cause, or whose
presence will cause, labor disputes or work stoppages. In the event any
employee(s) of Tenant or Tenant's contractor(s) causes a labor dispute or work
stoppage, Tenant expressly agrees to have such employee(s) immediately removed
from the Project upon Landlord's request, and that Tenant's failure to do so
shall constitute an event of Default under the Tenant's Lease of which this
Exhibit is a part.
SECTION 2: PROCEDURE AND SCHEDULES FOR THE COMPLETION OF TENANT'S PLANS AND
SPECIFICATIONS
Unless otherwise notified by Landlord, all prints, specifications, and
other material to be furnished by Tenant as herein required shall be sent to:
Tenant Coordinator (Address to be furnished when available).
Tenant shall engage an architect ("Tenant's Architect") registered in the
State and licensed to do business in the County and the City in which The
Project is located to prepare the Working Drawings and Specifications to be
submitted for Landlord's approval. The fees for Tenant's Architect shall be paid
by the Tenant.
On each occasion that Tenant shall fail to submit or resubmit drawings,
specifications or any amendments thereto within the time periods provided for in
this Exhibit D, and such failure continues for five (5) days following notice
from Landlord that such drawings, specifications or amendments thereto are
overdue, Tenant shall pay to Landlord a fee in accordance with the following
schedule for additional coordination and other services. The payment of this fee
shall not excuse Tenant from default for failure to submit or resubmit drawings
or specifications and shall not preclude the exercise of default or other
remedies by Landlord.
Floor Area of Leased Premises Applicable Amount
1,500 or less sq. ft. $ 250.00
1,501 - 5,000 sq. ft. $ 500.00
5,001 or more sq. ft. $ 1,000.00
A. LEASE OUTLINE DRAWINGS
Following execution of the Lease of which this Exhibit is a part, Landlord shall
furnish Tenant with two (2) prints of the Lease Outline Drawing (LOD) giving
technical and design information relative to the Leased Premises along with
other drawings that may be helpful to Tenant in the design of its store.
B. STORE DESIGN DRAWINGS
1. Within thirty (30) days of whichever of the following shall be the later to
occur: (a) receipt of Lease Outline Drawing from Landlord or (b) the execution
of the Lease; the Tenant shall submit to Landlord one (1) set of sepia
reproducible prints and three (3) sets of blueline prints of Store Design
Drawings, showing the intended design, character, and finishes of the Leased
Premises. The Store Design Drawings shall comply with the design criteria of The
Project as described in this Exhibit D and in the Tenant Handbook and shall set
forth the requirements of Tenant within the Leased Premises. Said Drawings shall
include, but not be limited to the following:
a. Architectural design of the space, including an elevation of Landlord's
storefront showing Tenant's signage, floor plans, elevations, sections, and
renderings indicating material and color selections and finishes, and layout
including location of fixtures both permanent and movable. Provide the weights
of all items to be suspended above from the structure.
b. Mechanical System: Basic equipment to be used and its location, duct
distribution system, diffuser locations, and any louvers or vents to be provided
for Tenant by Landlord at Tenant's expense. Provide projected mechanical loads
on forms provided by Landlord in the Tenant Handbook.
c. Electrical System: Reflected ceiling plans indicating type of lighting
fixtures, and floor plans showing outlets and other electrical equipment
contemplated with location of panel and switchboard. Provide projected
electrical loads on forms provided by Landlord in the Tenant Handbook.
d. Plumbing System: Floor plans showing the location, layout, and type of
fixtures to be furnished, including riser diagrams.
e. Fire Protection System: Location of any specialty heads Tenant's
architect may require.
f. Tenant shall identify in writing all intended exceptions to the design
criteria contained in the Tenant Handbook and/or this Exhibit D, prior ro
preparation of preliminary drawings.
2. After receipt of Store Design Drawings, Landlord shall timely return to
Tenant one (1) set of Store Design Drawings with modifications and/or approval.
If, upon receipt of approved Store Design Drawings bearing Landlord's comments,
Tenant wishes to take exception thereto, Tenant may do so in writing within
seven (7) days from date of receipt of said drawings, by registered or certified
mail, return receipt requested, first class, postage prepaid, or delivered by
Federal Express or a comparably reliable national air courier service (i.e. one
which delivers service in at least 48 states) provided that any such courier
service provides written evidence of delivery, addressed to Landlord, at the
above address, and the notice address in the Lease. Unless such action is taken,
it will be deemed that all comments made by Landlord on Store Design Drawings
are acceptable to and adopted by Tenant.
3. If Store Design Drawings are returned to Tenant with comments, but not
bearing approval of Landlord, said Store Design Drawings shall immediately be
revised by Tenant and resubmitted to Landlord for approval within seven (7) days
of their receipt by Tenant.
C. CONSTRUCTION DOCUMENTS AND SPECIFICATIONS
1. Store Working Drawings and Specifications shall be prepared in strict
compliance with the design criteria and requirements as set forth in this
Exhibit D and the Tenant Handbook and shall adhere to the Store Design Drawings
as approved by Landlord. Store Working Drawings to minimum scales as called for
below, and Specifications shall include, but not be limited to, the following:
a. Key plan showing location of the Leased Premises relative to the entire mall.
b. Floor plan at a minimum scale of 1/4" = 1'0".
c. Overall sections at 1/4" = 1'0".
d. Reflected ceiling plan at a minimum scale of 1/4" - 1'0".
e. Plans, elevations, and section of storefront (if to be constructed by Tenant) at 1/2" = 1'-0",
with finish materials board including manufacturers, model numbers, color numbers, and all other identifying
information. Details of storefront at 1-1/2" = 1'0".
f. Interior elevations at 1/4" = 1'0".
g. Full sections of types of partitions used at 1/2" = 1'0".
h. Details of special conditions encountered at 1-1/2" = 1'-0".
i. Door schedule with jamb details at 1-1/2" = 1'0".
j. Finish and color schedules with sample material boards.
k. Plumbing, ventilating, and cooling plans, at 1/4" - 1'0".
l. Mechanical details at 1-1/2" = 1'0".
m. Electrical plans at 1/4" = 1'0".
n. Electrical details, fixture schedules, and one-line electrical riser diagram.
o. Mechanical and electrical load tabulations on forms provided by Landlord in the Tenant Handbook.
p. Structural load tabulations.
q. Specifications covering all of Tenant's Work, including, but not
limited to, architectural, electrical, plumbing, ventilating, and air
conditioning. r. Layout of fixture location, both permanent and
movable. s. Any and all other plans and specifications as may be
required by the local fire and building authorities or other governing
bodies.
2. All Construction Documents and Specifications prepared by Tenant's
Architect shall be submitted by Tenant, in the form of one (1) set of
reproducible sepia prints, specifications and three (3) sets of blueline prints
to Landlord for approval within 21 days from receipt by Tenant of Landlord's
written approval of Store Design Drawings.
3. As soon as practicable after receipt of Construction Documents and
Specifications, Landlord shall return to Tenant one (1) set of prints of
Construction Documents and Specifications with its suggested modifications
and/or approval. If, upon receipt of approved Construction Documents and
Specifications bearing Landlord's comments, Tenant wishes to take exception
thereto, Tenant may do so in writing, by certified or registered mail, return
receipt requested, first class, postage prepaid, or delivered by Federal Express
or a comparably reliable national air courier service (i.e. one which delivers
service in at least 48 states) provided that any such courier service provides
written evidence of delivery, addressed to Landlord at the above address and at
the notice address in the Lease, within seven (7) days from the date of receipt
of Construction Documents and Specifications. Unless such action is taken, it
will be deemed that all comments made by Landlord on Construction Documents and
Specifications are acceptable to and adopted by Tenant.
4. If Construction Documents and Specifications are returned to Tenant with
comments, but not bearing approval of Landlord, said Store Working Drawings and
Specifications shall immediately be revised by Tenant and resubmitted to
Landlord for approval within seven (7) days of their receipt by Tenant.
5. Construction Documents and Specifications prepared by Tenant's Architect
shall be submitted by Tenant in the form of one (1) set of mylar reproducible
prints and specifications and three (3) sets of blueline prints. "For
Construction" shall be marked clearly on each copy in red. Such drawings and
specifications shall reflect correction of all Landlord's comments to the Store
Working Drawings and specifications returned by Landlord.
6. Store Working Drawings shall be submitted to the local Authorities
having jurisdiction for building permit after such drawings have been approved
by Landlord in the submittal process as outlined above.
7. Landlord and Landlord's architect shall, from time to time, be entitled
to monitor Tenant's Work and shall have the right to require all work which does
not comply with Tenant's approved Store Working Drawings and Specifications to
be corrected within thirty (30) days of notification to Tenant.
SECTION 3: PROCEDURE AND SCHEDULES FOR THE CONSTRUCTION OF THE LEASED
PREMISES BY TENANT
A. COMMENCEMENT OF CONSTRUCTION
Tenant shall start construction of the Leased Premises not later than twenty
(20) days from either of the following dates, whichever shall be the later to
occur: (1) the date of receipt by Tenant of written notice from Landlord that
Landlord has substantially completed the work to be performed by Landlord under
Exhibit C, (other than such work which cannot be performed by Landlord until
Tenant makes the Leased Premises ready for the performance thereof) and that the
Leased Premises are ready for Tenant's Work; or (2) the date on which Landlord
approves the Tenant's Store Working Drawings and Specifications for the Leased
Premises. Tenant shall carry such construction to completion with all due
diligence.
B. GENERAL REQUIREMENTS
1. Tenant shall submit to Landlord, via certified or registered mail,
return receipt requested, first class, postage prepaid, or delivered by Federal
Express or a comparably reliable national air courier service (i.e. one which
delivers service in at least 48 states) provided that any such courier service
provides written evidence of delivery, at least five (5) days prior to the
commencement of construction the following information:
a. Copy of building and all other permits needed to perform Tenant's
Work within the Leased Premises.
b. The names and addresses of the general, mechanical, plumbing and
electrical contractors Tenant intends to engage in the construction of the
Leased Premises.
c. The actual commencement of construction date and the estimated date
of completion of construction work, fixturing work, and date of projected
opening.
d.
e. Itemized statement of estimated construction costs including
architectural, engineering, and contracting fees.
f. Evidence of insurance with a company or companies authorized to
transact business in which The Project is located as required below.
g. Tenant's General Contractor's $2,000.00 Security Deposit.
2. Tenant shall secure, pay for, maintain, and cause its contractors and
subcontractors to secure, pay for, and maintain, during the continuance of
construction and fixturing work within the Leased Premises, all of the insurance
policies required in the amounts as set forth herein, together with such
insurance as may from time to time be required by City, County, State or Federal
laws, Codes, regulations or authorities. Tenant's Work may not commence, nor may
Tenant permit its contractors and subcontractors to commence any work, until all
required insurance has been obtained and certificates of such insurance have
been delivered to Landlord. Insurance policies shall name the Landlord,
Landlord's Architect and General Contractor for the project as additional
insureds. Certificates of Insurance coverage shall provide that no change or
cancellation of such insurance coverage shall be undertaken without thirty (30)
days written notice to Landlord. Landlord shall have the right to require
Tenant, and Tenant shall have the duty, to stop work in the Leased Premises
immediately if any of the coverage required herein lapses during the course of
the work, in which event Tenant's Work may not be resumed until the required
insurance is obtained and satisfactory evidence of same is provided to the
Landlord.
a. Tenant's General Contractor's Required Minimum Coverages and Limits of
Liability.
(1) Worker's Compensation Insurance, as required by State law, and
Employer's Liability Insurance with a limit of not less than $1,000,000 (or more
if required by the law of the State) and any insurance required by any Employee
Benefit Act or similar statute applicable where the work is to be performed as
will protect the contractor and subcontractors from any and all liability under
the aforementioned act(s) or similar statute.
(2) Comprehensive General Liability Insurance (including Contractor's
Protective Liability) in an amount not less than $5,000,000 per occurrence
whether involving personal injury liability (or death resulting therefrom) or
property damage liability or a combination thereof (combined single limit
coverage) with a minimum aggregate limit of $5,000,000. Such insurance shall
include explosion, collapse and underground (X,C and U) coverage and contractual
liability coverage for personal injury, death and damage to the property of
other arising from construction at the Leased Premises, whether performed by
Tenant's contractors, subcontractors, or sub-subcontractors, or by anyone
directly or indirectly employed by any of them.
(3) Comprehensive Automotive Liability Insurance, for the ownership,
maintenance, or operation of any automotive equipment, whether owned, leased or
otherwise held, including employer's non-ownership and hired car liability
endorsements, in an amount not less than $5,000,000 per occurrence and
$5,000,000 aggregate, combined single limit bodily injury and property damage
liability.
Such insurance policies shall insure the Tenant's general contractor and
all subcontractors against any and all claims for bodily injury, including death
resulting therefrom and damage to the property of others arising from its
operations at the Leased Premises or in connection with construction of the
Leased Premises, whether performed by the Tenant's general contractor,
subcontractors, or sub-subcontractors, or by anyone directly or indirectly
employed by any of them.
b. Tenant's Insurance Requirements
(1) Tenant shall obtain Owner's Protective Liability Insurance
as will insure Tenant against any and all liability for damage from bodily
injury, including death resulting therefrom, or property damage or a combination
thereof which may arise from work in connection with the Leased Premises, and
any other liability for damages which Tenant's general contractor and/or
subcontractors are required to insure against under any provisions herein.
Landlord and Landlord's Architect and General Contractor shall be named as
additional insureds. Said insurance shall be provided in minimum amounts of
$5,000,000 aggregate, combined single limit bodily injury and property damage
liability.
(2) Tenant's Work Insurance: Tenant shall insure 100% of the
value of the work in the Leased Premises as it relates to the building
within which the Leased Premises is located, with an "all risk" perils
property insurance policy or a completed value "all risk" perils
Builder's Risk policy, naming the interest of the Landlord and the
Tenant's general contractor and all subcontractors, as their
respective interests may appear, within a radius of one hundred feet
(100') of the Leased Premises.
3. All contractors engaged by Tenant shall be licensed contractors in the
State in which The Project is located possessing good labor relations, capable
of performing quality workmanship and working in harmony with Landlord's General
Contractor and other contractors on the job. All work shall be coordinated with
the general project work.
4. Tenant's contractors and construction shall comply in all respects with
applicable federal, state and local statutes, ordinances, regulations, laws and
codes. All required building and other permits in connection with the
construction and completion of the Leased Premises shall be obtained and paid
for the Tenant.
5. Tenant shall complete all work within the Leased Premises as
expeditiously as possible, but in no event later than in time to open for
business on the Commencement Date. Should Tenant fail to complete its work
within this schedule, Landlord may, at Landlord's option, install a temporary
storefront or barricade at the Leased Premises at Tenant's expense. The costs
and expenses for a temporary storefront and other work performed by Landlord,
which was made necessary due to the Tenant's failure to complete its work in
time for the Commencement Date, shall be payable to Landlord by Tenant.
6. Landlord shall have the right to perform, on behalf of and for the
account of Tenant any of Tenant's Work which Landlord deems necessary to be done
on an emergency basis or which pertains to structural components, the general
utility systems for The Project, roof and exterior wall penetrations, or the
erection of temporary barricades and temporary signs, during construction for
the period following the Opening of The Project for business. Landlord will
provide such work at Tenant's expense.
7. Tenant's Work shall be subject to the inspection and approval of
Landlord and Landlord's Architect.
8. Tenant shall pay or reimburse Landlord for all costs incurred by
Landlord (including deposits) for all utility meters for the Leased Premises.
9. Upon the completion of Tenant's Work, all facilities shall be in full
use without defects.
10. All work performed by Tenant shall be performed so as to cause no
interference with other tenants and the construction and operation of The
Project. Tenant will take all precautionary steps to protect its facilities and
the facilities of others affected by Tenant's Work and properly police same.
Construction equipment and materials are to be located within the Leased
Premises and truck traffic is to be routed in and from the site, all as directed
by Landlord and so as not burden the construction and operation of The Project.
11. Upon and from the completion of Tenant's Work in the Leased Premises
and acceptance by Landlord's Architect, a minimum one-year warranty of all work,
materials, and equipment shall be provided to Landlord by Tenant.
12. Landlord shall have the right to stop Tenant's Work whenever necessary
to obtain compliance with applicable building and safety codes or the approved
Store Construction Documents and Specifications.
13. Tenant and its contractors shall comply with the guidelines for Tenant
Work procedures and temporary construction facilities set forth in the Tenant
Handbook, and Landlord's Construction Rules and Regulations which may be issued
from time to time.
14. Landlord shall have the right to order any Tenant or Tenant's
contractor who willfully violates any of the above requirements to cease work,
and to remove himself and his equipment and employees from The Project.
C. TEMPORARY SERVICES AND FACILITIES DURING CONSTRUCTION
1. Utility costs or charges for any service to the Leased Premises shall be
the responsibility of Tenant from the date Tenant commences work or is obligated
to commence work, whichever is earlier.
2. If necessary, Tenant will provide temporary heat for the Leased Premises
during construction. No open burners are permitted and only electricity may be
used for temporary heat.
3. Temporary Electrical Services. If electrical service is not available in
the Leased Premises during construction, Landlord shall provide electrical
service in an area designated by the Landlord. Tenant shall request, in writing,
permission to connect temporary lines to the power source for service to the
Leased Premises. Tenant shall reimburse Landlord for the Temporary Electric
Services.
4. Temporary Trash Removal. During initial construction, fixturing and
stocking, Landlord shall provide trash removal service from the service areas.
It shall be Tenant's responsibility to break boxes down and place trash daily in
the containers provided. Trash accumulation will not be permitted overnight in
the Leased Premises, mall or service/exit corridors. Tenant shall not allow
trash to accumulate within the Leased Premises nor shall Tenant place any trash
in the service/exit corridor or mall areas adjacent to the Leased Premises.
Tenant shall reimburse Landlord for the Temporary Trash Removal.
The period shall start with the date the Tenant starts construction in the
Leased Premises and ends with the date the Tenant opens for business.
In addition, Tenant shall pay any costs incurred by Landlord in removing
trash from areas in and around the Leased Premises. Landlord's decision as to
which Tenant is responsible for trash left outside the Leased Premises will be
reasonable and equitable, and Landlord's decision will be final.
5. Plans Review/Tenant Coordination. Landlord or its architect and/or
engineer shall review Tenant's plans and specifications for compliance with the
provisions of this Exhibit D and the Tenant Handbook. In addition, Landlord
shall assign a Tenant Coordinator(s) to work with Tenant and Tenant's Architect,
Engineer and contractor for the design and construction of the Leased Premises.
Tenant shall reimburse Landlord for such plan review and tenant coordination.
6. Temporary Storefront. If Tenant is not open for business in the Leased
Premises and Landlord's Retail Development is open, or if, in Landlord's sole
judgment, Landlord determines that a temporary storefront is necessary so as not
to disrupt the construction, opening or operation of any portion of The Project,
then Landlord shall install, at Tenant's expense, for Tenant's use during
construction a full height temporary barricade on the storefront lease line.
Tenant shall reimburse Landlord for the temporary storefront. Upon completion of
Tenant's construction and fixturing in the Leased Premises, Tenant shall remove,
disassemble and dispose of such temporary storefront.
7. Coming Soon Sign. If during Tenant's initial construction, fixturing and
merchandise stocking, The Project is open (or shall open) for business, Landlord
will provide and install, following the earlier to occur of (a) erection of the
initial construction barricade, or (b) completion of the storefront for the
Leased Premises, a "coming soon" sign on the front (barricade or storefront, as
the case may be) of the Leased Premises. Tenant shall reimburse Landlord for
providing such sign.
8. Suite Number and Tenant Trade Name. Landlord shall furnish and install
suite number and Tenant trade name sign adjacent to Tenant's exterior and/or
interior rear exit door(s) in accordance with Landlord's standard. Landlord
shall also install suite number on Mall storefront. Tenant shall reimburse
Landlord for this service.
9. The charges for Temporary Services and Facilities as described in this
subsection C shall be:
Size of Leased Premises Landlord's Charge
9,400 sf The actual cost for the temporary services
shall not exceed $1.00 psf
10. The charges for all work performed or to be performed by Landlord for
or on behalf of Tenant shall be due and payable within thirty (30) days after
billing by Landlord. Landlord may decline at Landlord's sole judgment to proceed
with work at Tenant's expense until Landlord's receipt of payment thereof.
D. COST PLUS ADMINISTRATION FEE WORK BY LANDLORD IN PREMISES AT TENANT
EXPENSE
The following work in the Leased Premises shall only be performed by
Landlord in Landlord's building. The Tenant shall contract with the Landlord to
furnish the following work items if required by Tenant's store design at
Landlord's actual cost plus fifteen percent (15%) for administration, and the
cost of any such item of work shall be payable to Landlord in full within thirty
(30) days after receipt of invoice therefore.
1. Openings in rated demising partitions and exterior wall, provided such
opening/penetrations have been approved in advance by Landlord in writing.
2. Roof Openings. With Landlord's prior written permission, roof openings
for any purpose shall include supporting structures, curbs, roof patching and
flashing. Tenant shall be responsible for installation of ducts, pipes,
equipment and counter flashing. Landlord reserves the right to refuse to permit
the furnishing of any openings which exceed the capability of the structural
system or which in Landlord's opinion would have an appearance detrimental to
Landlord's Building.
3. Plumbing Service. With Landlord's written permission, additional
sanitary sewer or relocation of sanitary sewer.
4. Electric Service. With Landlord's written permission, additional
electric service or relocation of electrical service.
5. Storefront. With Landlord's prior written permission, changes to
Landlord furnished interior and exterior storefront including but not limited to
additional doors and relocation of doors.
6. Landlord's Labor (including overtime, demurrage and waiting time) and
equipment used in any work Landlord performs for Tenant.
7. Architectural and/or Engineering fees incurred Landlord as a result of
Tenant requesting any services in excess of the standard review services
described in Section C.5.
8. Building Department Expeditor Fees incurred by Landlord in expediting
Tenant Building Permit, Controlled Inspection and other requirements for
temporary and permanent Certificates of Occupancy on the building and the Leased
Premises.
9. Building Permits, Microfilming and Documentation Fees paid by Landlord
on behalf of the Tenant in expediting the approval of Building Permits and other
approvals of Agencies having jurisdiction.
E. CERTIFICATE OF ACCEPTANCE
Upon the completion of Tenant's construction and fixturing work within the
Leased Premises, Tenant shall so notify Landlord in writing. Landlord, upon
receipt of such notice from Tenant, shall issue a Certificate of Acceptance of
said premises provided, however, that the issuing of such a Certificate shall be
contingent upon all of the following:
1. The satisfactory completion by Tenant of the work to be performed by
Tenant under this Exhibit D, in accordance with good workmanship and the
approved Store Working Drawings and Specifications therefore.
2. Receipt by Landlord from Landlord's Architect of a premises acceptance
letter. This letter can be issued only upon Tenant's correction of the
deficiencies noted by Landlord or Landlord's Architect upon any inspection of
the Leased Premises.
3. Tenant shall have furnished Landlord with waivers of liens and sworn
statements, or satisfactory substitutes for same, in such form as may be
required by Landlord, from all contractors, subcontractors and other persons
performing labor and/or supplying materials in connection with such work showing
that all of said persons have been compensated in full.
4.
5. Submission by Tenant to Landlord of the warranties for the benefit of
Landlord on the workmanship, materials, and equipment incorporated into the
Leased Premises as required in Section 3.B.11 of this Exhibit.
================================================================================
SPECIALTY TENANT LEASE EXHIBIT
================================================================================
EXHIBIT E
SIGN CRITERIA
1. Tenant is required to identify the Leased Premises by signage on the
storefront. The general criteria for the design of Tenant' signage ("sign
criteria") is set forth below. More specific sign criteria for The Project as a
whole and certain tenants in certain designated locations such as in food courts
and mall courts is set forth in the Tenant Handbook, (Tenant Design Criteria)
hereinafter referred to as "Tenant Handbook".
2. Costs incurred in design, construction and installation, as well as
maintenance shall be the responsibility of Tenant. The Tenant must obtain
permits to erect and connect the sign from local community officials before the
sign is installed.
3. It is intended that the signage be developed in an imaginative and
varied manner so as to enhance the architectural treatment of the facade in
general and be harmonious with the overall architecture and thematic
consideration of The Project in particular. Although current signage practices
of the Tenant shall be considered, they will not govern the signs to be
installed.
4. Approval of signs shall be solely the right of the Landlord, and Tenant
must submit all design for signage to the Landlord for approval in the form of
working drawings before manufacturing or further assembly begins. Submission
shall be to Landlord, in the form of shop drawings with all pertinent details
necessary for construction and installation included. Submission shall be a
minimum of ninety (90) days before proposed installation date, and tenant is
expected to have sign manufactured and ready for installation within forty-five
(45) days of approval by Landlord or Landlord's agent before installation, at
project site. Landlord reserves the right to reject signs not conforming to
approved drawings regardless of stage of completion or installation.
5. Each tenant is required to have two (2) storefront signs. The Tenant's
storefront sign shall occupy an area of the storefront facade designated in the
Tenant Handbook and/or the Lease Outline Drawing, and/or by the Project
Architect. The area shall total no more than eight (8) square feet for each
sign. The design of the storefront is to be considered by Tenant in the
development of signage. In general, signs will be installed in the designated
sign area above the entry door. Variation of this criteria shall be subject to
Landlord's prior written approval, which shall be solely at the discretion of
Landlord. No sign shall be installed closer than three feet (3'-0") from the end
of the Leased Premises storefront on both sides.
6. Signage shall be limited to the name of the store. Additional elements
will be considered as long as they enlarge, expand, or otherwise clarify the
name of the store.
7. Signs which are comprised of unaltered sans serif typefaces are, in
general, unacceptable, as are signs or type faces which are difficult to read.
8. The use of corporate identifications or logos will be considered, but
prior use or identification with a particular sign or logo will not govern
Landlord's approval for Tenant use. Tenant agrees that Landlord's rejection of
particular logo or sign shall not constitute a violation of Lease by Landlord.
In the case of conflict between the sign criteria and other provisions of the
Lease, Tenant agrees that the sign criteria and Landlord's discretion shall
prevail. Tenant shall not hold Landlord liable for damage or injury as a result
of the sign criteria or the implementation of the sign criteria by agreement of
both parties.
9. A variety of fabrication materials shall be considered, however
construction shall be guaranteed for outdoor use for a period of at least five
(5) years against peeling, cracking, crazing, blistering, or any other
degradation of surface or materials. Tenant shall obtain, from manufacturer of
the sign, a five (5) year warranty covering the condition of finished surfaces,
construction and operation of sign.
10. All electrical signs shall carry approval of Underwriters Laboratories
(U.L.) on all component parts and on the complete display. Maximum brightness of
lit signs shall be fifty(50) foot Lamberts measured one foot (1') from the
source of light. No blinking, moving or flashing lights shall be allowed.
Surface lighting may be reduced in order to accentuate lit signage. There will
be no special advantage in terms of visibility of internally lit over externally
lit signs.
11. No exposed raceways, ballast boxes or electrical transformers will be
permitted except as required to be exposed by local building codes.
12. Landlord shall not be responsible for signs improperly installed or
manufactured, and those signs not meeting code requirements shall, at Tenant's
expense, be removed and built to code specifications before reinstallation.
Signs meeting Landlord's sign criteria, but not meeting local code requirements,
shall be the responsibility of Tenant, and Tenant agrees not to hold Landlord
liable for costs due to conflict between these sign criteria and code, should
such conflict exist under present code or due to future changes in code.
13. Notwithstanding anything herein contained to the contrary, Tenant shall
have the right to replace any existing sign(s) of said Tenant as long as such
replacement meets the sign criteria listed within this document, the Tenant
Handbook, and is accompanied by Landlord's prior written approval prior to
installation.
14. No other signs of any type or purpose, permanent or temporary, shall be
permitted to be displayed upon the facade, windows or within the dimension
prescribed in Section 4.03 of the Lease, behind an unobstructed window unless
and until such sign has been submitted to Landlord and has received Landlord's
prior written approval. Landlord shall be the sole judge of what constitutes an
unobstructed window. Removal of signage of any type installed without Landlord
approval shall be mandatory before said sign shall be considered by Landlord for
installation.
15. Landlord shall not be required to approve signage for any reason other
than conformance with the sign criteria in this Exhibit E and the Tenant
Handbook. Scheduled opening dates and other time constraints shall not be reason
to approve signage which Landlord otherwise would consider unsuitable for
manufacture or installation. Tenant agrees not to hold Landlord liable for any
damage caused to Tenant due to signage or lack of signage as a result of
Landlord's insistence upon conformance with the sign criteria or the Landlord's
withholding of approval of submitted signage.
16. In the event that Tenant is unable to supply satisfactory signage
design by the fixturing period of Tenant's store, Landlord shall have the option
of providing such design. In such a case, Tenant agrees to pay prior to store
opening all expenses involved in the design, manufacture, and installation of
said signage plus 15% cost of administration, and Tenant agrees to waive rights
to reject said signage and agrees not to oppose installation of said signage.
17. Signage indicated on drawings and mechanicals submitted for reasons
other than signage evaluation (as described in this Exhibit E and the Tenant
Handbook) shall not constitute a signage submittal. No approval of such drawings
and mechanicals shall constitute approval of signage.
18. Food Court Tenants shall be permitted to install one menu board within
the Leased Premises subject to Landlord's prior design review and written
approval. Refer to the Tenant Handbook for type, size and location allowed.
19. Procedure for Submittal and Approval of Sign Drawings:
a. Approval of store design drawings or working drawings and
specifications for Tenant's Leased Premises does not constitute
approval of any sign work. Approval of signs shall be solely the right
of Landlord, and Tenant must submit all candidates for signage to the
Landlord for approval in the form of sign designer's working drawings
and/or manufacturer's shop drawings before manufacturing or assembly
begins. Drawings by Tenant, its architect or anyone not qualified to
produce signage drawings are not acceptable. At the same time as
Tenant's initial submission of store working drawings and
specifications to Landlord, Tenant shall submit one (1) set of
reproducible prints and specifications and three (3) sets of blue
prints, along with samples of all material and colors, for all its
proposed sign work. The drawings shall clearly show location of sign
on storefront elevation drawing, size and stroke dimensions, graphics,
color, construction, and attachment details. Full information
regarding electrical load requirements and brightness in footcandles
shall also be included. Landlord reserves the right to reject signs
not conforming to approved drawings regardless of state of completion
or installation.
b. As soon as practical after receipt of the sign drawings,
Landlord shall return to Tenant one (1) set of such sign drawings with
the suggested modifications and/or approval. If, upon receipt of
approved sign drawings bearing Landlord's comments, Tenant wishes to
take exception thereto, Tenant may do so in writing, by certified or
registered mail addressed to Landlord within seven (7) days from the
date of Tenant's receipt of such sign drawings. Unless such action is
taken, it will be deemed that all comments made by Landlord on the
sign drawings are acceptable to and approved by Tenant.
c. If sign drawings and specifications are returned to Tenant
with comments, but not bearing approval of Landlord; said drawings and
specifications shall be revised immediately by Tenant and resubmitted
to Landlord for approval within seven (7) days of their receipt by
Tenant.
EXHIBIT H-1
PRE-CONSTRUCTION TENANT ESTOPPEL CERTIFICATE