Virginia-Richmond-Regency Square Shopping Center Lease - Federal Street Joint Venture and Pizzeria Regina of Virginia Inc.
DEED OF LEASE
REGENCY SQUARE
RICHMOND, VIRGINIA
TENANT'S TRADE NAME: PIZZERIA REGINA
TABLE OF CONTENTS
Basic Lease Provisions............................................ 1
Demised Premises......................................... 1
Shopping Center.......................................... 1
Integrated Shopping Center............................... 1
Common Areas............................................. 1
Lease Term............................................... 1
Lease Year............................................... 1
Guaranteed Minimum Rent.................................. 1
Percentage Rent.......................................... 2
Use Permitted............................................ 2
Trade Name............................................... 2
Marketing Fund and Advertising Fund Fees................. 2
Common Area Maintenance.................................. 2
Property Taxes and Insurance............................. 2
Electrical Consumption Charge............................ 2
Security Deposit......................................... 2
Tenant's Mailing Address................................. 2
Landlord's Mailing Address For Notices................... 3
Landlord's Mailing Address for Places to Pay Rent........ 3
Major Stores............................................. 3
Floor Area............................................... 3
Gross Leased Area........................................ 3
Exhibits................................................. 3
Rent Commencement Date................................... 3
Demised Premises.................................................. 4
Term ............................................................ 4
Rent ............................................................. 4
Guaranteed Minimum Rent.................................. 4
Taxes and Insurance Expense.............................. 5
Percentage Rent.......................................... 6
Additional Rent.......................................... 7
Interest and Late Charges................................ 8
Payment of Rent.......................................... 8
Option to Terminate...................................... 8
Survival................................................. 8
Improvements and Delivery of Demised Premises..................... 8
Use of the Premises............................................... 9
Continuous Occupancy..................................... 9
Failure to Comply........................................ 10
Radius Restriction....................................... 10
Rules and Regulations.................................... 10
Installation of Signs, Awnings, Canopies, Fixture
and Alterations by Tenant.............................. 13
Hazardous Materials...................................... 13
Landlord's Covenant to Maintain................................... 15
Tenant's Covenant to Maintain..................................... 15
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Common Areas...................................................... 16
Control of Common Areas.................................. 16
Tenant's Share of Common Area Costs...................... 16
Security................................................. 18
Utilities......................................................... 19
Laws and Insurance Standards...................................... 19
Indemnification of Landlord and Tenant and Liability Insurance.... 20
Property Insurance, Damage and Destruction........................ 21
Ownership of Certain Property and Surrender of Premises........... 23
Landlord's Entry, Easement for Pipes and Excavation............... 23
Default .......................................................... 23
Bankruptcy........................................................ 25
Remedies Cumulative - Nonwaiver................................... 25
Eminent Domain.................................................... 26
Financial Information; Statement of Tenant; Amendment of Lease.... 26
Assignment, Subletting and Hypothecation of Lease................. 26
Promotion of the Shopping Center.................................. 28
Notices .......................................................... 29
Holding Over...................................................... 29
Subordination..................................................... 29
Transfer of Landlord's Interest................................... 30
Warranty ........................................................ 30
Short Form Lease.................................................. 30
Estoppel Certificate.............................................. 30
Mechanics' Liens.................................................. 31
Force Majeure..................................................... 31
Limitation of Liability........................................... 31
Real Estate Brokers............................................... 31
Accord and Satisfaction........................................... 31
Nature and Extent of Agreement.................................... 32
Binding Effect.................................................... 32
ERISA Representation.............................................. 32
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Waiver of Jury Trial.............................................. 32
Attorney's Fees................................................... 32
Captions.......................................................... 32
Examination of Lease.............................................. 33
Survival ......................................................... 33
Relocation and Redevelopment of Shopping Center................... 33
Food Park Tenant.................................................. 33
Security Deposit.................................................. 34
Surety Agreement.................................................. 34
FOOD PARK ADDENDUM................................................ 36
EXHIBIT A - SITE PLAN............................................. 39
EXHIBIT B - BUILDING PLAN......................................... 40
EXHIBIT C - SHOPPING CENTER DESCRIPTION.......................... 41
EXHIBIT D - DESCRIPTION OF INTEGRATED SHOPPING CENTER............. 42
EXHIBIT E - Intentionally deleted................................. 43
EXHIBIT F - ENERGY SERVICE AND ENERGY CHARGES..................... 44
EXHIBIT G - MEMORANDUM OF LEASE................................... 54
EXHIBIT H - ESTOPPEL CERTIFICATE.................................. 55
SURETY AGREEMENT.................................................. 57
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DEED OF LEASE
THIS DEED OF LEASE, made as of the 7th day of July, 1997, by
and between ONE FEDERAL STREET JOINT VENTURE, a Massachusetts Joint Venture,
hereinafter called "Landlord", and PIZZERIA REGINA OF VIRGINIA, INC., a Virginia
corporation, hereinafter called "Tenant";
WITNESSETH:
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The parties hereto agree for themselves, their successors and assigns, as
follows:
1. Basic Lease Provisions
The following terms, whenever used in this Lease with the first letter of
each word capitalized, shall have only the meanings set forth in this paragraph,
unless such meanings are expressly modified, limited or expanded elsewhere
herein:
(a) Demised Premises: Space crosshatched on Exhibit B with a total
Floor Area of 605 square feet for the purposes of this Lease. {Paragraph 2}
(b) Shopping Center: That land owned by Landlord located in Richmond,
Henrico County, Virginia, together with the improvements constructed
thereon, on which the Demised Premises are located, which is outlined in
green on Exhibit A and described on Exhibit C, and known as Regency Square
Shopping Center. In the event Landlord redevelops the Shopping Center in
accordance with Paragraph 9(a) and such redevelopment results in the
addition of land and/or improvements, then the Shopping Center shall be
deemed to include such additional land and/or improvements.
(c) Integrated Shopping Center: That land including the Shopping
Center and certain additional parcels of land which have been developed by
Major Stores, as described on Exhibit D and shown on Exhibit A. In the
event Landlord redevelops the Integrated Shopping Center in accordance with
Paragraph 9(a) and such redevelopment results in the addition of land
and/or improvements, then the Integrated Shopping Center shall be deemed to
include such additional land and/or improvements.
(d) Common Areas: All areas, space and facilities furnished in the
Shopping Center and designated for the general use, in common, of occupants
of the Shopping Center, including Tenant, its officers, agents, employees,
invitees and customers, including, but not limited to, parking areas,
streets, sidewalks, roofs, canopies, signs, roadways, loading platforms,
washrooms, shelters, ramps, landscaped areas, pedestrian malls (enclosed or
open), courts, stairs and other similar facilities. {Paragraph 9(a)}
(e) Lease Term: Eighty-four (84) full calendar months, plus the period
from delivery of possession of the Demised Premises until the Rent
Commencement Date as defined in Paragraph 1(w), provided, however, if the
Rent Commencement Date is on a date other than the first (1st) day of a
month then the first full month shall be the period commencing on the Rent
Commencement Date and ending on the last day of the month immediately
following the Rent Commencement Date. {Paragraph 3}
(f) Lease Year: The first Lease Year shall be the period commencing on
the Rent Commencement Date and ending on the first December 31 thereafter.
Each subsequent Lease Year shall be a calendar year, except that if the
Rent Commencement Date is on a day other than January 1, the final Lease
Year shall be for less than a calendar year and shall commence on January 1
and end on the date which is 84 full calendar months following the Rent
Commencement Date, provided, however, if the Rent Commencement Date was on
a date other than the first (1st) day of a month then the last day of the
Lease Term shall be extended to the last day of such month.
(g) Guaranteed Minimum Rent:
(i) $90,000.00 per annum, payable in equal monthly installments
of $7,500.00 (which amounts are based on $152.54 per square foot of
Floor Area of the Demised Premises) during the period beginning on the
Rent Commencement Date and ending on the date which is 24 full months
thereafter, provided, however, if the Rent
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Commencement Date is on a date other than the first (1st) day of a
month then the first full month shall be the period commencing on the
Rent Commencement Date and ending on the last day of the month
immediately following the Rent Commencement Date.
(ii) $100,000.00 per annum, payable in equal monthly installments
of $8,333.33 (which amounts are based on $169.49 per square foot of
Floor Area of the Demised Premises) during each of the 25th through
the 60th full calendar months of the Lease Term;
(iii) $110,000.00 per annum, payable in equal monthly
installments of $9,166.67 (which amounts are based on $186.44 per
square foot of Floor Area of the Demised Premises) during each of the
61st through the 84th full calendar months of the Lease Term.
{Paragraph 4(a)}
(h) Percentage Rent:
(i) 8% of Gross Sales in excess of a "Percentage Rent Base" of
$1,125,000.00 in each Lease Year during the period beginning on the
Rent Commencement Date and ending on the date which is 24 full months
thereafter, provided, however, if the Rent Commencement Date is on a
date other than the first (1st) day of a month then the first full
month shall be the period commencing on the Rent Commencement Date and
ending on the last day of the month immediately following the Rent
Commencement Date.
(ii) 8% of Gross Sales in excess of a "Percentage Rent Base" of
$1,250,000.00 in each Lease Year during the 25th through the 60th full
calendar months of the Lease Term.
(iii) 8% of Gross Sales in excess of a "Percentage Rent Base" of
$1,375,000.00 in each Lease Year during the 61st through the 84th full
calendar months of the Lease Term. {Paragraph 4(c)}
(i) Use Permitted: Tenant shall use the Demised Premises only for the
retail sale of pizza, pasta, other Italian food, stuffed pizza, calzones,
soft drinks, milk and other associated beverages and other items sold in
Pizzeria Regina restaurants, but excluding beer, wine and other alcoholic
beverages. {Paragraph 6}
(j) Trade Name: PIZZERIA REGINA. {Paragraph 6(a)}
(k) Marketing Fund and Advertising Fund Fees:
(i) Marketing Fund: One Thousand and no/100 Dollars ($1,000.00)
per annum, including the first calendar year, adjusted annually at the
end of each calendar year as provided in Paragraph 22(a).
(ii) Advertising Fund: Three Thousand Five Hundred and no/100
Dollars ($3,500.00) per annum, including the first calendar year,
adjusted annually at the end of each calendar year as provided in
Paragraph 22(b). {Paragraph 22}
(l) Common Area Maintenance: Tenant pays its pro rata share.
{Paragraph 9(b)}
(m) Property Taxes: Tenant pays its pro rata share. {Paragraph 4(b)}
(n) Electrical Consumption Charge: Tenant pays as provided in Exhibit
F, Section 5.
(p) Tenant's Mailing Address:
(i) For Notices: 999 Broadway, Suite 400, Saugus, MA 01906 {see
also Paragraph 21(d)}, and
(ii) For Invoices: 999 Broadway, Suite 400, Saugus, MA 01906.
{Paragraph 23}
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(q) Landlord's Mailing Address For Notices: One Federal Street Joint
Venture, c/o The Prudential Realty Group, 8 Campus Drive, Arbor Circle
South, Parsippany, NJ 07054 Attention: Vice President, Retail, and with a
copy to Faison & Associates, Inc., 1900 Interstate Tower, 121 West Trade
Street, Charlotte, North Carolina 28202-5399, Attn: Retail Leasing.
{Paragraph 23}
(r) Landlord's Mailing Address for Places to Pay Rent:
(i) Place to Pay Rent {except rent set out below}: One Federal
Street Joint Venture, c/o Faison & Associates, Inc., P.O. Box 70160,
Richmond, Virginia 23255-0160.
(ii) Place to Pay Marketing Fund and Advertising Fund Fees:
Regency Square Marketing/Advertising Fund, 1420 Parham Road, Richmond,
Virginia 23229. {Paragraph 4(f)}
(s) Major Stores: Stores within the Integrated Shopping Center which
occupy at least thirty thousand (30,000) square feet of Floor Area.
(t) Floor Area: The number of square feet of floor space within the
Demised Premises or other buildings or spaces in the Shopping Center, as
the case may be. All Floor Areas shall be calculated by using dimensions
from the centerline of the interior or party walls and from the exterior
faces of exterior walls.
(u) Gross Leased Area: The number of square feet of Floor Area of all
leased areas of the Shopping Center rented to tenants whose leases or
occupancy requirements have commenced, but excluding the Floor Area of the
Major Stores and the Floor Area of tenants whose spaces do not front on the
enclosed mall. In no event shall the Gross Leased Area be less than 75% of
the Gross Leasable Area; provided, however, that in the event of an
expansion of the Shopping Center, then the Gross Leasable Area of the
expanded area shall not be included in the above percentage until such time
as 75% of the Gross Leasable Area of the expanded area is rented to tenants
whose leases or occupancy requirements have commenced. For the purposes
herein "Gross Leasable Area" shall mean the Floor Area of all enclosed
areas of the Shopping Center which are available for the exclusive use and
occupancy by tenants of the Shopping Center, whether or not open for
business, but excluding the Floor Area of the Major Stores and the Floor
Area of tenants whose spaces do not front on the enclosed mall. Changes in
the Gross Leased Area occurring during any calendar month shall be
effective on the first (1st) day of the next succeeding calendar month. The
Gross Leased Area in effect for the whole of any calendar year shall be the
average of the Gross Leased Area in effect on the first (1st) day of each
calendar month in such calendar year.
(v) Exhibits: The following exhibits are attached to this Lease and
are hereby incorporated in and made a part of this Lease.
(i) Exhibit A - Site Plan.
(ii) Exhibit B - Building Plan (Showing the Demised Premises
outlined in red).
(iii) Exhibit C - Description of Shopping Center.
(iv) Exhibit D - Description of Integrated Shopping Center.
(v) Exhibit E - Intentionally deleted.
(vi) Exhibit F - Energy Service and Energy Charges.
(vii) Exhibit G - Short Form Lease.
(viii) Exhibit H - Estoppel Certificate.
(w) Rent Commencement Date: the earlier of: (i) ninety (90) days after
the date Landlord delivers the Demised Premises to Tenant, or (ii) the date
on which Tenant first opens for business within the Demised Premises.
References in this Paragraph 1 to other paragraphs are for convenience and
designate one of the other paragraphs where reference to the particular Basic
Lease Provision appears. Each reference in this Lease to any of the Basic Lease
Provisions contained in this Paragraph 1 shall be construed to incorporate all
of the terms provided by such Basic Lease Provisions. In the
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event of any conflict between the Basic Lease Provisions and the balance of this
Lease, including any exhibits, riders, addenda or amendments, then the balance
of this Lease shall control.
2. Demised Premises
Landlord hereby leases to Tenant, and Tenant hereby accepts and rents from
Landlord, at the rent, and upon the terms and conditions hereinafter set forth,
the interior of the Demised Premises as described in Paragraph 1(a), together
with the nonexclusive right to use all Common Areas {as defined in Paragraph
1(d)} located from time to time in the Shopping Center. Nothing contained in
this Lease shall be construed as a grant, rental or conveyance of: (i) any
rights in the roof or exterior of the building of which the Demised Premises
constitute a part; (ii) the air space (occupied or not) above a horizontal plane
coterminous with the bottom edge of the structural steel framework supporting
the roof of the Demised Premises; (iii) the Common Areas (except as expressly
provided in this Lease); (iv) the air space (occupied or not) below a horizontal
plane coterminous with the finished floor level of the Demised Premises; or (v)
the land upon which the Demised Premises are located.
Landlord and Tenant agree that either party may elect to redetermine the
number of square feet of the Floor Area of the Demised Premises. In the event
that any such remeasurement determines there is a deviation between the actual
number of square feet of Floor Area in the Demised Premises and the number of
square feet set forth in Paragraph 1(a) of the Lease by five percent (5%) or
more, and the determination is certified by an architect approved by Landlord,
this Lease shall be amended to reflect the actual number of square feet of Floor
Area and to adjust proportionately Guaranteed Minimum Rent, Percentage Rent and
additional rent. If the deviation is less than five percent (5%), then Landlord
may, at Landlord's sole option, elect to either adjust proportionately
Guaranteed Minimum Rent, Percentage Rent and additional rent, or to leave the
charges and the Floor Area of the Demised Premises as they are set out in the
Lease. Any underpayment of rent disclosed by such adjustment shall be promptly
paid by Tenant. Any overpayment of rent disclosed by such adjustment shall be
promptly refunded.
3. Term
The Lease Term shall begin on the date of delivery of the Demised Premises
by Landlord to Tenant, as provided in Paragraph 5, and shall end at midnight on
the last day of the 84th calendar month after the Rent Commencement Date,
provided, however, if the Rent Commencement Date is on a date other than the
first (1st) day of a month then the first full month shall be the period
commencing on the Rent Commencement Date and ending on the last day of the month
immediately following the Rent Commencement Date.
4. Rent
Tenant shall pay to Landlord for the use and occupancy of the Demised
Premises and appurtenances thereto rent as hereinafter provided:
(a) Guaranteed Minimum Rent.
(i) Guaranteed Minimum Rent at the rate per annum specified in
Paragraph 1(g), payable in equal monthly installments as specified in
Paragraph 1(g) in advance, without notice, demand, setoff or
deduction, on or before the first day of each and every calendar month
beginning on the Rent Commencement Date and continuing throughout the
Lease Term. Changes in the Floor Area of the Demised Premises shall
result in corresponding changes in the Guaranteed Minimum Rent and
Percentage Rent Base. Should the Rent Commencement Date be on a day
other than the first day of a month, then the rent for the first
fractional month shall be computed on a daily basis {based on a thirty
(30) day month} and shall be paid on the Rent Commencement Date.
Should the Lease Term expire on a day other than the last day of a
month, then the rent for the final fractional month shall be computed
on a daily basis {based on a thirty (30) day month}.
(ii) If at any time during the Lease Term, the Shopping Center
shall be expanded and as a result of such expansion, a new Major Store
over 100,000 square feet opens, then beginning on the date that the
new Major Store opens for business, Guaranteed Minimum Rent and the
Percentage Rent Base shall be increased as follows:
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The annual Guaranteed Minimum Rent that is then payable by Tenant in
the Lease Year in which the Major Store opens , shall be multiplied by one
hundred five percent (105%) and such product shall be the new annual
Guaranteed Minimum Rent. In the event this Lease has increases in
Guaranteed Minimum Rent, then such amounts shall be proportionately
increased. Such new Guaranteed Minimum Rent shall be payable in equal
monthly installments.
The new Percentage Rent Base shall be the product obtained by dividing
the new annual Guaranteed Minimum Rent by the percentage set forth in
Paragraph 1(h).
(iii) If at any time during the Lease Term, the Shopping Center
shall be expanded and as a result of such expansion, a new Major Store
operating under the name of Nordstrom ("Nordstrom") opens, then
beginning on the date that Nordstrom opens for business, Guaranteed
Minimum Rent and the Percentage Rent Base shall be increased as
follows:
The annual Guaranteed Minimum Rent that is then payable by Tenant in
the Lease Year in which Nordstrom opens, shall be multiplied by one hundred
ten percent (110%) and such product shall be the new annual Guaranteed
Minimum Rent. In the event this Lease has increases in Guaranteed Minimum
Rent, then such amounts shall be proportionately increased. Such new
Guaranteed Minimum Rent shall be payable in equal monthly installments.
The new Percentage Rent Base shall be the product obtained by dividing
the new annual Guaranteed Minimum Rent by the percentage set forth in
Paragraph 1(h).
(b) Taxes and Insurance Expense. Commencing on the Rent Commencement
Date, and for the balance of the Lease Term, Tenant agrees to pay Landlord,
as additional rent for each Lease Year, a pro rata share of each of the
following expenses, which pro rata share shall be computed by multiplying
such expenses by a fraction having as its numerator the Floor Area of the
Demised Premises and as its denominator the Gross Leased Area:
(i) All taxes, impositions and assessments of every kind or
nature which are now or may hereafter be imposed or assessed upon the
Demised Premises or the Shopping Center, less any amounts paid by
Major Stores and tenants whose spaces do not front on the enclosed
mall towards such taxes and assessments.
(ii) All taxes, impositions or excises on rent or any other tax,
levy or charge however described (but excluding any federal, state or
local income taxes) levied against Landlord by the Federal Government,
the Commonwealth of Virginia or any agency or political subdivision of
the Commonwealth of Virginia, including without limitation, any
license fees, taxes measured by or imposed upon rents or other tax or
charge upon Landlord and/or the business for leasing the Shopping
Center, on account of rentals or other charges payable to Landlord
under leases of space in the Shopping Center (including this Lease),
or based upon the parking facilities and/or the number of parking
spaces provided by Landlord in the Shopping Center, less any amounts
paid by Major Stores and tenants whose spaces do not front on the
enclosed mall towards such taxes and excises.
(iii) The cost to Landlord of insurance obtained by Landlord
pursuant to Paragraphs 12 and 13, less any amounts paid by Major
Stores and tenants whose spaces do not front on the enclosed mall
towards such cost.
(iv) The cost to Landlord for professional tax consulting
services, advise and review, and the costs and charges, including
reasonable attorneys', accountants', appraisers' and consultants' fees
and expenses and other fees in any tax appeal, protest, review or any
other administrative or judicial proceeding seeking to reduce the
level of costs outlined in Paragraphs 4(b)(i) and 4(b)(ii) levied upon
the Shopping Center, and expenses and contributions actually incurred
for lobbying purposes at the federal, state or local level seeking to
reduce, repeal, lessen the increase of or defeat the additional
imposition of real estate taxes, privilege (sales) or use taxes, rent
taxes, leasehold taxes, occupation taxes, excise taxes or like taxes
affecting, among others, Tenant or the Demised Premises, and expenses
and contributions to
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propose, approve or oppose such tax measures in legislation or a
referendum, initiative or constitutional amendment.
Landlord shall bill Tenant for such costs as a separate charge in
advance on the first day of each calendar month in an amount as
estimated by Landlord. Such estimate shall be based on Landlord's
projected costs for taxes and insurance for that calendar year. The
costs for Landlord's insurance may, at Landlord's sole discretion be
included in Landlord's cost for Common Areas as set forth in Paragraph
9(b). After the end of each calendar year, Landlord will furnish to
Tenant a statement showing in reasonable detail the amount of
Landlord's costs for such taxes and insurance for the preceding
calendar year, any deficit will be paid by Tenant within thirty (30)
days after demand from Landlord. Any surplus will be applied against
Guaranteed Minimum Rent thereafter coming due. The annual and monthly
payments for the ensuing calendar year shall be estimated accordingly.
Changes in applicable Floor Areas shall result in corresponding pro
rata adjustments. Such additional rent for any partial Lease Year, or
for any Lease Year longer or shorter than twelve (12) calendar months,
shall be prorated per diem. Tenant shall be entitled to a credit for
its proportionate share of any refund or reduction in real property
taxes, provided Tenant paid Landlord its proportionate share of the
taxes for the year being refunded or reduced.
(c) Percentage Rent. Tenant shall also pay to Landlord,
without notice, demand, setoff or deduction, a sum equal to the
percentage of Gross Sales {which percentage is set forth in Paragraph
1(h)} of Tenant or anyone else made from, in or upon the Demised
Premises during each Lease Year in excess of the Percentage Rent Base
set forth in Paragraph 1(h). In the event the Guaranteed Minimum Rent
payable in any Lease Year is less than the annual Guaranteed Minimum
Rent set forth in Paragraph 1(g), or if the Guaranteed Minimum Rent is
payable for a period of less than twelve (12) months, then the
Percentage Rent Base for that Lease Year or period shall be reduced in
proportion to the amount by which the Guaranteed Minimum Rent payable
is less than the annual Guaranteed Minimum Rent set forth in Paragraph
1(g).
Percentage Rent shall be computed and paid in accordance with the
following provisions:
(i) Statements and Payment of Percentage Rent. Within fifteen
(15) days after the end of each calendar month during the Lease Term,
Tenant shall submit to Landlord an accurate written statement signed
by Tenant or a duly authorized officer or representative of Tenant,
showing by month the full amount of Gross Sales of Tenant during the
immediately preceding month. Within fifteen (15) days after the end of
the calendar year quarters terminating on the last day of March, June
and September during the Lease Term, Tenant shall pay as Percentage
Rent that amount derived by multiplying the percentage set forth in
Paragraph 1(h) hereof by the amount by which the Gross Sales for that
quarter exceeds twenty-five percent (25%) of the Percentage Rent Base.
Within fifteen (15) days after the end of each Lease Year, Tenant
shall furnish to Landlord a statement certified as correct and
complete by Tenant (or an authorized officer or representative of
Tenant) and by a certified public accountant showing in complete
detail the Gross Sales made during the immediately preceding Lease
Year or part thereof, including an itemization of all claimed
exclusions therefrom and Tenant shall at the same time pay the full
balance of Percentage Rent due for that Lease Year. Any excess of
Percentage Rent that Tenant may have paid for that Lease Year shall be
applied against Guaranteed Minimum Rent thereafter falling due. If
requested by Landlord, in addition to the Gross Sales reports required
to be furnished to Landlord as set forth above, Tenant shall furnish
to Landlord copies of any and all sales tax reports due any federal,
or local governmental agency at the same time it furnishes such
reports to such agencies, but in no event less than one (1) time per
calendar year. If requested by Landlord, Tenant shall require any
licensees, concessionaires and subtenants that may be occupying the
Demised Premises to furnish similar statements to those statements
required to be furnished by Tenant to Landlord under this Paragraph
4(c)(i). All reports shall be delivered to Landlord at the address
specified in Paragraph 1(r)(i).
Each Lease Year shall be considered as an independent accounting
period for the purpose of computing the amount of Percentage Rent.
There shall be no carry-backs or carry-forwards from one (1) Lease
Year to another Lease Year, however the foregoing sentence does not
preclude the annual adjustments based on actual
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Gross Sales. If the first Lease Year is longer than twelve (12)
full calendar months, then Tenant shall pay Percentage Rent for two
(2) different periods for and during the first Lease Year as follows:
Tenant shall pay a separate Percentage Rent for that portion of the
first Lease Year beginning on the Rent Commencement Date and ending on
December 31 of that same year; and Tenant shall pay a separate
Percentage Rent covering the remaining period of twelve (12) full
calendar months of the first Lease Year. If last Lease Year is longer
than twelve (12) full calendar months, then Tenant shall pay
Percentage Rent for two different periods for and during the last
Lease Year as follows: Tenant shall pay a separate Percentage Rent for
that portion of the first Lease Year beginning on the first day of
such Lease Year and ending twelve (12) full calendar months
thereafter; and Tenant pay a separate Percentage Rent covering the
remaining period of the last Lease Year. Such amounts shall be paid
quarterly as provided in the preceding paragraph. Tenant's reports of
Gross Sales shall cover these periods separately.
(ii) Definition of "Gross Sales". As used in this Lease, the term
"Gross Sales" means all sales, both cash and charge, of merchandise
and services made in, upon or from the Demised Premises, including
telephone sales and orders taken in or from the Demised Premises
although such orders may be filled elsewhere, less refunds and
allowances to the customer. Gross Sales shall not include the
following: (a) any sales, use or excise tax upon such merchandise or
services if such taxes are separately stated and separately charged to
the customer; (b) transfers of merchandise between Tenant's locations
as long as the transfers are made for the convenient operation of
Tenant's business and are not made for the purpose of consummating a
sale made in, at or from the Demised Premises; (c) sales to employees
at a discount not to exceed 2% of Gross Sales per Lease Year; (d)
returns of merchandise to shippers, suppliers or manufacturers; (e)
the sale or transfer of Tenant's trade fixtures or bulk transfer of
inventory and/or other personal property not constituting stock in
trade for sale to the general public; (f) the selling price of
merchandise returned without exchange and refunds or credits allowed
on returns of merchandise or customer complaints to the extent
previously included in Gross Sales; (g) bad debts not to exceed 1% of
Gross Sales in any Lease Year, however if such amounts are collected
in a later Lease Year then the amounts collected will be included in
Gross Sales in the Lease Year in which they are collected; or (h)
service charges paid by Tenant to third party credit card or charge
card companies on sales paid by customers on credit card or charge
card. A sale upon installment or credit shall be treated as a sale for
the full price in the month during which such sale is made, regardless
of when or whether Tenant shall receive payment therefor.
(iii) Records and Audit. Tenant shall keep at the Demised
Premises or at its general office complete and accurate books of
account and records in accordance with generally accepted accounting
practices with respect to all business conducted in, upon or from the
Demised Premises; and Landlord shall have the right at any reasonable
time to examine such books and records (including all tax returns) or
have them audited at Landlord's expense, except that if any such
examination or audit discloses a misstatement of more than two percent
(2%) in any annual statement of Gross Sales furnished by Tenant to
Landlord, then Tenant shall pay the actual cost of such examination or
audit. If any examination or audit by Landlord shall disclose any
deficiency in any payment of Percentage Rent, then Tenant shall pay
the deficiency within fifteen (15) days after notice of such
deficiency, with interest at the rate provided in Paragraph 4(e) from
the date on which such payment should have been made. If any audit or
audits show that the amount of Gross Sales on any two (2) annual
statements were misstated by more than five percent (5%) of Gross
Sales for any two (2) Lease Years, Landlord shall have the right, but
not the obligation, to terminate the Lease and all of the rights,
title and interests of Tenant hereunder upon thirty (30) days written
notice to Tenant.
(d) Additional Rent. In addition to all other rent required to be paid
pursuant to the terms of this Paragraph 4, Tenant shall pay, as additional
rent, the sums required to be paid pursuant to other provisions of and
exhibits to this Lease, whether or not designated "additional rent". If
such amounts or charges are not paid at the time provided in this Lease,
they shall, nevertheless, be collectible as additional rent with the next
or any future installment of Guaranteed Minimum Rent thereafter falling
due, but nothing contained in this sentence shall be deemed to suspend or
delay the payment of any amount of money or charge at the time the same
becomes due and payable hereunder, or limit any other remedy of Landlord.
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(e) Interest and Late Charges. If Tenant fails to pay, when due and
payable, any rent, additional rent or other amounts or charges of any kind
or character provided in this Lease, such unpaid amounts shall bear
interest at the maximum lawful interest rate from the date due to the date
of payment; but if there is no maximum lawful interest rate, then at the
rate of eighteen percent (18%) per annum. In addition, if Tenant shall fail
to pay any monthly installment of Guaranteed Minimum Rent or additional
rent by the tenth (10th) day of the month in which the installment is due,
a late charge equal to $200.00 shall be assessed; provided that in no event
may any late charge and/or interest provided in this Paragraph 4(e) exceed
the maximum permitted by law or be imposed prior to the date permitted by
law.
(f) Payment of Rent. All rent and additional rent payments provided
for in this Lease, except for the payment of Marketing Fund and Advertising
Fund fees, shall be made payable to One Federal Street Joint Venture, c/o
Faison & Associates, Inc., P.O. Box 70160, Richmond, Virginia 23255-0160
until notice to the contrary is given by Landlord. All Marketing Fund and
Promotion Fund fees shall be payable to Regency Square
Marketing/Advertising Fund at 1420 Parham Road, Richmond, Virginia 23229
until notice to the contrary is given by Landlord. Rent shall be deemed
paid when received by Landlord.
(h) Survival. The rights and obligations of Landlord and Tenant set
forth in this Paragraph 4 shall survive the expiration or earlier
termination of this Lease.
5. Improvements and Delivery of Demised Premises
(a) If Tenant is not on the date hereof in possession of the Demised
Premises, Landlord agrees to deliver possession of the Demised Premises to
Tenant upon the later to occur of: (i) the date this Lease is fully
executed and delivered to Tenant; or (ii) the date that the Demised
Premises shall be available for occupancy by Tenant. If Landlord shall be
unable to deliver possession of the Demised Premises ready for Tenant's
Work within one (1) year from the date of this Lease, this Lease shall
automatically cease and terminate and be deemed cancelled and of no further
force and effect as of such date; and any money or security deposited
hereunder shall be returned to Tenant. Thereafter neither party shall have
any further liability to the other, either for damages or otherwise, by
reason of such cancellation arising out of or in connection with this Lease
as though this Lease had not been executed in the first instance. Landlord
agrees that provided the current tenant in the Demised Premises has vacated
the Demised Premises, Landlord shall deliver the Demised Premises on or
before July 1, 1997.
(b) Landlord shall deliver the Demised Premises to Tenant "as is" and
shall have no duty to make any modifications or improvements to the Demised
Premises, except as otherwise set forth herein; provided, however, that
Tenant expressly agrees that any tenant occupying the Demised Premises on
the date hereof may remove its personal property or trade fixtures to the
extent permitted by the tenant's lease or by law and that the Demised
Premises, after the removal of any such personal property or trade
fixtures, shall be considered "as is" within the meaning of that term in
this Paragraph 5(b), except as otherwise set forth herein. Landlord makes
no representations or warranties with respect to the condition of the
Demised Premises, except as otherwise set forth herein. Notwithstanding the
foregoing, prior to delivery of the Demised Premises by Landlord to Tenant,
Landlord agrees to stub electricity and water/sewer to a point at the rear
of the Demised Premises as determined by Landlord to the extent the same do
not already exist. Further, Landlord shall provide neutral piers. By
occupying the Demised Premises after
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the delivery of possession, to install fixtures, facilities or equipment or
to perform finishing work, or for any other purpose, Tenant shall be deemed
to have accepted the same and to have acknowledged that the Demised
Premises are in the condition required by this Lease.
(c) Upon delivery of possession of the Demised Premises by Landlord,
Tenant shall with due diligence proceed to remodel and renovate the Demised
Premises, installing such stock, fixtures and equipment and performing such
other work as shall be necessary or appropriate for the operation of its
business ("Tenant's Work"), all in accordance with plans and specifications
approved by Landlord as specified below and as described in the Tenant
Design & Construction Criteria Manual (the "Criteria") for the Shopping
Center. Landlord has delivered the Criteria to Tenant and Tenant
acknowledges receipt thereof. The Criteria are incorporated by reference in
this Lease and any material default under the Criteria shall be a default
under the Lease. Tenant shall complete all such work so that it may open
for business in the Demised Premises on the Rent Commencement Date. Tenant
agrees to submit to Landlord plans and specifications covering all work and
installations which Tenant proposes to do in the Demised Premises,
including, without limitation, interior store layout, storefront,
mechanical layout, fixtures and decor, all of which shall be in accordance
with generally accepted construction standards for a first class shopping
mall and in accordance with the Criteria. Tenant's plans and specifications
shall be prepared in such detail as Landlord may reasonably require, and
Tenant agrees not to commence work upon any of Tenant's Work until Landlord
has approved Tenant's plans and specifications and Tenant's architect and
contractor in writing. In the event that Tenant does not complete Tenant's
Work in accordance with its plans and specifications and open the Demised
Premises for the conduct of its business on the Rent Commencement Date,
Landlord shall have, in addition to any and all remedies herein provided,
the right at its option to collect in lieu of Percentage Rent as provided
in Paragraph 4(c), additional rent at the rate of one-fifteenth (1/15th) of
the monthly Guaranteed Minimum Rent per day for each and every day that
Tenant shall fail to commence to do business after that date.
(d) Landlord makes no representations as to the period or periods that
the Major Stores or any other tenant in the Shopping Center will be open
for business, and this Lease will not be affected by any closing of any
such business.
(e) Tenant shall reimburse Landlord within twenty (20) days after
receipt of an invoice therefor, for pre-opening services provided by
Landlord and utilized by Tenant prior to the Rent Commencement Date. The
unit cost for the pre-opening services shall be a one-time charge equal to
One Thousand Five Hundred and no/100 Dollars ($1,500.00).
(f) Landlord may, at Tenant's sole cost and expense, elect to install
a temporary store front or barricade during the performance by Tenant of
Tenant's Work in the Demised Premises or until Tenant opens the Demised
Premises for business or during any period within the Lease Term during
which Tenant is making alterations to the Demised Premises. The cost of
such temporary store front or barricade shall equal Fifty-five and no/100
Dollars ($55.00) per linear foot of lease line fronting on the Common
Areas. Within twenty (20) days after receipt of an invoice therefor, Tenant
shall reimburse Landlord the full cost of the temporary store front or
barricade.
6. Use of the Premises
(a) Continuous Occupancy. The Demised Premises shall, during the Lease
Term, be used and occupied only for the Use Permitted specifically set
forth in this Lease in Paragraph 1(i) and for no other purpose and operated
only under the Trade Name specifically set forth in this Lease in Paragraph
1(j) and under no other name or such other trade name as Tenant may use for
all or substantially all of its stores, without the written consent of
Landlord. Landlord agrees not to unreasonably withhold its consent to a
change in the Trade Name. Tenant shall keep the Demised Premises open for
business
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continuously during the Lease Term between the hours of 10:00 a.m. and 9:30
p.m., six days per week, and between the hours of 12:30 p.m. and 5:30 p.m.
on Sundays, or such different hours as shall be prescribed by Landlord,
provided Landlord imposes those different hour requirements on a numerical
majority of the tenants of the Shopping Center. Tenant's obligation to open
for business shall be subject to governmental regulations or governmental
recommendations approved by Landlord with which Tenant hereby agrees to
comply. Tenant shall install and maintain in the Demised Premises store
fixtures of high quality and shall, after the Rent Commencement Date,
continuously, actively and diligently operate its business in the whole of
the Demised Premises in a high-grade, reputable manner throughout the Lease
Term, maintaining in the Demised Premises a full staff of employees and a
full and complete stock of merchandise, and in general employ its best
business judgment, efforts and abilities to operate its business in an
efficient and businesslike manner, to the end that the maximum volume of
sales which can be reasonably produced in the Demised Premises shall be
realized under the Trade Name set forth in Paragraph 1(j). Under no
circumstances shall the Demised Premises be used for any of the following
purposes:
(i) the sale or distribution of alcoholic beverages for
consumption on or off the Demised Premises, unless first approved in
writing by Landlord; or
(ii) the sale of merchandise from vending machines, without the
prior written consent of Landlord, except vending machines installed
for sales to employees only; or
(iii) the operation of coin or token-operated video games or
machines of a similar nature.
(b) Failure to Comply. If Tenant fails to comply with any provision of
this Paragraph 6, then, in addition to any and all other equitable and
legal remedies which Landlord may have, Tenant agrees to pay on the first
day of each month, as additional rent, a sum equal to one-half (1/2) of the
Guaranteed Minimum Rent provided for in Paragraph 4(a) for the period it
fails to comply with such requirements, adjusted on a daily basis.
(d) Tenant shall not use or suffer or permit to be used the Demised
Premises or any part thereof in violation of any law or ordinance or any
regulation of any governmental authority or in any manner that will
constitute a nuisance, or that will injure the reputation of the Shopping
Center or any part thereof, or for any hazardous purpose, or that will
violate, suspend, void or serve to increase the premium rate of or make
inoperative any policy or policies of insurance of any kind whatsoever at
any time carried on any property, buildings or improvements in the Shopping
Center or any part thereof.
(e) Rules and Regulations. Tenant shall, before opening for business
in the Demised Premises, comply in all respects with the Criteria. In
addition, during the Lease Term, Tenant agrees:
(i) To take possession and open for business, as required hereby;
and, to keep its display windows, including windows and shadow boxes
in the Demised Premises, dressed and illuminated and its interior mall
signs and lights suitably lighted until
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10:00 p.m., except for special promotional events approved or
sponsored by Landlord.
(ii) To keep the Demised Premises, including all vestibules,
entrances and returns located therein, all improvements thereon, and
all windows, doors and glass or plate glass fixtures, in a safe, neat
and clean condition at all times; and to keep the windows free from
unsightly window advertising and to refrain from painting or otherwise
covering the same, or making any changes thereto or to the front of
the Demised Premises, and not to have any signs or merchandise located
within one (1) foot of the front of the Demised Premises or within one
(1) foot from any store window thereof, except that Tenant may display
its product under glass within 6 inches of the front of the Demised
Premises. The attachment of advertising to plate glass, store fronts,
doors and/or windows is prohibited.
(iii) To store or stock in the Demised Premises only such goods,
wares, merchandise, or other property as shall be reasonably required
in connection with Tenant's business in the Demised Premises.
(iv) To use for offices, clerical or other non-selling purposes
only such space in the Demised Premises as is from time to time
reasonably required for Tenant's business therein.
(v) To store and/or separate all trash and garbage in adequate
containers within the Demised Premises, maintained in a neat and clean
condition and located as Landlord shall from time to time designate,
and so as not to be visible to the public in or outside the Shopping
Center and so as not to create or permit any health, safety or fire
hazard, and arrange for regular removal thereof at Tenant's expense.
If Landlord requires the same, all garbage and trash must be compacted
in the manner and in a location in or outside the Demised Premises as
reasonably required by Landlord. In the event that any governmental
authority requires or recommends that trash and garbage be separated
and recycled, Tenant agrees to comply with such requirement or
recommendation.
(vi) Not to burn any papers, trash or garbage of any kind in or
about the Demised Premises or the Shopping Center.
(vii) Not to use or operate any equipment, fixtures or machinery
which in Landlord's reasonable opinion is harmful to it or disturbs
other tenants or customers in the Shopping Center. Landlord
acknowledges that the Demised Premises are to be used as a food
service operation and Tenant's kitchen equipment, fixtures and
machinery approved by Landlord shall not be deemed harmful.
(viii) Not to use the plumbing facilities for any purpose other
than that for which they were constructed. Tenant shall not dispose of
any substances in such facilities which may clog, corrode or damage
the plumbing pipes, lines or conduits of the Shopping Center whether
through the utilization of "garbage disposal" units or otherwise. If
Tenant uses the Demised Premises for the sale, preparation or service
of food, Tenant shall regularly perform chemical and/or enzyme
cleaning and/or shall install such grease traps as are necessary or
desirable to prevent the accumulation of grease or other wastes in the
plumbing facilities servicing the Demised Premises. The foregoing
shall not be deemed to permit Tenant to use the Demised Premises as
provided in the preceding sentence unless such use is specified in
Paragraph 1(i).
(ix) Not to distribute any handbills or other advertising matter
on or about any part of the Shopping Center outside the Demised
Premises.
(x) Not to advertise any going-out-of-business, removal, fire,
bankruptcy, auction or other distress sale on the Demised Premises. If
any such covenant by Tenant is deemed unlawful, then no such activity
may be so conducted, unless and until satisfactory proof has been
supplied to Landlord that the person intending to conduct such sales
has complied meticulously with all legal requirements, including
without limitation any applicable rules and regulations of the Federal
Trade Commission.
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(xi) Not to use any sidewalks, walkways or other Common Areas of
the Shopping Center, or any vestibules or entrances located within the
Demised Premises for the keeping, displaying, advertising and/or sale
of any merchandise or other object.
(xii) Not to install on or about the Demised Premises any
exterior lighting, amplifiers or similar devices, and not to use in,
on or about the Demised Premises any advertising medium which may be
heard or experienced outside the Demised Premises, such as flashing
lights, search lights, loudspeakers, phonographs, television, radio
broadcasts or video players. Except for the music system set forth in
Exhibit E, Section D, Tenant shall not use, install or cause to be
installed in the Demised Premises any background music and/or public
address system.
(xiii) Not to install a television antenna outside the Demised
Premises without Landlord's written consent. If Tenant is permitted to
connect with any master antenna provided by Landlord, Tenant shall
furnish and install any and all wiring and booster systems related to
such connection and the operation within the Demised Premises of
television receivers, and Tenant shall pay to Landlord such reasonable
connection and/or subscription charges as Landlord may establish.
(xiv) To keep the Demised Premises clean, orderly, sanitary and
free from objectionable odors and from termites, insects, vermin and
other pests, and not to keep any live animals of any kind in, upon or
about the Demised Premises. Any program of extermination and the
company or person performing the same shall be subject to Landlord's
approval, not to be unreasonably withheld. If Landlord establishes any
pest, vermin or other extermination program for all or part of the
Shopping Center, it may require Tenant to participate in such program;
and Tenant covenants to reimburse Landlord the reasonable cost thereof
as estimated by Landlord, including, but not limited to, Landlord's
reasonable expense in administering the program.
(xv) To comply with any and all requirements of any of the
constituted public authorities, and with the terms of any state or
federal statute or local ordinance or regulation applicable to Tenant
or its use of the Demised Premises, and to save Landlord harmless from
penalties, fines, costs, expense or damages resulting from Tenant's
failure to do so.
(xvi) To give to Landlord immediate verbal notice followed by
prompt written notice of any accident, fire or damage occurring on or
to the Demised Premises.
(xvii) To perform all loading and unloading of goods only at such
times, in the areas and through such entrances as may be designated
for such purposes by Landlord. Trailers and/or trucks servicing the
Demised Premises shall follow such routes in the Shopping Center as
are designated by Landlord and shall remain parked in designated areas
of the Shopping Center as from time to time required by Landlord.
(xviii) To require Tenant's employees to park their vehicles only
in those portions of the parking area or at such other places as are
designated for that purpose by Landlord from time to time. Tenant
agrees that at least five (5) days prior to its opening for business
in the Shopping Center and from time to time thereafter, within five
(5) days after receipt of written notice from Landlord, it will
furnish Landlord with the make, model and State license numbers
assigned to Tenant's vehicles, and the vehicles of all of Tenant's
directors, officers, employees, agents, contractors, subtenants,
licensees and concessionaires, and that if required by Landlord, such
vehicles will be identified or marked with a standard plate, sticker
or other means of identification provided by Landlord. Tenant further
agrees that it will require all employees to execute an agreement in
form satisfactory to Landlord authorizing Landlord, without notice or
liability, to remove any employee's vehicle not parked in a designated
area and to have such vehicle placed in the designated area, with the
Tenant to bear the reasonable expense of such towing. In the event of
a failure to park in the portion of the parking area designated by
Landlord as aforesaid (whether or not the vehicle of an offending
employee is towed) or failure of any employee of Tenant to place
identification provided by Landlord on his vehicle, Tenant agrees to
pay Landlord as additional
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rent Ten and no/100 Dollars ($10.00) per vehicle for each day such
violation continues.
(xix) Not to place a load on any floor exceeding the floor load
per square foot which such floor was designed to carry. Tenant shall
not install, operate or maintain any heavy item of equipment in the
Demised Premises except in such manner achieving proper distribution
of weight satisfactory to Landlord's architect or structural engineer.
(xx) To comply with all reasonable rules and regulations of
Landlord in effect at the time of the execution of this Lease, or at
any time or times, and from time to time promulgated by Landlord,
which Landlord in its sole discretion shall deem necessary for the
proper operation of the Shopping Center, or the Demised Premises, all
in accordance with good standards for the operation of a regional
enclosed mall shopping center, including, but not limited to, the
installation of such fire extinguishers and other safety equipment as
Landlord may require; it being understood that Landlord may except
certain tenants leasing more than ten thousand (10,000) square feet
from compliance with all or part of the rules and regulations.
Landlord agrees not to discriminate against Tenant in enforcing such
rules and regulations.
(f) Installation of Signs, Awnings, Canopies, Fixtures and Alterations
by Tenant. All fixtures installed by Tenant shall be new. After the
completion of Tenant's Work, Tenant shall not decorate, paint or in any
other manner alter the Demised Premises, or any part thereof, and shall not
install or affix any sign, device, fixture or attachment on or to the
exterior or interior of the Demised Premises, or any building or any part
thereof on the Demised Premises, including the roof or the canopy thereof,
nor place any vents, structure, building, improvements, sign or advertising
device, or obstruction of any type or kind upon the Common Areas or upon
the Demised Premises without first obtaining Landlord's written consent and
complying in all respects with the provisions of the Criteria, unless the
Landlord consents to the contrary in writing, which consent shall not be
unreasonably withheld. If Tenant shall do any of the foregoing acts in
contravention of this Paragraph 6(f), without limiting any other remedy
Landlord may have therefor under this Lease, in law or in equity, Landlord
shall have the right to remove any such decoration, paint, alteration,
sign, device, fixture or attachment and restore the Demised Premises or the
Common Areas to the condition thereof prior to such act. The cost of such
removal and restoration shall be paid by Tenant to Landlord as additional
rent within ten (10) days after written demand. If requested by Landlord,
Tenant agrees to remove any and all signs, awnings, canopies, fixtures,
alterations, installations, additions and/or improvements from the Demised
Premises at the expiration or earlier termination of the Lease Term.
(g) Hazardous Materials.
(i) Hazardous Materials Defined. For purposes of this Paragraph,
the term "Hazardous Materials" includes, without limitation, any
flammable explosives, radioactive materials, asbestos and asbestos
containing materials, hazardous wastes, hazardous or toxic substances,
or related materials defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Sections 1801, et seq.), the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C. Sections
6901, et seq.), and in the regulations adopted and publications
promulgated pursuant thereto, or any other federal, state or local
environmental laws, ordinances, rules, or regulations dealing with
hazardous materials.
(ii) Environmental Regulations Defined. For purposes of this
Paragraph 6(g), the term "Environmental Regulations" shall mean all
federal, state and local laws, including all zoning laws or
ordinances, and all regulations, codes, requirements, public and
private land use restrictions, rules and orders which relate to or
govern Hazardous Materials and/or the environmental conditions in, on,
under or about the Demised Premises, including, but not limited to,
air quality, soil conditions and surface and subsurface water
conditions.
(iii) Environmental Compliance. Tenant represents, warrants, and
covenants to Landlord that Tenant shall at no time use or permit the
Demised Premises to be
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used in violation of any Environmental Regulations. Tenant shall
assume sole and full responsibility for, and shall remedy in its sole
cost and expense, all such violations. Tenant shall at no time use,
generate, release, store, treat, dispose of, or otherwise deposit, in,
on, under or about the Demised Premises any Hazardous Materials in
violation of any Environmental Regulations; or permit or allow any
third party to do so, without Landlord's express, prior, written
consent. Tenant's compliance with the terms of this subparagraph (iii)
and with all Environmental Regulations shall be at Tenant's sole cost
and expense. Tenant shall pay or reimburse Landlord for any costs or
expenses incurred or payable by Landlord, including reasonable
attorneys', engineers', consultants' and other experts' fees and
disbursements to determine, review, approve, consent to or monitor the
requirements for compliance with Environmental Regulations.
Tenant shall provide Landlord with written notification,
immediately upon the discovery or notice or reasonable grounds to
suspect, by Tenant, its successors, assigns, licensees, invitees,
employees, agents, partners and/or any other third party, that any
provision of this paragraph has not been strictly complied with.
Landlord may exercise any of its rights and remedies under this Lease,
including the provisions of Paragraph 16, if any provision of this
paragraph is not strictly complied with at all times. Landlord's
election to conduct inspections of the Demised Premises shall not be
construed as approval of Tenant's use of the Demised Premises or any
activities conducted thereon, and shall in no way constitute an
assumption by Landlord of any responsibility whatsoever regarding
Tenant's use of the Demised Premises or Hazardous Materials.
(iv) Indemnification. Tenant shall defend, indemnify and hold
harmless Landlord and its employees, agents, officers and directors
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses of whatever kind or nature,
known or unknown, contingent or otherwise arising out of or in any way
related to the acts and omissions of Tenant, Tenant's officers,
directors, employees, agents, contractors, subcontractors, subtenants
and invitees with respect to (a) the generation, manufacture,
transport, treatment, storage, handling, production, processing,
disposal, release or threatened release of any Hazardous Materials
which are on, from, or affecting the Demised Premises, including,
without limitation, the soil, water, vegetation, buildings and
improvements thereon, (b) any personal injury (including wrongful
death) or property damage (real or personal) arising out of or related
to such Hazardous Materials, (c) any lawsuit brought or threatened,
settlement reached, or governmental order relating to such Hazardous
Materials, and (d) any violations of laws, orders, regulations,
requirements or demands of government authorities, or any reasonable
policies or requirements of Landlord, which are based upon or in any
way related to such Hazardous Materials including, without limitation,
attorney and consultant fees, investigation and laboratory fees, court
costs and litigation expenses. This indemnification shall survive the
termination, cancellation and surrender of this Lease however
effectuated.
(v) Termination, Cancellation, Surrender. In the event this Lease
is terminated, cancelled or surrendered for any reason whatsoever,
Tenant shall deliver the Demised Premises to Landlord free of any and
all Hazardous Materials installed by or on behalf of Tenant so that
the condition of the Demised Premises shall conform with all
Environmental Laws affecting the Demised Premises.
(vi) If subsequent to the date Tenant accepts possession of the
Demised Premises it is determined that there are any
asbestos-containing materials (other than vinyl asbestos tile or
mastic) ("Asbestos") in the Demised Premises which were installed
prior to Landlord's delivery of the Demised Premises to Tenant, and
such Asbestos was not installed by Tenant or any affiliate of Tenant
(or any party acting under Tenant or its affiliate) during a prior
occupancy of the Demised Premises or a portion thereof, and such
Asbestos is required by applicable Law to be removed, encapsulated or
otherwise treated (a "Remediation"), then Tenant shall as soon as
practicable, give written notice to Landlord advising Landlord of the
condition. Upon receipt of said notice from Tenant, Landlord shall
perform the Remediation at Landlord's cost as Landlord deems
appropriate so that Environmental Law is complied with. If on account
of any Remediation Landlord performs at the Demised Premises, Tenant
cannot and does not operate in the entire Demised Premises, then all
regularly payable Guaranteed Minimum Rent shall abate
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until the earlier of the date Tenant can again reasonably operate in
the Demised Premises or the date Tenant does begin operating in the
Demised Premises. Notwithstanding anything contained herein to the
contrary, if any Remediation was necessitated by the act of Tenant or
Tenant's agent, employees or contractors, the Remediation shall be at
Tenant's expense. Tenant shall cooperate with Landlord in connection
with any Remediation Landlord performs at the Demised Premises.
7. Landlord's Covenant to Maintain
Landlord will keep and maintain in good order and repair during the Lease
Term the roof, the exterior and principal structural portions of the buildings
and other improvements constituting the Shopping Center; provided, however, that
Landlord will not be responsible for or required to make, and Tenant will make,
any repairs which may have been occasioned or necessitated by the negligence of
Tenant, its agents, employees or invitees. Landlord shall not be liable for any
damages resulting from its failure to make repairs, unless such failure
continues beyond a reasonable time after receipt of notice from Tenant of the
necessity for such repairs.
8. Tenant's Covenant to Maintain
(a) Tenant will, at its own expense, keep and maintain in good order
and repair during the Lease Term all parts of the Demised Premises,
including without limitation, the storefront, any exterior wall separating
the Demised Premises from the enclosed mall, the interior thereof and all
window glass, plate glass, plumbing, wiring, electrical systems and those
portions of central heating and air-conditioning systems exclusively
serving the Demised Premises.
(b) Tenant shall maintain all heating and air-conditioning equipment
serving the Demised Premises, and shall keep in force a standard
maintenance agreement on all such equipment and provide a copy of said
maintenance agreement to Landlord. All parts of the interior of the Demised
Premises shall be painted by Tenant when reasonably necessary, as
determined by Landlord, but at least every four (4) years. Tenant will
surrender the Demised Premises at the expiration or earlier termination of
this Lease in as good condition as when initially completed, excepting only
deterioration caused by ordinary wear and tear and damage by fire or other
casualty which results in an early termination of the Lease, and except as
expressly provided to the contrary in this Lease. All replacements and
modifications made by Tenant to the Demised Premises shall become the
property of Landlord at the end of the Lease Term, subject to the other
provisions of this Lease.
(c) Should Tenant, with Landlord's approval, desire to install a
cooling tower or other air conditioning equipment on the roof of the
building of which the Demised Premises forms a part, or desire to perform
any other work on the roof, Tenant agrees to assume primary responsibility
for the maintenance and repair of that portion of the roof where such
installation is made or such work performed. All such work, maintenance and
repair shall be performed by Landlord or Landlord's designee. Tenant shall
pay Landlord for such work within thirty (30) days after demand by
Landlord. Such installation and the operation, maintenance and repair
thereof shall be made by such persons and in such manner that the rights of
Landlord under any roofing bond or roof guaranty then in force shall not be
affected or voided thereby. Tenant agrees to be solely responsible for all
damages to Landlord and/or other tenants in the Shopping Center resulting
from the installation, operation, maintenance and/or repair of such cooling
tower or other air conditioning equipment, or other equipment or work of
any nature.
(d) If any repairs required to be made by Tenant under this Lease are
not completed within thirty (30) days, or in case of emergency if those
repairs are not made immediately, Landlord, without limiting any other
right or remedy it may have therefor, may at its option make such repairs
without liability to Tenant for any loss or damage which may result to its
stock or business by reason of such repairs; and, Tenant shall pay to
Landlord as additional rent within thirty (30) days after written demand,
the cost of such repairs. If any repairs required to be made by Tenant are
commenced when necessary, but cannot be completed within thirty (30) days,
then Tenant shall have an additional reasonable period of time to complete
the repairs, so long as it continues to prosecute the completion of the
repairs with due diligence, and provided it keeps Landlord fully informed
on the progress of its repairs.
(e) Except as specifically provided in Paragraph 7 and Paragraph 13,
Landlord shall have no obligation to repair, maintain, alter, replace or
modify the Demised Premises or any part thereof, or any plumbing, heating,
electrical, air-conditioning or other mechanical installation
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therein, or serving same. Under no circumstances shall Landlord be
obligated to repair, replace or maintain any windows, doors, plate glass or
door or window glass, except when and to the extent of proceeds received
from Landlord's fire, extended coverage or other hazard insurance.
Notwithstanding the provisions of this Paragraph 8, Tenant will not be
responsible or required to make, and Landlord will make any repairs which
may have been occasioned or necessitated by the negligence of Landlord, its
agents or employees (acting within the scope of their employment), to the
extent that liability for such occurrence is not coverable by the policies
of insurance required to be maintained by Tenant pursuant to this Lease.
9. Common Areas
(a) Control of Common Areas. The Common Areas shall at all times be
subject to the exclusive control and management of Landlord; and Landlord
shall have the right from time to time to change, enlarge, diminish or
rearrange the area, level, location and arrangement of the Common Areas, to
restrict parking by tenants and their employees to employee parking areas,
and to make all rules and regulations and do such things from time to time
as in Landlord's sole discretion may be necessary regarding said Common
Areas. Landlord shall not make any permanent changes to the Common Areas to
materially adversely affect customer access to the Demised Premises from
the interior of the enclosed mall. Landlord hereby reserves the right at
any time to make alterations or additions to and to build additional
stories on the building in which the Demised Premises are a part and to
build adjoining the same. Landlord further reserves the right to construct
other buildings or improvements in the Shopping Center or the Integrated
Shopping Center, including without limitation, in the Common Areas, and/or
to add additional land to the Shopping Center or the Integrated Shopping
Center and construct buildings or improvements thereon, from time to time,
and to make improvements, alterations or additions and to build additional
stories on any such buildings or improvements, and to build adjoining same
and to construct below ground or elevated parking facilities.
Tenant consents and agrees that any and/or all of the Common Areas and
any and all services and facilities and any access to the Demised Premises
or the Shopping Center may, without suspension or abatement of Tenant's
obligations hereunder, be suspended, in whole or in part, during such times
as on legal holidays, on such other days as may be declared by local, state
or Federal authorities as days of celebration or observance, or during any
period of actual or threatened civil commotion, insurrection or other
circumstances beyond Landlord's control when Landlord, in Landlord's sole
judgment, shall deem the suspension of such services, facilities and access
necessary for the protection and preservation of persons or property.
Landlord may at any time close temporarily all or part of the Common
Areas to make repairs or changes therein or to effect construction, repair
or changes within the Shopping Center, to prevent the acquisition of public
rights in such area, or to discourage non-customer parking, and may do such
other acts in and to the Common Areas as in its judgment may be desirable
to improve the convenience thereof.
(b) Tenant's Share of Common Area Costs. In each calendar year or
partial calendar year of the Lease Term after the Rent Commencement Date,
Tenant will pay to Landlord as additional rent without deduction or
set-off, its pro rata share of Landlord's actual cost for operating and
maintaining the Common Areas. Landlord's cost of maintaining the Common
Areas shall mean total costs and expenses incurred in operating,
maintaining and repairing the Common Areas, including, without limitation,
the cost of all materials, supplies and services purchased or hired
therefor; the cost and expense of landscaping, gardening and planting,
cleaning, painting (including striping), decorating, repaving, lighting,
sanitary control, removal of snow, trash, garbage and other refuse, roof
repairs, heating, ventilating and air conditioning of the enclosed malls,
fire protection, security devices and personnel, water and sewage charges,
any parking tax or surcharge imposed by law against the Landlord, the
Shopping Center, or the Common Area therein; the costs of capital
improvements made to the building of the Shopping Center after the Rent
Commencement Date which, in Landlord's reasonable judgment, are expected to
result in a net reduction of Common Area cost or are required under any
governmental law or regulation that was not applicable to the Shopping
Center as of the date of this Lease , such cost thereof to be amortized
over such reasonable period as Landlord shall determine, together with
interest on the unamortized balance at the rate of two percent (2%) per
annum in excess of the Prime Rate as published in the Wall Street Journal
on the date such capital improvements are completed or if such rate is no
longer published then at the rate of two percent (2%) per annum in excess
of the Prime Rate of American Security Bank (Washington, DC), or such
higher rate as may have been paid by Landlord on funds borrowed for the
purpose of constructing said capital improvements; the cost of all
insurance carried by Landlord, covering the
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Common Area, including without limitation, public liability, personal
and bodily injury and property damage liability and automobile coverage,
fire and extended coverage, rent interruption, vandalism and malicious
mischief and all broad form coverages, sign insurance and any other
insurance that may be carried by Landlord covering the Common Area, all in
limits selected by Landlord, {provided, however, such costs for insurance
are not included in the amounts paid by Tenant pursuant to Paragraph 4(b)}
the cost of operation of loudspeakers and any other equipment supplying
music to the Common Areas or any parts thereof; the cost of a customer
service booth or area and personnel related thereto; the cost of operation
of public toilets, installing and renting of signs, maintenance, repair and
replacement of utility systems serving the Common Areas, including water,
sanitary sewer and storm water lines and other utility lines, pipes and
conduits; depreciation of machinery and equipment owned and used in the
operation, maintenance and repair of the Common Areas or the rental, repair
and maintenance charges for such machinery and equipment; payments toward
mass transit or car pooling facilities or otherwise as required by Federal,
State or local authorities; costs and expenses in connection with
maintaining Federal, State or local governmental ambient air and
environmental standards; the cost of personnel (including applicable
payroll taxes, workmen's compensation insurance and disability insurance)
to implement all of the foregoing, including the policing of the Common
Areas and the directing of traffic and parking of automobiles on the
parking areas thereof; and the management fee payable to the manager of the
Shopping Center; plus fifteen percent (15%) of such costs to cover
administration and overhead, and less any amounts paid by Major Stores and
tenants whose spaces do not front on the enclosed mall toward such cost.
Landlord may cause any or all of said services to be provided by an
independent contractor or contractors. Landlord agrees not to charge such
15% administration and overhead fee on real estate taxes, Landlord's
property insurance on the Shopping Center, Landlord's liability insurance
or the management fee. Tenant's pro rata share shall be computed by
multiplying Landlord's costs by a fraction having as its numerator the
Floor Area of the Demised Premises as set out in Paragraph 1(a) and as its
denominator the Gross Leased Area of the Shopping Center. Landlord shall
bill Tenant for such costs as a separate charge in advance on the first day
of each calendar month in an amount estimated by Landlord. Such estimate
will be based on Landlord's projected costs for operating and maintaining
the Common Areas for that calendar year.
After the end of each calendar year, Landlord will furnish to Tenant a
statement showing in reasonable detail the amount of Landlord's costs for
such services for the preceding calendar year, any deficit will be paid by
Tenant within thirty (30) days after demand from Landlord. Any surplus will
be applied against Guaranteed Minimum Rent thereafter coming due. The
annual and monthly payments for the ensuing calendar year shall be
estimated accordingly. Changes in applicable Floor Areas shall result in
corresponding pro rata adjustments.
The following items shall not be included in any Common Area costs,
Food Park Area charges and/or charges that are payable by Tenant:
(i) debt service of any loans related to any part of the Shopping
Center, including any interest thereon, or any expenses or charges
related to or arising out of such loans;
(ii) rents arising out of or becoming due under any underlying
ground lease, together with any expenses or charges related to or
arising out of such ground lease;
(iii) costs incurred in the encapsulation, disposal, removal or
abatement of Hazardous Materials from within, upon or beneath the
Shopping Center;
(iv) cost of repairs or replacements to cure latent defects in
the structural elements of the Shopping Center;
(v) capital expenditures or depreciation, except for capital
expenditures that will reduce the cost of maintaining the Common Areas
and depreciation of equipment used to maintain the Common Areas;
(vi) contributions to any "reserve fund" (or the like) which
Landlord may maintain for the purpose of paying costs associated with
any future repairs, replacements or modification of the Common Areas
or Food Park Area;
(vii) expenditures for the initial improvements constructed upon
the Shopping Center or for expenditures for the initial improvements
of any expansion, alteration or modification thereof;
(viii) costs of any items to the extent Landlord is reimbursed
from insurance proceeds;
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(ix) wages, salaries, or other benefits paid to any off-site
employees except to the extent of the management fee and the fifteen
percent (15%) administrative fee specifically set forth in Paragraphs
9(b) and 9(d) of this Lease is applied thereto;
(x) costs, disbursements or expenses (including, but not limited
to, advertising expenses, legal fees, vacancy costs, rent or other
rent concessions and/or refurbishment or improvement expenses, leasing
commissions, attorneys' fees) incurred in connection with or arising
out of negotiations or disputes with tenants or other occupants or
prospective tenants of the Shopping Center, or associated with the
enforcement, defense, execution or renewal of any lease or recovery of
possession of any tenant's premises or the defense of Landlord's title
to or interest in the Shopping Center or any part thereof or defense
of any alleged violation by Landlord of any lease affecting the
Shopping Center or part thereof;
(xi) increases in insurance premiums due specifically as a result
of another tenant's use of its premises or due to a violation by
another tenant of its lease;
(xii) repairs, restoration or other work resulting from any
eminent domain proceeding or similar governmental or
quasi-governmental taking or deed or sale in lieu thereof,
(xiii) costs that the Landlord is entitled to recover from third
party contractors or warrantors as a result of provisions contained in
their specific contracts and/or warranties;
(xiv) costs related to or compensation to employees or other
persons utilized in commercial concessions (other than Landlord's
customer service booth or similar concession) owned or operated by
Landlord, except where concessions owned are offered solely for the
benefit of the tenants or other occupants of the Shopping Center;
(xv) costs, fines or penalties incurred due to violations by
Landlord of any lease or any governmental laws, rules or regulations;
or
(xvi) overhead and profit paid to any subsidiary or affiliate of
Landlord to the extent that the cost thereof would not have been paid
had the services and materials been provided by an unaffiliated third
party on a competitive basis.
(c) Security. Landlord may, from time to time and to the extent it
deems appropriate in its reasonable discretion, determine whether to supply
security services in the Common Areas and additional traffic control for
the Shopping Center. Notwithstanding any other provision of this Lease,
Landlord shall not be liable for any loss or damages suffered by Tenant or
anyone else by failure to supply such services or for any loss attributable
to such services when they are supplied, no matter how caused. It is
specifically understood and agreed that, by supplying such services,
Landlord shall not be deemed to relieve Tenant of its duty to maintain
security within the Demised Premises nor of its performance of the terms,
covenants and conditions of this Lease. If any such security services are
provided, the costs for the same shall be included in Common Area costs set
out in Paragraph 9(b) above.
(d) It is understood that Landlord may permit one or more "Mass
Transit" stops in the Common Areas of the Shopping Center for public
transportation at such locations and at such times, from time to time, as
Landlord may desire.
(e) Tenant shall pay its pro rata share of the costs and expenses, if
any, to Landlord for compliance with any governmental law, statute or
regulation in connection with any environmental or energy controls enacted
after the date hereof including, but not limited to, any governmental
parking tax, on the same basis as provided for the cost of Common Area
Maintenance under Paragraph 9(b), provided such expense is amortized in
accordance with generally accepted accounting principles.
(f) Notwithstanding any provisions of this Lease, if any governmental
law, statute, ordinance, regulation, executive order or proclamation or
other governmental requirement or any governmental regulation approved by
Landlord requires or recommends that Landlord not perform any obligation as
contained herein in connection with any energy generation and any energy
conservation or use program, the Landlord may comply therewith without
being deemed in violation of this Lease.
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10. Utilities
During the Lease Term, Tenant shall pay for all electricity, heat,
air-conditioning, water, sewage, janitor service, garbage disposal and other
utilities or services required by it in the use of the Demised Premises.
Landlord may elect to furnish any such utilities or services to Tenant, or may
contract with a third party to provide such utilities and services to Tenant, in
which event Tenant agrees to purchase the same from Landlord or Landlord's
designee provided that Landlord or Landlord's designee shall not charge more for
those services than the consumer rate that would be charged by the public
service corporation, municipal authority or other entity, as the case may be,
supplying similar services to a similar sized commercial customer in the area in
which the Demised Premises are situated. In addition, Landlord may elect to
furnish heat and air-conditioning to the Demised Premises by a central system
serving other parts of the Shopping Center, in which event Landlord will pay for
the cost of utilities incurred in providing heating and air-conditioning and for
all repairs and replacements necessary to maintain the equipment (excluding any
repairs which are the obligation of Tenant pursuant to Paragraph 8), and Tenant
will pay to Landlord in monthly installments for such heating and
air-conditioning, as additional rent, a sum determined on such reasonable and
non-discriminatory basis as Landlord may prescribe. Landlord reserves the right
thereafter to discontinue the use of said central system. Should Landlord elect
to install such system, Tenant agrees, at Tenant's expense, to connect Tenant's
equipment to Landlord's system. Landlord may elect to supply Tenant with
electricity for lighting and miscellaneous power needs, in which event Tenant
will pay to Landlord in monthly installments for such electricity, as additional
rent, a sum determined in accordance with Exhibit F which is designated "Energy
Service and Energy Charges".
Tenant agrees to operate any separate heating and air-conditioning unit in
the Demised Premises during all hours that Tenant's store is open for business
and during all hours that the heat and air-conditioning units for the enclosed
mall area are in operation, but in no event later than 10:00 p.m. or earlier
than 8:00 a.m.
Landlord shall not be liable to Tenant for any damages should the
furnishing of any utilities by Landlord be interrupted or required to be
terminated because of necessary repairs or improvements or any cause beyond the
reasonable control of Landlord. Nor shall any such interruption or cessation
relieve Tenant from the performance of any of Tenant's covenants, conditions and
agreements under this Lease. However, in the event it becomes reasonably
necessary for Tenant to cease operating its business within the Demised Premises
for a period of time in excess of three (3) consecutive business days as a
result of any interruption or termination in any utilities or services required
to be furnished by Landlord and in the further event that such interruption or
termination is due to the fault or negligence of Landlord or due to repairs,
installations or improvements which are the responsibility of Landlord, then
Guaranteed Minimum Rent and other charges under this Lease shall thereafter
abate until such services or utilities are restored.
11. Laws and Insurance Standards
Tenant shall, during the Lease Term, at Tenant's sole cost and expense,
promptly comply with all laws, ordinances, rules, regulations, directives and
standards of all federal, state, county and municipal governments and all
departments and agencies thereof having jurisdiction over the Demised Premises
now or hereafter in effect. Tenant shall, at Tenant's sole cost and expense,
make all changes to the Demised Premises which are or hereafter may be required
in order to comply with the foregoing. Notwithstanding the foregoing, Tenant
shall not be required to make any structural changes to the Demised Premises due
to the provisions of this Paragraph 11. Tenant expressly covenants and agrees to
indemnify and save Landlord harmless from any penalties, damages or charges
imposed for any violation of any of the covenants herein expressed, whether
occasioned by Tenant or any person upon the Demised Premises by license or
invitation of Tenant or holding or occupying the same or any part thereof under
or by right of Tenant. If Tenant fails to comply with any of the foregoing, and
as the result thereof the premiums for any insurance which Landlord may then or
thereafter have covering the Shopping Center or any part thereof are increased,
then, without limiting Landlord's other remedies or rights in regard to such
failure, Tenant shall pay to Landlord on demand all increases in any such
insurance premiums on the Shopping Center, or such part of any such increase as
Landlord may require on a reasonable basis.
Tenant shall have no claim against Landlord for any damages should Tenant's
use and occupancy of the Demised Premises for the purposes set forth in this
Lease be prohibited or substantially impaired by reason of any law, ordinance or
regulation of federal, state, county or municipal governments or by reason of
any act of any legal or governmental or other public authority. Landlord shall
be required to obtain all governmental licenses and permits and comply with all
requirements, laws, ordinances, rules, regulations, directives and standards of
all federal, state, county and municipal governments or agencies or constituted
public authorities having jurisdiction thereof applicable to Landlord's lease
obligations and its operation of the Shopping Center.
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12. Indemnification of Landlord and Tenant and Liability Insurance
(a) Subject to Paragraph 13(c), Tenant shall indemnify, defend and
hold Landlord harmless from suits, actions, damages, liability and expense
in connection with loss of life, bodily or personal injury or property
damage arising from or out of any occurrence in, upon, at or from the
Demised Premises or the occupancy or use by Tenant of the Demised Premises
or any part thereof, or occasioned wholly or in part by any act or omission
by Tenant, its agents, contractors, employees, servants, invitees,
licensees or concessionaires.
(b) Tenant shall store its property in, and shall occupy, the Demised
Premises at its own risk. Landlord and its agents, employees and
contractors shall not be liable for, and Tenant hereby releases, all claims
for bodily injury, death or property damage sustained by Tenant, or any
person claiming through Tenant, and resulting from any fire, accident,
occurrence or condition in or upon the Demised Premises or within the
Shopping Center. In particular, Landlord shall not be liable for (i) any
loss or damage to merchandise, equipment, fixtures or other personal
property of Tenant, or to Tenant's business; (ii) any injury, loss or
damage to any person or to any property of Tenant or any other person that
may be occasioned by or through the acts or omissions of persons occupying
other premises in the Shopping Center; (iii) any injury, loss or damage to
any person or to any property of Tenant or any other person caused by or
resulting from bursting, breakage, leakage, running, backing up, seepage or
overflow of water or sewage in any part of the Demised Premises or the
Shopping Center; from steam, snow or ice; or from any defect in or
negligence in the occupancy, construction, operation or use of the Demised
Premises, the Shopping Center or any machinery, apparatus or equipment
located therein. Tenant shall give prompt notice to Landlord in case of
fire or accidents in the Demised Premises. The foregoing indemnity
contained in Paragraph 12(a) and the waiver contained in this Paragraph
12(b) shall not apply to liability for bodily injury, death or property
damage occurring within the Demised Premises and caused by the negligence
or intentional misconduct of Landlord, its agents or employees (acting
within the scope of their employment by Landlord), to the extent that
liability for such occurrence is not coverable by the type of insurance
required to be maintained by Tenant pursuant to this Lease.
(c) Tenant shall at all times during the Lease Term maintain in full
force and effect the following insurance in standard form generally in use
in the Commonwealth of Virginia, with insurance companies licensed to do
business in said Commonwealth on an admitted basis, which have a financial
rating of at least A:XII as rated in the most recent edition of Best
Insurance Reports and which have been in business for over five (5) years:
(i) Comprehensive public liability insurance covering bodily
injury, death and property damage in the amount of at least One
Million and no/100 Dollars ($1,000,000.00) per occurrence, with an
aggregate limit of at least One Million and no/100 Dollars
($1,000,000.00). In addition, Tenant shall maintain an umbrella policy
of public liability insurance in the amount of at least Five Million
and no/100 Dollars ($5,000,000.00) per occurrence, with an aggregate
limit of at least Five Million and no/100 Dollars ($5,000,000.00).
(ii) Tenant further agrees that the insurance contained in
subsection (i) above, (1) shall not contain the "care, custody and
control" exclusion, or in the alternative, (2) it shall obtain
extended coverage fire legal liability insurance in the amount of at
least Fifty Thousand and no/100 Dollars ($50,000.00) per occurrence.
The insurance required by this Paragraph 12(c) shall: (i) name
Landlord and any holder of a first deed of trust encumbering the Demised
Premises as additional insureds, (ii) contain a contractual liability
endorsement; (iii) contain an endorsement requiring thirty (30) days'
written notice from the insurance company to all insureds prior to the
cancellation of the policy, of any change in coverage, scope or amount of
the policy; and (iv) contain an endorsement providing that no act or
omission of any insured shall invalidate the interest of any other insured,
or constitute a defense against the claims of such insured. Prior to the
commencement of Tenant's Work, and thereafter not less than thirty (30)
days prior to the expiration of any such policy, Tenant shall deliver to
Landlord copies of such policies or certificates evidencing the same,
together with satisfactory evidence of proof of payment of premiums.
(d) Tenant shall, at all times during the Lease Term, maintain
workmen's compensation insurance to comply with the applicable laws of the
Commonwealth of Virginia.
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(e) The insurance required by this Paragraph 12 may be included in
policies of insurance covering multiple locations, provided that: (i) in
all other respects, each such policy shall comply with the requirements of
this Paragraph 12; (ii) the policy shall specify, or the insuring party
shall furnish the other party with a written certificate from the insurer
specifying, (A) the maximum amount of the total insurance afforded by the
blanket policy to the Demised Premises or the Shopping Center, as the case
may be, and (B) any sublimits in the blanket policy applicable to the
Demised Premises or the Shopping Center, as the case may be, which amounts
shall not be less than the amounts required by this Paragraph 12; and (iii)
the protection afforded the insuring party under the blanket policy shall
be no less than that which would have been afforded under a separate policy
or policies relating only to the Demised Premises or the Shopping Center,
as the case may be.
(f) As used in this Paragraph 12, the term "Landlord" shall be deemed
to include any person or entity with which Landlord contracts to manage the
Shopping Center.
13. Property Insurance, Damage and Destruction
(a) Subject to the provisions of Paragraph 4, at all times during the
Lease Term, Landlord shall pay all premiums for and maintain in effect,
with a responsible insurance company or companies, policies of insurance
covering the building of which the Demised Premises constitute a part,
providing protection to the extent of not less than ninety percent (90%) of
the insurable value of said building, including Tenant's Work, against all
casualties included under standard insurance industry practices within the
classification "Fire and Extended Coverage, Vandalism and Malicious
Mischief" and including Sprinkler Leakage Insurance. At its option,
Landlord may elect to insure the building of which the Demised Premises
constitute a part against all insured casualties included under standard
insurance practices within the classification "Combined All Risk Fire and
Boiler", including flood and earthquake protection. Nothing in this
Paragraph 13(a) shall prevent the taking out of policies of blanket
insurance, which may cover real and/or personal property and improvements
in addition to the building of which the Demised Premises constitute a
part; provided, however, that in all other respects each such policy shall
comply with the other provisions of this Paragraph 13(a). Nothing herein
shall be construed to require Landlord to insure those items that Tenant is
obligated to insure pursuant to Paragraph 13(b) hereof. In order to assist
Landlord in deciding the amount of insurance which it will obtain for
Tenant's Work, Tenant shall furnish to Landlord, upon the completion of its
work, and from time to time thereafter, such evidence as the Landlord may
reasonably require as to the cost or value thereof. Landlord shall not be
bound by such information.
(b) At all times during the Lease Term, Tenant shall pay all premiums
for and maintain in effect, with insurance companies licensed to do
business in said Commonwealth on an admitted basis, which have a financial
rating of at least A:XII as rated in the most recent edition of Best
Insurance Reports and which have been in business for over five (5) years,
the following insurance policies:
(i) Insurance covering Tenant's trade fixtures, furniture,
inventory and equipment used in the Demised Premises providing
protection to the extent of the actual replacement costs thereof
against all casualties included under standard insurance industry
practices within the classification "Fire and Extended Coverage,
Vandalism and Malicious Mischief" including Sprinkler Leakage Coverage
and covering loss of income and extra expenses from such casualty.
(ii) Plate Glass Insurance covering the plate glass in the
Demised Premises.
(iii) Business Interruption Insurance for twelve (12) months.
The policies of insurance required by this Paragraph 13(b): (i) shall
name Landlord and any holder of a first deed of trust encumbering the
Demised Premises as additional insureds, (ii) contain an endorsement
requiring thirty (30) days' written notice from the insurance company to
all insureds prior to the cancellation of the policy or any change in the
coverage, scope or amount of the policy, and (iii) that Tenant shall be
solely responsible for the payment of all premiums under such policy and
that Landlord shall have no obligation for the payment thereof. Tenant will
furnish to Landlord, within thirty (30) days before Tenant opens for
business, and from time to time thereafter, copies of policies or
certificates of insurance evidencing coverages required by this Lease.
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(c) Tenant and Landlord, respectively, hereby release each other and
their respective employees, directors, agents or invitees from any and all
liability or responsibility to the other except if such loss may have been
occasioned by the negligence or willful acts of such other party, its
employees, directors, agents or invitees for all claims or any one claiming
by, through or under it or them by way of subrogation or otherwise for any
loss or damage to the extent Tenant or Landlord is required to maintain
insurance (or has otherwise agreed to self insure) pursuant to this
Paragraph 13, whether or not such insurance is in fact maintained. Tenant
and Landlord agree to notify their respective insurers of the release of
subrogation claims. If the foregoing release shall contravene any law with
respect to exculpatory agreements, the liability of the party in question
shall be deemed not released but shall be secondary to the other's insurer.
(d) If the Demised Premises shall be partially damaged by fire or
other casualty insured under Landlord's insurance policies, then upon
Landlord's receipt of the insurance proceeds, Landlord shall, except as
otherwise provided herein, repair and restore the same (exclusive of
Tenant's trade fixtures, decorations, signs and contents) substantially to
the condition thereof immediately prior to such damage or destruction,
limited, however, to the extent of the insurance proceeds received by
Landlord therefor. If (a) the Demised Premises is rendered wholly
untenantable, or (b) the Demised Premises is damaged in whole or in part as
a result of a risk which is not covered by Landlord's insurance policies or
(c) the Demised Premises is damaged in whole or in part during the last
three (3) years of the term (or of any renewal term) hereof, or (d) the
building of which the Demised Premises forms a part or all of the buildings
which then comprise the Shopping Center is or are damaged (whether or not
the Demised Premises is damaged) to such an extent that the Shopping Center
cannot in the sole judgment of Landlord be operated as an integral unit,
then or in any of such events, Landlord may elect either to repair the
damages as aforesaid, or to cancel this Lease by written notice of
cancellation given to Tenant within one hundred twenty (120) days after the
date of such occurrence, and thereupon this Lease shall cease and terminate
with the same force and effect as though the date set forth in the
Landlord's said notice were the date herein fixed for the expiration of the
term hereof and Tenant shall vacate and surrender the Demised Premises to
Landlord. Upon the termination of this Lease, as aforesaid, Tenant's
liability for the rents reserved hereunder shall cease as of the effective
date of the termination of this Lease, subject, however, to the provisions
for the prior abatement of rent hereinafter set forth. Unless this Lease is
terminated by Landlord, as aforesaid, this Lease shall remain in full force
and effect and the parties waive the provisions of any law to the contrary,
and Tenant shall repair, restore or replace Tenant's trade fixtures,
decorations, signs, and contents in the Demised Premises in a manner and to
at least a condition equal to that existing prior to their damage or
destruction and the proceeds of all insurance carried by Tenant on said
property shall be held in trust by Tenant for the purposes of such repair,
restoration or replacement. If by reason of such fire or other casualty the
Demised Premises is rendered wholly untenantable the Guaranteed Minimum
Rent shall be fully abated, or if only partially damaged such rent shall be
abated proportionately on a square footage basis as to that portion of the
Demised Premises rendered untenantable, in either event (unless Landlord
shall elect to terminate this Lease, as aforesaid) until fifteen (15) days
after notice by Landlord to Tenant that the Demised Premises have been
substantially repaired and restored or until Tenant's business operations
are restored in the entire Demised Premises, whichever shall occur sooner.
Tenant shall continue the operation of Tenant's business in the Demised
Premises or any part thereof not so damaged during any such period to the
extent reasonably practicable from the standpoint of prudent business
management and, except for such abatement of the Guaranteed Minimum Rent as
hereinabove set forth, nothing herein contained shall be construed to abate
Tenant's obligations for the payment of the Percentage Rent or any other
additional rents and charges reserved hereunder, except that the
computation of such Percentage Rent shall be based upon the revised
Guaranteed Minimum Rent as the same may be abated. If such damage or other
casualty shall be caused by the negligence of the Tenant or of Tenant's
subtenants, concessionaires, licensees, contractors or invitees or their
respective agents or employees, there shall be no abatement of rent. Except
for the abatement of the Guaranteed Minimum Rent hereinabove set forth,
Tenant shall not be entitled to and hereby waives all claims against
Landlord for any compensation or damage for loss of use of the whole or any
part of the Demised Premises and/or for any inconvenience or annoyance
occasioned by any such damage, destruction, repair or restoration. If the
Demised Premises are damaged or destroyed, and Landlord does not elect to
exercise its right to terminate this Lease, Landlord shall give Tenant
written notice within ninety (90) days after the date of such damage or
destruction as to the approximate length of time it shall take Landlord to
restore the Demised Premises, and if this estimate for repair or
restoration is greater than eighteen (18) months after such damage, Tenant
shall have the right to terminate this Lease, as of the date of such
damage, within thirty (30) days after receipt of such written notice from
Landlord by giving Landlord written notice of cancellation. If such repairs
are not completed within eighteen (18) months from the date of damage,
Tenant may terminate this Lease within thirty (30) days after the
expiration of said twelve (12) month period. In the event of such
cancellation, both parties shall be relieved of all
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obligations under this Lease saving and excepting those obligations
accruing before the date of such cancellation.
14. Ownership of Certain Property and Surrender of Premises
Upon the termination of this Lease, Tenant shall surrender to Landlord the
Demised Premises, including, without limitation, all buildings, apparatus and
fixtures (except signs, trade fixtures and furniture installed by Tenant) then
upon the Demised Premises, broom clean and in good condition and repair, and all
alterations, improvements, additions, machinery and equipment which may be made
or installed from time to time by either party hereto to, in, upon or about the
Demised Premises; and, upon such termination, such property shall be surrendered
to Landlord by Tenant without injury, damage or disturbance thereto or payment
therefor. The property to be surrendered shall include, but not be limited to,
all components of the heating and air-conditioning (including the portion
thereof outside the Demised Premises, if any), plumbing and electrical systems,
lighting fixtures and fluorescent tubes and bulbs, all dumbwaiters, conveyors
and all partitions (whether removable or otherwise). Tenant shall promptly
repair any damage to the Demised Premises resulting from the installation or
removal of any of the foregoing items.
15. Landlord's Entry, Easement for Pipes and Excavation
(a) Landlord's Entry. Landlord shall have the right to enter upon the
Demised Premises at all reasonable times during the Lease Term for the
purposes of inspection, maintenance, repair and alteration and to show the
same to prospective tenants or purchasers, provided that Landlord shall not
materially interfere with Tenant's operations in the Demised Premises.
(b) Easement for Pipes. Tenant shall permit Landlord to erect, use,
maintain and repair pipes, cables, conduits, plumbing, vents and wire in,
to and through the Demised Premises as often 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, provided, no such
use shall be visible from the sales area of the Demised Premises unless
essential, and such work shall be performed with a minimum of disruption to
Tenant and the business conducted at the Demised Premises.
(c) Excavation. If an excavation shall be made upon land adjacent to
the Demised 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 Demised Premises for the purpose of doing such
work as Landlord shall deem necessary to preserve the wall or the building
of which the Demised Premises form a part from injury or damage to support
the same by proper foundations, without any claim for damages or
indemnification against Landlord or diminution or abatement of any rent.
16. Default
(a) Each of the following shall constitute an Event of Default: (i)
Tenant's failure to make any payment of Guaranteed Minimum Rent, Percentage
Rent, additional rent or any other rent or sum of money becoming due under
this Lease after any such payment's due date; (ii) Tenant's failure to take
possession of the Demised Premises within thirty (30) days after Landlord
has delivered the Demised Premises to Tenant pursuant to Paragraph 5; (iii)
Tenant's violation or failure to perform or observe any other covenant or
condition within thirty (30) days after notice thereof from Landlord; or if
such violation or failure is remediable but is of such a nature that it
cannot be remedied within such thirty (30) day period, then for such longer
period as may reasonably be required provided that Tenant promptly
commences and diligently pursues such remedy to completion; (iv) Tenant's
abandonment or vacation of the Demised Premises; (v) an Event of Bankruptcy
as specified in Paragraph 17 with respect to Tenant, any general partner of
Tenant (a "General Partner") or any Guarantor; or (vi) Tenant's dissolution
or liquidation.
(b) If there shall be an Event of Default, including an Event of
Default prior to the Rent Commencement Date, then Landlord shall have the
right, at its sole option, to terminate this Lease. In addition, with or
without terminating this Lease, Landlord may re-enter, terminate Tenant's
right of possession and take possession of the Demised Premises. In the
event of an Event of Default due to Tenant's non-payment of Guaranteed
Minimum Rent, Percentage Rent, additional rent or any other charges due
hereunder, then Landlord shall give Tenant written notice of non-payment
and a ten (10) day opportunity to cure such Event of Default prior to
exercising its rights under this Paragraph 16. The provisions of this
Paragraph 16 shall operate as a notice
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to quit, any other notice to quit or of Landlord's intention to re-enter
the Demised Premises being hereby expressly waived. If necessary, Landlord
may proceed to recover possession of the Demised Premises under and by
virtue of the laws of the State in which the Shopping Center is located in,
or by such other proceedings, including re-entry and possession, as may be
applicable. If Landlord elects to terminate this Lease and/or elects to
terminate Tenant's right of possession, then everything contained in this
Lease to be done and performed by Landlord shall cease, without prejudice,
however, to Landlord's right to recover from Tenant all rent and other sums
accrued through the later of termination or Landlord's recovery of
possession. Whether or not this Lease and/or Tenant's right of possession
is terminated, Landlord shall use reasonable efforts to relet the Demised
Premises or any part thereof, however, nothing herein shall require
Landlord to lease the Demised Premises over other vacant space in the
Shopping Center, alone or together with other premises, for such rent and
upon such terms and conditions (which may include concessions or free rent
and alterations of the Demised Premises) as Landlord, in its sole
discretion, may determine, but Landlord shall not be liable for, nor shall
Tenant's obligations be diminished by reason of, Landlord's failure to
relet the Demised Premises or collect any rent due upon such reletting.
Whether or not this Lease is terminated, Tenant nevertheless shall remain
liable for any Guaranteed Minimum Rent, Percentage Rent, additional rent or
damages which may be due or sustained prior to such default, all costs,
fees and expenses (including without limitation reasonable attorneys' fees,
brokerage fees and expenses incurred in reletting and placing the Demised
Premises in first-class rentable condition, including improvements and
tenant finish necessitated to obtain the new tenant) incurred by Landlord
in pursuit of its remedies and in renting the Demised Premises to others
from time to time. Tenant shall also be liable for additional damages which
at Landlord's election shall be either:
(i) an amount equal to the Guaranteed Minimum Rent and additional
rent which would have become due during the remainder of the Lease
Term, less the amount of rent, if any, which Landlord receives during
such period from others to whom the Demised Premises may be rented
(other than additional rent payable as a result of any failure of such
other person to perform any of its obligations), which damages shall
be computed and payable in monthly installments, in advance, on the
first day of each calendar month following Tenant's default and
continuing until the date on which the Lease Term would have expired
but for Tenant's default. Separate suits may be brought to collect any
such damages for any month(s), and such suit shall not in any manner
prejudice Landlord's right to collect any such damages for any
subsequent month(s), or Landlord may defer any such sums until after
the expiration of the Lease Term, in which event the cause of action
shall be deemed not to have accrued until the expiration of the Lease
Term; or
(ii) an amount equal to the present value (as of the date of
Tenant's default) of Guaranteed Minimum Rent and Percentage Rent which
would have become due during the remainder of the Lease Term, which
damages shall be payable to Landlord in one lump sum on demand. For
the purpose of this Paragraph 16(b), present value shall be computed
by discounting at a rate equal to one (1) whole percentage point above
the discount rate then in effect at the Federal Reserve Bank of New
York. Tenant waives any right of redemption, re-entry or restoration
of the operation of this Lease under any present or future law,
including any such right which Tenant would otherwise have if Tenant
shall be dispossessed for any cause.
(c) Landlord's rights and remedies set forth in this Lease are
cumulative and in addition to Landlord's other rights and remedies at law
or in equity, including those available as a result of any anticipatory
breach of this Lease. Landlord's exercise of any such right or remedy shall
not prevent the concurrent or subsequent exercise of any other right or
remedy. Landlord's delay or failure to exercise or enforce any of
Landlord's rights or remedies or Tenant's obligations shall not constitute
a waiver of any such rights, remedies or obligations. Landlord shall not be
deemed to have waived any default unless such waiver expressly is set forth
in an instrument signed by Landlord. If Landlord waives in writing any
default, then such waiver shall not be construed as a waiver of any
covenant or condition set forth in this Lease except as to the specific
circumstances described in such written waiver. Neither Tenant's payment of
a lesser amount than the sum due hereunder nor Tenant's endorsement or
statement on any check or letter accompanying such payment shall be deemed
an accord and satisfaction, and Landlord may accept the same without
prejudice to Landlord's right to recover the balance of such sum or to
pursue any other remedy available to Landlord. Landlord's re-entry and
acceptance of keys shall not be considered an acceptance of a surrender of
this Lease.
(d) If more than one natural person and/or entity shall execute this
Lease as Tenant, then the liability of each such person or entity shall be
joint and several. Similarly, if Tenant is a
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general partnership or other entity the partners or members of which are
subject to personal liability, then the liability of each such partner or
member shall be joint and several.
(e) If Tenant fails to make any payment to any third party or to do
any act herein required to be made or done by Tenant, then Landlord may,
but shall not be required to, make such payment or do such act. Landlord's
taking such action shall not be considered a cure of such failure by Tenant
or prevent Landlord from pursuing any remedy to which it is otherwise
entitled in connection with such failure. If Landlord elects to make such
payment or do such act, then all expenses incurred, plus interest thereon
at the lesser of: (i) a rate per annum (the "Default Rate") which is five
(5) whole percentage points higher than the Prime Rate as published in the
Wall Street Journal or if such rate is no longer published then the rate
which is five (5) whole percentage points in excess of the Prime Rate of
American Security Bank (Washington, D.C.), or (ii) the highest non-usurious
rate permitted under the laws of the jurisdiction where the Shopping Center
is located, from the date incurred to the date of payment thereof by
Tenant, shall constitute additional rent.
(f) In order to enable Tenant to finance or refinance the purchase of
trade fixtures, equipment and inventory, Landlord agrees to subordinate any
lien which it may have on Tenant's trade fixtures, equipment and inventory
to the rights of any bonafide mortgagee or secured creditor of Tenant for
the purpose of financing said trade fixtures, equipment and inventory for
use in the Demised Premises. Landlord will permit any lender to have full
rights to the collateral listed above.
17. Bankruptcy.
The following shall be Events of Bankruptcy under this Lease: (i) Tenant, a
Guarantor or a General Partner becoming insolvent, as that term is defined in
Title 11 of the United States Code (the "Bankruptcy Code"), or under the
insolvency laws of any state (the "Insolvency Laws"); (ii) appointment of a
receiver or custodian for any property of Tenant, a Guarantor or a General
Partner, or the institution of a foreclosure or attachment action upon any
property of Tenant, a Guarantor or a General Partner; (iii) filing of a
voluntary petition by Tenant, a Guarantor or a General Partner under the
provisions of the Bankruptcy Code or Insolvency Laws; (iv) filing of an
involuntary petition against Tenant, a Guarantor or a General Partner as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which either (x) is
not dismissed within sixty (60) days of filing, or (y) results in the issuance
of an order for relief against the debtor; or (v) Tenant, a Guarantor or a
General Partner making or consenting to an assignment for the benefit of
creditors or a composition of creditors.
18. Remedies Cumulative - Nonwaiver
No remedy herein or otherwise conferred upon or reserved to Landlord or
Tenant shall be considered exclusive of any other remedy, but the same shall be
distinct, separate and cumulative and
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shall be in addition to every other remedy given under this Lease, or now or
hereafter existing at law or in equity or by statute; and every power and
remedy given by this Lease to Landlord or Tenant may be exercised from time to
time as often as occasion may arise, or as may be deemed expedient. No delay or
omission of Landlord or Tenant to exercise any right or power arising from any
default on the part of the other shall impair any such right or power, or shall
be construed to be a waiver of any such default or an acquiescence thereto. In
particular, the receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach and no
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing and signed by Landlord.
19. Eminent Domain
If any substantial part of the Demised Premises or more than thirty percent
(30%) of the total Shopping Center is taken under the power of eminent domain
(including any conveyance made in lieu thereof), and such taking makes the
operation of Tenant's business on the Demised Premises impractical, then Tenant
shall have the right to terminate this Lease by giving Landlord written notice
of such termination within thirty (30) days after such taking; and if Tenant
does not so elect to terminate this Lease, Landlord, at its option, may either
terminate this Lease or apply the proceeds of such condemnation to repair and
restore the Demised Premises to tenantable condition, in which case the rental
to be paid by Tenant hereunder shall be proportionately and equitably reduced.
All compensation awarded for any taking (or the proceeds of private sale in
lieu thereof) whether for the whole or a part of the Demised Premises, shall be
the property of Landlord, whether such award is compensation for damages to
Landlord's or Tenant's interest in the Demised Premises, and Tenant hereby
assigns all of its interest in any such award to Landlord; provided, however,
Landlord shall have no interest in any award made to Tenant for relocation
expenses or for the taking of Tenant's trade fixtures and other property within
the Demised Premises (which Tenant is authorized to remove at termination
pursuant to Paragraph 14) if a separate award of such items is made to Tenant,
but any such award to Tenant shall be subject to the prior rights of the first
mortgagee.
20. Financial Information; Statement of Tenant; Amendment of Lease
(a) During the Lease Term, Tenant shall, within fifteen (15) days of
written request by Landlord, deliver to Landlord any and all of the
following:
(i) Such financial information concerning Tenant and Tenant's
business operations (and the Guarantor of this Lease, if the Lease is
guaranteed) as may be reasonably requested by Landlord or any
mortgagee or prospective mortgagee or purchaser of the Shopping
Center.
(ii) An executed and acknowledged instrument amending this Lease
in such respects as may be required by any holder or prospective
holder of a mortgage or deed of trust on the Demised Premises,
provided that any such amendment shall not affect the Lease Term or
the rent or other charges to be paid by Tenant under this Lease.
(b) Any financial information delivered pursuant to Paragraph 20(a)(i)
and any amendment delivered pursuant to Paragraph 20(a)(ii) may be relied
upon by any mortgagee, prospective mortgagee or prospective purchaser of
the Shopping Center; provided, however, that any such financial information
and any such amendment shall be utilized only for bona fide business
reasons related to such mortgage, purchase and/or obtaining thereof, except
where the contrary is required by law. Landlord agrees to keep such
information confidential, except as may be contemplated in this Paragraph
20 and except as may be required by law.
21. Assignment, Subletting and Hypothecation of Lease
(a) Except as expressly permitted in Paragraph 21(c), Tenant shall not
voluntarily or by operation of law, assign, transfer, mortgage or otherwise
encumber all or any part of Tenant's
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interest in this Lease or in the Demised Premises or sublet the whole or
any part of the Demised Premises without first obtaining the prior written
consent of Landlord, which consent shall be at the uncontrolled discretion
of Landlord. The consent by Landlord to any assignment or subletting shall
not constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. Receipt by Landlord of rent due hereunder from
any party other than Tenant shall not be deemed to act as a consent to any
such assignment or subletting, nor relieve Tenant of its obligation to pay
the rent provided in this Lease for the full Lease Term.
In no event shall an assignment or sublease be permitted to any entity
which is (i) an employee benefit plan as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, (ii) an entity
whose assets constitute plan assets of one or more such plans within the
meaning of 29 C.F.R. Section 2510.3-101, or (iii) subject to state statutes
regulating investments of an fiduciary obligations with respect to
governmental plans.
(b) Except for assignments or subleases that are allowed without
Landlord's consent, if at any time Tenant wants to assign, sublet or
otherwise transfer all or part of the Demised Premises or this Lease, then
Tenant shall give written notice to Landlord ("Sublease Proposal Notice")
of the area proposed to be assigned or sublet (the "Proposed Sublet Space")
and the term for which Tenant desires to sublet the Proposed Sublet Space
and such other information as Landlord shall request. Landlord shall have
the right in its sole and absolute discretion to terminate this Lease with
respect to the Proposed Sublet Space, however Tenant may void such
termination by withdrawing the sublease proposal. Landlord shall exercise
such right by sending Tenant written notice within forty-five (45) days
after Landlord's receipt of the Sublease Proposal Notice. If the Proposed
Sublet Space does not constitute the entire Demised Premises and Landlord
elects to terminate this Lease with respect to the Proposed Sublet Space,
then (i) Tenant shall tender the Proposed Sublet Space to Landlord on a
date specified in Landlord's notice (not more than sixty (60) days after
the date of such notice) as if such specified date had been originally set
forth in this Lease as the expiration date of the Lease Term with respect
to the Proposed Sublet Space, and (ii) as to all portions of the Demised
Premises other than the Proposed Sublet Space, this Lease shall remain in
full force and effect except that the Guaranteed Minimum Rent, Percentage
Rent and additional rent shall be reduced pro rata. Tenant shall pay all
expenses of construction required to permit the operation of the Proposed
Sublet Space separate from the balance of the Demised Premises. If the
Proposed Sublet Space constitutes the entire Demised Premises and Landlord
elects to terminate this Lease, then (i) Tenant shall tender the Demised
Premises to Landlord on a date specified in Landlord's notice (not more
than sixty (60) days after the date of such notice), and (ii) the Lease
Term shall terminate on such specified date.
(c) In the event Tenant is a corporation and a subsidiary of another
corporation, it may, without Landlord's consent, assign this Lease to, or
merge with, its parent corporation or a subsidiary of Tenant or Tenant's
parent corporation. Any other merger, or any dissolution, consolidation or
other reorganization of Tenant or the sale or other transfer (except as the
result of death) of more than fifty percent (50%) of the corporate stock of
Tenant or fifty percent (50%) of its voting stock or fifty percent (50%) of
the ownership interest of Tenant shall constitute an assignment of this
Lease for all purposes of this Paragraph 21 and is prohibited without the
written consent of Landlord. Landlord agrees not to unreasonably withhold
its consent to any assignment resulting from a merger, consolidation, sale
or other transfer of assets having like effect which is otherwise
prohibited; provided that Landlord promptly receives all information
reasonably requested by Landlord relating thereto; and provided further
that neither the reputation, experience, net worth nor financial condition
of any such assignee is less than that of Tenant on the Rent Commencement
Date. Notwithstanding the foregoing, if Tenant shall become a publicly held
corporation, the sale of Tenant's stock pursuant to an initial public
offering shall not require Landlord's approval so long as Tenant remains
unchanged as an operating entity. Additionally, if Tenant's stock is listed
and traded on a national securities exchange or in the over-the-counter
market, the sale of Tenant's stock shall not require Landlord's approval as
long as Tenant remains unchanged as an operating entity.
(d) In the event Landlord consents to any transfer of Tenant's
interest in this Lease, or if Landlord's consent is not required, then the
term "Tenant" shall thereafter be deemed to include, without further
reference, the party to whom such interest is transferred, such as any
subtenant, assignee, concessionaire or licensee. If this Lease is assigned
or if the Demised Premises or any part thereof are occupied by anybody
other than Tenant, without Landlord's prior written consent, Landlord may,
nevertheless, collect rent from the alleged assignee or occupant and apply
the net amount collected to rent herein reserved; but such action shall not
constitute a waiver of this Paragraph 21. Notwithstanding any assignment or
sublease permitted by this Lease or consented to by Landlord, Tenant and
any Guarantor of this Lease shall remain fully liable and shall not be
released from performing any of the terms of this Lease, even if this Lease
is amended; but,
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in the case of an amendment without Tenant's written consent, after
assignment, Tenant's obligations shall be limited to those existing at the
time of assignment. If the Lease is assigned and Tenant remains liable as
set out in the preceding sentence, Landlord agrees to provide Tenant with a
copy of any notices of default.
(e) Any concession or license granted for any part of the sales area
of the Demised Premises shall be considered a sublease for the purposes of
this Paragraph 21.
(f) In the event Tenant assigns this Lease, or sublets all or
substantially all of the Demised Premises, and the rent and other amounts
payable by the assignee or sublessee exceed the rent and other amounts
payable by Tenant under this Lease, then the excess shall be paid to
Landlord monthly in arrears, on or before the first (1st) day of each
calendar month, as additional rent.
22. Promotion of the Shopping Center
(a) Marketing Fund. Landlord may, in Landlord's sole discretion,
establish a Marketing Fund ("Marketing Fund") and secure therewith
professional advertising and sales promotional services and activities for
the benefit of the Shopping Center or the Integrated Shopping Center. In
connection with the Marketing Fund, Landlord agrees to secure, in
Landlord's sole discretion, promotion and secretarial services and, using
funds from the Marketing Fund, (i) to pay the salaries and expenses for all
personnel and (ii) to pay for the rental, utilities, telephone and space
used for securing the services of such Marketing Fund. Tenant agrees to pay
Landlord an amount as specified in Paragraph 1(k)(i) as a Marketing Fund
contribution. Any partial calendar year shall be prorated on a three
hundred sixty-five (365) day basis. Tenant agrees that at the end of every
calendar year during the Lease Term the annual Marketing Fund fee described
in Paragraph 1(k)(i) shall be increased over the fee payable in such
calendar year in proportion to the increase in the cost-of-living
(determined as provided below) between the beginning date of such calendar
year and the ending date of such calendar year, such increase not to exceed
five percent (5%) per year. Such increased fee shall be payable during the
next calendar year and shall be the base amount used to calculate the next
increase in such fee. The base date applicable to calculating the increase
at the end of the first calendar year shall be January 1 of the year in
which the Rent Commencement Date occurs. The base date for each subsequent
calendar year after the first calendar year shall be January 1 of such
year.
The cost-of-living on each such date shall be measured by the Consumer
Price Index For All Urban Consumers specified for all items, U.S. City
Average (1982-84 = 100) published on the date nearest to each such date by
the Bureau of Labor Statistics of the United States Department of Labor;
or, if such index is not then in use, by the index most nearly comparable
thereto, as selected by Landlord.
(b) Advertising Fund. Landlord may, in Landlord's sole discretion,
establish an Advertising Fund ("Advertising Fund") for the benefit of the
Shopping Center or the Integrated Shopping Center. Tenant agrees to pay
Landlord an amount as specified in Paragraph 1(k)(ii) as a Advertising Fund
contribution. Any partial calendar year shall be prorated on a three
hundred sixty-five (365) day basis. Tenant agrees that at the end of every
calendar year during the Lease Term the annual Advertising Fund fee
described in Paragraph 1(k)(ii) shall be increased over the fee payable in
such calendar year in proportion to the increase in the cost-of-living
{determined as provided in Paragraph 22(a) above} between the beginning
date of such calendar year and the ending date of such calendar year, such
increase not to exceed five percent (5%) per year. Such increased fee shall
be payable during the next calendar year and shall be the base amount used
to calculate the next increase in such fee. The base date applicable to
calculating the increase at the end of the first calendar year shall be
January 1 of the year in which the Rent Commencement Date occurs. The base
date for each subsequent calendar year after the first calendar year shall
be January 1 of such year.
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(c) Merchant's Association. Until such time as Landlord shall elect to
provide the Marketing Fund service set forth in Paragraph 22(a) above or at
such time or times as Landlord shall not elect to provide the Marketing
Fund, Tenant agrees to become and remain a member of the Merchant's
Association for the entire Lease Term if established. Tenant agrees to pay
as dues to said Merchant's Association the amounts set forth in Paragraph
22(a) above as if Landlord had established the Marketing Fund.
(d) Payments. The payments required to be made pursuant to this
Paragraph 22 shall be paid to Landlord at the address stated in Paragraph
4(f) by Tenant in monthly installments in advance on the first day of each
month and shall be treated as additional rent. The failure of any other
tenant in the Shopping Center to contribute to the Merchant's Association,
the Marketing Fund or the Advertising Fund, shall not in any way release
Tenant from Tenant's obligations hereunder, such obligations being separate
and independent covenants of this Lease. Landlord agrees to notify Tenant
annually of any increases in the charges set out in this Paragraph 22 and
Tenant shall not be required to pay any increases until it has received
such notice(s), however it is understood and agreed that such increased
charge(s) shall be retroactive to the date(s) provided herein.
23. Notices
All notices provided for in this Lease shall be in writing and shall be
deemed to be given when sent by prepaid registered or certified mail, return
receipt requested, addressed to the parties at the notice addresses set out in
Paragraph 1(p)(i) for Tenant and Paragraph 1(q)(i) for Landlord. Either party
may, from time to time, by ten (10) days prior written notice given as provided
above, designate a different address to which notices to it shall be sent.
24. Holding Over
If Tenant remains in possession of the Demised Premises or any part thereof
after the expiration of the Lease Term, Tenant shall be only a tenant at will at
a rent equal to one hundred fifty percent (150%) of the Guaranteed Minimum Rent
in effect immediately prior to the expiration of the Lease Term for the first
sixty (60) days of Tenant's holdover and thereafter at two hundred percent
(200%), together with other charges set forth in this Lease, and there shall be
no renewal of this Lease or exercise of an option by operation of law.
Notwithstanding anything contained herein to the contrary, the Guaranteed
Minimum Rent set out hereunder shall not be increased by virtue of Tenant's
holding over for the first sixty (60) days beyond the expiration of the Lease
Term, provided that the parties hereto are proceeding in good faith to negotiate
a renewal lease. It is understood and agreed, however, that when such renewal
lease is executed by both parties, all of its terms and provisions shall be
retroactive to the day following the date of the expiration of this Lease.
25. Subordination
Landlord and Tenant agree that this Lease and the interest of the Tenant
herein be and the same hereby is made subject and subordinate at all times to a
certain Multi-Party Development and Operating Agreement entered into between
Landlord and various Major Stores adjoining the Shopping Center affecting the
Shopping Center of which the Demised Premises forms a part, which agreement or a
short form thereof has been recorded in the official records of Henrico County,
Virginia, and to any future amendments or modifications thereof and/or to any
additional development and operating agreements which may hereafter be entered
into between Landlord and the aforementioned Major Stores and/or any additional
or different department stores. Landlord and Tenant further agree that this
Lease be and the same hereby is made subject and subordinate at all times to all
covenants, restrictions, easements and encumbrances now or hereafter affecting
the fee and/or leasehold title of the Shopping Center property and the adjoining
properties and to all ground and underlying leases, and to any first mortgages
in any
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amounts, and all advances thereon which may now or hereafter be placed
against or affect any or all of the land and/or the Demised Premises and/or any
or all of the buildings and improvements now or at any time hereafter
constituting a part of the Shopping Center, and to all renewals, modifications,
consolidations, participations, replacements and extensions thereof. The term
"mortgages" as used herein shall be deemed to include trust indentures and deeds
of trust. The aforesaid provisions shall be self operative and no further
instrument of subordination shall be necessary unless required by any such
ground or underlying landlords or first mortgagees. Should Landlord or any
ground or underlying landlords or first mortgagees desire confirmation of such
subordination, then Tenant within ten (10) days following Landlord's written
request therefor agrees to execute and deliver, without charge, any and all
documents (in form acceptable to Landlord and such ground or underlying
landlords or first mortgagees) subordinating this Lease, or a part thereof, and
the Tenant's rights hereunder. Should any such ground or underlying landlords or
any first mortgagees request that this Lease, or a part thereof, be made
superior, rather than subordinate, to any such ground or underlying lease and/or
first mortgage, then Tenant, within ten (10) days following Landlord's written
request therefor, agrees to execute and deliver, without charge, any and all
documents (in form acceptable to Landlord and such ground or underlying
landlords or first mortgagees) effectuating such priority.
26. Transfer of Landlord's Interest
In the event of the sale, assignment or transfer by Landlord of its
interest in the Shopping Center or in this Lease (other than a collateral
assignment to secure a debt of Landlord) to a successor in interest who
expressly assumes the obligations of Landlord under this Lease, Landlord shall
thereupon be released or discharged from all of its covenants and obligations
under this Lease, except such obligations as shall have accrued prior to any
such sale, assignment or transfer; and Tenant agrees to look solely to such
successor in interest of Landlord for performance of such obligations. Any
securities given by Tenant to Landlord to secure the performance of Tenant's
obligations under this Lease may be assigned by Landlord to such successor in
interest of Landlord; and, upon acknowledgement by such successor of receipt of
such security and its express assumption of the obligations to account to Tenant
for such security in accordance with the terms of this Lease, Landlord shall
thereby be discharged of any further obligation relating thereto. Landlord's
assignment of this Lease or of any or all of its rights herein shall in no
manner affect Tenant's obligations hereunder. Tenant shall thereafter attorn and
look to such assignee as Landlord, provided Tenant has first received written
notice of such assignment of Landlord's interest.
27. Warranty
Landlord warrants that it has full right and authority to lease the Demised
Premises upon the terms and conditions set forth in this Lease; and that Tenant
shall peacefully and quietly hold and enjoy the Demised Premises for the full
Lease Term so long as it does not default in the performance of any of its
covenants.
Tenant hereby warrants that it has full right, power and authority to enter
into this Lease upon the terms and conditions herein set forth. If Tenant signs
as a corporation, each of the persons executing this Lease on behalf of Tenant
does hereby covenant and warrant that Tenant is a duly authorized and existing
corporation, qualified to do business in the State in which the Shopping Center
is located, that the corporation has full right and authority to enter into this
Lease, and that each and both of the persons signing on behalf of the
corporation were authorized to do so.
28. Short Form Lease
This Lease shall not be recorded, however, upon request by either Landlord
or Tenant, upon the commencement of the Lease Term, the parties hereto shall
execute a memorandum or short form lease agreement in the form attached hereto
as Exhibit G, specifying the commencement and termination dates of the Lease
Term and including any other provisions hereof (exclusive of provisions dealing
with monetary terms) as either party may desire to incorporate herein.
29. Estoppel Certificate
Within ten (10) days after request therefor by Landlord or any mortgagee or
trustee under a mortgage or deed of trust covering the Demised Premises, or if,
upon any sale, assignment or other transfer of the Demised Premises by Landlord,
an estoppel certificate shall be required from Tenant, Tenant shall deliver in
recordable form the estoppel certificate attached hereto as Exhibit H to any
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proposed mortgagee or other transferee, or to Landlord, certifying those facts
contained therein that are then true with respect to this Lease and specifying
with particularity any of such facts which are not then true with respect to
this Lease.
30. Mechanics' Liens
Tenant covenants and agrees to do all things necessary to prevent the
filing of any mechanics' or other liens against Tenant's interest in this Lease
or in the Demised Premises by reason of work, labor, services or materials
supplied or claimed to have been supplied to Tenant, or anyone holding the
Demised Premises, or any part thereof, through or under Tenant. If any such lien
shall at any time be filed against Tenant's interest in the Demised Premises,
Tenant shall either cause the same to be discharged of record within twenty (20)
days after the date of filing of the same, or, if Tenant, in Tenant's sole
discretion and in good faith, determines that such lien should be contested,
shall furnish such security as may be necessary or required to prevent any
foreclosure proceedings against Tenant's interest in the Demised Premises during
the pendency of such contest. If Tenant shall fail to discharge such lien within
such period or fails to furnish such security, then, in addition to any other
right or remedy of Landlord resulting from Tenant's default, Landlord may, but
shall not be obligated to, discharge the lien either by paying the amount
claimed to be due or by procuring the discharge of such lien by giving security
or in such other manner as may be prescribed by law and Tenant shall, within ten
(10) days after written demand by Landlord, reimburse Landlord for all of its
costs and expenses arising in connection with such liens (including reasonable
attorneys' fees). Nothing contained in this Paragraph 30 shall imply any consent
or agreement on the part of Landlord to subject Landlord's estate to liability
under any mechanics' or other lien law.
31. Force Majeure
In the event Landlord or Tenant shall be delayed, hindered or prevented
from the performance of any act required hereunder, by reason of governmental
restrictions, scarcity of labor or materials, strikes, fire, or any other
reasons beyond its control, the performance of such act shall be excused for the
period of delay, and the period for the performance of any such act shall be
extended for the period necessary to complete performance after the end of the
period of such delay. Notwithstanding the preceding sentence, the provisions of
this Paragraph 31 shall not be applicable to Tenant's obligations to pay rent or
any other sums, monies, costs, charges or expenses required to be paid by Tenant
subsequent to the Rent Commencement Date.
32. Limitation of Liability
Notwithstanding anything contained in this Lease to the contrary, Tenant
agrees that it shall look solely to the equity and property of the Landlord in
the land and buildings comprising the Shopping Center for the collection of any
judgment (or other judicial process) requiring the payment of money by Landlord
for any default or breach by Landlord of any of its obligations under this
Lease, subject, however, to the prior rights of any ground or underlying
landlord or the holder of any mortgage covering the Shopping Center or of
Landlord's interest therein. No other assets of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claim. This provision shall not be deemed, construed or interpreted to be or
constitute an agreement, express or implied, between Landlord and Tenant that
Landlord's interest hereunder and in the Shopping Center shall be subject to
impressment of an equitable lien or otherwise.
33. Real Estate Brokers
Tenant represents that Tenant has not dealt with any real estate broker,
salesperson or finder in connection with this Lease, other than Faison &
Associates, Inc. Tenant agrees to indemnify and hold harmless Landlord from and
against any and all liabilities and claims for commissions and fees arising out
of a breach of the foregoing representation.
34. Accord and Satisfaction
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of rent or other charges due under this Lease shall be
deemed to be other than on account of the amount due, and no endorsement or
statement on any check or any letter accompanying any check or payment of rent
or other charges shall be deemed an accord and satisfaction, and Landlord may
accept such check
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or payment without prejudice to Landlord's right to recover the balance of such
installment or payment of rent or other charge or pursue any other remedies
available to Landlord. No receipt of money by Landlord from Tenant after the
termination of this Lease or Tenant's right of possession of the Demised
Premises shall reinstate, continue or extend the Lease Term.
35. Nature and Extent of Agreement
This Lease contains the complete agreement of the parties regarding the
terms and conditions of the lease of the Demised Premises, and there are no oral
or written conditions, terms, understandings or other agreements pertaining
thereto which have not been incorporated herein. This Lease may not be modified,
changed or amended, in whole or in part other than by an agreement in writing
duly signed by both parties hereto. This instrument creates only the
relationship of landlord and tenant between the parties hereto as to the Demised
Premises; and nothing in this Lease shall in any way be construed to impose upon
either party hereto any obligations or restrictions not herein expressly set
forth. The laws of the Commonwealth of Virginia shall govern the validity,
interpretation, performance and enforcement of this Lease.
36. Binding Effect
This Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
37. ERISA Representation
Tenant hereby represents to Landlord that (a) Tenant is not an employee
benefit plan as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended, (b) the assets of Tenant do not constitute
plan assets of one or more such plans within the meaning of 29 C.F.R. Section
2510.3-101 and (c) Tenant is not subject to state statutes regulating
investments of and fiduciary obligations with respect to governmental plans.
38. Waiver of Jury Trial.
Landlord, Tenant, all Guarantors and General Partners 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 Demised Premises, and/or any
claim of injury or damage. Tenant consents to service of process and any
pleading relating to any such action at the Demised Premises; provided, however,
that nothing herein shall be construed as requiring such service at the Demised
Premises. Landlord, Tenant, all Guarantors and all General partners of Tenant
waive any objection to the venue of any action filed in any court situated in
the jurisdiction in which the Building is located and waive any right under the
doctrine of forum non conveniens or otherwise, to transfer any such action filed
in any such court to any other court.
39. Attorney's Fees.
If as a result of any breach or default in the performance of any of the
provisions of this Lease, Landlord uses the services of an attorney in order to
secure compliance with such provisions or recover damages therefor, or to
terminate this Lease or evict Tenant, Tenant shall reimburse Landlord upon
demand for any and all attorneys' fees and expenses so incurred by Landlord,
provided that if Tenant shall be the prevailing party in any legal action
brought by Landlord against Tenant, upon rendering of a final non-appealable
judgment, Tenant shall be entitled to recover for the fees of its attorneys in
such amount as the court may adjudge reasonable.
40. Captions.
Paragraph, article and section headings are used for convenience and shall
not be considered when construing this Lease.
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41. Examination of Lease.
Submission of this Lease for examination or signature by Tenant shall not
constitute reservation of or option for lease, and the same shall not be
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
42. Survival.
Tenant's liabilities existing as of the expiration or earlier termination
of the Lease Term shall survive such expiration or earlier termination.
43. Relocation and Redevelopment of Shopping Center
(a) It is expressly understood and agreed between Landlord and Tenant
herein that in the event of any redevelopment of the Shopping Center which
would increase the size of the interior Common Areas of the existing
Shopping Center, would add additional improvements so that the Floor Area
of the Shopping Center is increased, would change or relocate the Food Park
Area, or would add a Major Store, Landlord shall have the right, at its
sole option, to require Tenant to relocate to another space in the Food
Park Area (or a new Food Park Area) in the Shopping Center. Landlord may
only relocate Tenant one (1) time during the Lease Term. Landlord shall
serve upon Tenant a written notice of relocation specifying the date on
which such relocation is to take place, such date to be at least sixty (60)
days from the date on which the notice of relocation is mailed or delivered
to Tenant. Tenant shall then have the right to relocate to a mutually
agreeable space suitable for the operation of Tenant's business. If, in the
reasonable opinion of the Tenant, a suitable location does not become
available within such sixty (60) day period, Tenant shall have the right at
its sole option, to cancel this Lease and all of the terms, covenants,
conditions and agreements herein contained shall become null and void and
of no further force and effect as of the date on which Tenant would have
been required to relocate, as set forth in Landlord's written notice.
(b) If in Tenant's reasonable opinion a suitable location is available
and Tenant relocates to such agreed upon location, all rent and other
charges under this Lease will abate during the period, if any, that Tenant
has permanently closed the Demised Premises for business until the earlier
to occur of: (i) the date on which Tenant actually opens its new premises
for business; or (ii) the date ninety (90) days following the date on which
Landlord delivers the new premises to Tenant. Anything herein to the
contrary notwithstanding, there shall be no abatement in rent or any other
charges hereunder unless relocation of Tenant is made at Landlord's
request.
(c) In the event of relocation, Landlord will reimburse Tenant for the
unamortized cost of Tenant improvements less any allowance given by
Landlord. Tenant shall provide Landlord receipts and cancelled checks for
all sums expended by Tenant for Tenant improvements so that Landlord may
determine such costs. Landlord shall not be obligated to pay Tenant for any
costs not so evidenced. The unamortized cost shall be computed by using
straight line depreciation with the life of improvements being the primary
term of the Lease.
(d) Tenant shall allow Landlord or Landlord's agents access to the
Demised Premises for construction of such structural portions as may be
required to reinforce or install columns or other building components as
may be necessary for future mall development and/or enclosure. However,
Landlord shall, following such construction and at Landlord's expense,
return the Demised Premises, as nearly as possible, to the condition
existing prior to said construction.
44. Food Park Tenant
In the event Tenant engages in the preparation of food or baked goods,
Tenant agrees, at Tenant's own cost and expense: (i) to install dry chemical
extinguishing devices (such as Ansul) approved by the local fire insurance
rating organization and Landlord's insurance carriers, and to keep such devices
in good working order and repair and regularly serviced under a maintenance
agreement as may be required by Landlord or by such fire insurance rating
organization or carriers; (ii) to keep and maintain all exhaust ducts and
filters in a clean condition; (iii) to place and store Tenant's garbage and
refuse in containers which shall be kept, in a self-contained refrigerated area
within the Demised Premises set aside for the storage of garbage and refuse;
(iv) to install within or outside the Demised Premises, as may be required by
governing codes, a grease trap and all lines leading thereto of a pattern and
make approved in writing
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by Landlord, and to keep and maintain the same in a clean and sanitary
condition and in good working order and repair and at no less than three (3)
month intervals cause such trap to be cleaned and lines to be routed; and (v) to
install within Tenant's exhaust system for the kitchen or any other food
preparation or cooking area, a deodorizing system acceptable to Landlord of a
type similar or equal to Roto Clone as manufactured by American Air Filter (the
purpose of which is to eliminate odors emanating from the Demised Premises) and
to keep and maintain the same in a clean and sanitary condition and in good
working order and repair. In the event Tenant engages in the use, sale or
storing of inflammable or combustible materials, Tenant agrees to install and
maintain similar chemical extinguishing devices referred to in subparagraph (i)
hereof. In the event gas is used in the Demised Premises, Tenant agrees to
install a proper gas cut-off valve. If Tenant shall fail to install any such
devices referred to in this Paragraph 44 and/or to subscribe to the servicing
thereof, Landlord shall have the right to enter upon the Demised Premises to
make such necessary installations and charge the cost of such installations
and/or the servicing thereof to Tenant, as additional rent hereunder. In
addition, Tenant agrees to abide by the provisions of the Food Park Addendum
attached hereto.
46. Surety Agreement
Attached hereto is a Surety Agreement executed by Boston Restaurant
Associates, Inc.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal as of the day and year first above written.
LANDLORD:
ONE FEDERAL STREET JOINT VENTURE
By: The Prudential Insurance
Company of America,
general partner
By: ______________________________
Vice President
TENANT:
ATTEST: PIZZERIA REGINA OF VIRGINIA, INC.
____________________________ By: __________________________
Name: ______________________ Name: _______________________
Title: ___________ Secretary Title: __________________ President
(CORPORATE SEAL)
g:\regency\regina3.lse
September 8, 1997
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FOOD PARK ADDENDUM
Anything contained in this Lease, as the same may have been heretofore
modified or amended (the "Printed Lease"), notwithstanding, to and of which this
Addendum is attached and made a part, the terms, conditions and provisions of
this Addendum shall be paramount and controlling. The Printed Lease, together
with this Addendum, may be sometimes hereinafter collectively referred to as the
"Lease". All terms used herein shall have the meaning ascribed to them in the
Printed Lease.
1. THE FOOD PARK.
(a) The provisions of this Addendum are generally applicable to each
and every tenant leasing space in the Shopping Center in the area
designated by Landlord for small restaurant operations, carry-out only,
which area is inclusive of individual premises demised to other tenants,
the Food Park Seating Area (as hereinafter defined) and other Common Areas
lying therein (collectively the "Food Park Area"). The "Gross Leasable Area
of the Food Park Area" shall be deemed to mean the actual number of
leasable square feet of the Floor Area in the Food Park Area (as initially
constructed or as the same may at any time thereafter be enlarged or
reduced) which is exclusively appropriated for Food Park Area tenants,
whether leased or vacant, and specifically excluding building roofs, the
Food Park Seating Area and other Common Areas. All measurements are to be
made as provided in the Printed Lease.
(b) Tenant expressly acknowledges and agrees that all rents and
charges required to be paid by Tenant pursuant to this Addendum are in
addition to, and not in lieu or reduction of, Tenant's obligations set
forth in the Printed Lease, including without limitation, Guaranteed
Minimum Rent, Percentage Rent, additional rent and all other charges.
2. FOOD PARK SEATING AREA.
So long as Tenant is not in default under this Lease, Tenant and Tenant's
invitees, customers and patrons shall have a revocable license to use, in common
with others, the Food Park Seating Area. The "Food Park Seating Area" means the
common seating area within the Food Park Area which from time to time may be
made available by Landlord for use, in common with others, by Landlord, Food
Park Area tenants and their invitees, customers and patrons. Landlord in its
sole and absolute discretion shall furnish and install equipment, floor
covering, lighting fixtures, decorative and permanent fixtures, ceiling, tables,
chairs, accessories and other property in the Food Park Seating Area. Landlord
shall be the sole owner of all of the foregoing described items, and Tenant
shall have no right, title or interest in and to any such item, excepting only
in respect to the limited use right granted pursuant to the revocable license
hereinabove provided.
3. EXCLUSIVE CONTROL OF LANDLORD.
The Common Areas of the Food Park Area shall be subject to the exclusive
management and control of Landlord {but Landlord shall have the right to cause
any or all management or other services, including without limitation, those set
forth in Addendum Paragraph 7(a) to be provided by an independent contractor or
contractors}. As between Landlord and Tenant, Landlord shall at all times have
the exclusive right and authority, in its sole and absolute discretion, to
determine the nature and extent of the Food Park Area, and to make such changes,
rearrangements, additions, and/or reductions therein and thereto at any time and
from time to time which it may deem desirable or which may result from any
federal, state or local environmental or other law, rule, regulation, guideline,
judgment or order. Without limiting the generality of the foregoing, in respect
to the Food Park Area, Landlord shall additionally have each and every right
reserved unto it in the Printed Lease respecting the Shopping Center and the
Common Areas.
4. USE.
Tenant shall use the Demised Premises solely for the preparation, sale at
retail and delivery of food and beverages to the public for "carry-out" or for
consumption in the Food Park Area, all in strict accordance with Paragraphs 1(i)
and 6(a) of the Printed Lease. Lessee may be permitted to open for business
earlier than otherwise set forth in the Printed Lease and to serve "breakfast",
upon Landlord's prior written consent which consent may be granted or withheld
by Landlord in its sole discretion and in accordance with the requirements
thereof. Tenant agrees to sell only those food and beverage items specifically
enumerated in said Paragraph 1(i) (such food and beverage items hereinafter
sometimes referred to as the "Menu") and to maintain the highest standards in
quality and preparation of such items. Tenant agrees
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to offer for sale each of the enumerated items on the Menu and any failure to
sell any such item or any substitution for or addition to such item without
Landlord's prior written approval shall be deemed a default under the Printed
Lease, and in addition to (and not in replacement of) any other rights or
remedies pursuant to this Lease, Landlord shall have the right to charge Tenant,
as additional rent, the sum of One Hundred and no/100 Dollars ($100.00) per day
for each and every day or part thereof the default persists. The rights and
remedies reserved in this Paragraph 4 are distinct, separate and cumulative and
the exercise of same shall not be deemed to preclude, waive or prejudice
Landlord's right to exercise any or all others provided in this Lease.
5. DISPOSABLE PAPER PRODUCTS.
In connection with the sale of food and beverages from the Demised Premises,
Tenant agrees to use at its sole cost and expense, only disposable paper goods
and utensils, including, but not limited to, cups, wrap materials, plates,
trays, boats, straws, bags, napkins, spoons, forks, knives, stir sticks and the
like. Landlord shall have the continuing right (but not the obligation) to
develop a uniform design for all such disposable paper products used in the
operation of the Food Park Area, and Tenant agrees to use only disposable paper
products utilizing such design in the manner required by Landlord, and otherwise
of the type, size, material and color approved by Landlord; provided however
that in the event Tenant is a franchisee and shall be required by the terms of
its franchise agreement to utilize a particular design of or type of disposable
paper products, or in the event Tenant is a corporate chain of stores (a chain
being 20 or more stores) Tenant shall be permitted to utilize such design or
type (except in respect to the food trays upon which food and beverages are
served to the public, which must adhere and conform to Landlord's uniform design
standards) with Landlord's prior written approval so long as such products
otherwise conform to the type, size, material and color approved by Landlord.
Although Tenant shall be required to use only paper products so approved by
Landlord, Tenant shall not be required to purchase such products from Landlord.
Tenant shall not be permitted to place signs, trash bins or other receptacles
for refuse on or about Tenant's food counter. In the event Tenant shall violate
the provisions of this Paragraph 5, such violation shall constitute a default
under the Printed Lease, and, in addition to any other rights or remedies
pursuant to this Lease, Landlord shall have the right to charge Tenant, as
additional rent, the sum of One Hundred and no/100 Dollars ($100.00) per day for
each and every day or part thereof such violation exists. The rights and
remedies reserved in this Paragraph 5 are distinct, separate and cumulative and
the exercise of same shall not be deemed to preclude, waive or prejudice
Landlord's right to exercise any or all others provided in this Lease.
6. EMPLOYEE DRESS AND CONDUCT.
Tenant's employees shall at all times be required to present a clean and
well-groomed appearance. Tenant's employees shall be required at all times while
on duty in the Demised Premises to wear uniforms, the color and style of which
are to be subject to Landlord's approval. Landlord hereby approves Tenant's
standard uniforms and trade dress. Tenant may make such arrangement with its own
employees as it deems appropriate regarding the purchase and maintenance of
standard uniforms. In the event Tenant or any of its employees shall not be
properly attired as required hereunder, in addition to any other rights and
remedies in favor of Landlord provided in this Lease, Landlord may direct Tenant
to require any such employee not so attired to immediately conform to the
requirements of this Paragraph or leave the Demised Premises.
7. FOOD PARK AREA MAINTENANCE COSTS.
(a) Landlord shall clean, police, repair and maintain the Food Park
Seating Area during business hours and otherwise in a manner and at such
frequency deemed by Landlord to be reasonably appropriate and in the best
interest of the Shopping Center. All Food Park Operating Costs (as
hereinafter defined) incurred by or on behalf of Landlord for services in
excess of the level of services provided and paid for as part of the Common
Area Maintenance charge set forth in Paragraph 9(b) of the Printed Lease
shall be charged to Food Park Area tenants in the manner hereinafter set
forth. Tenant shall pay to Landlord the Food Park Area Charge (as
hereinafter defined) in consideration of the enhanced or additional Common
Area Maintenance services attributable or otherwise related to the Food
Park Area. Specifically, Tenant agrees to pay Landlord, as additional rent
in the manner provided below in Addendum Paragraph 7(b), the Food Park Area
Charge (as hereinafter defined) which is Tenant's share of the Food Park
Operating Costs (as hereinafter defined). "Food Park Operating Costs" shall
mean all direct and indirect total costs and expenses paid or incurred in
operating, maintaining and repairing the Food Park Area and the Common
Areas located therein, including without limitation, the costs of all
materials, supplies and services purchased or hired therefor, and further,
specifically including without limitation (i) maintenance, repair and
replacement of all machinery, equipment, facilities and personal property;
(ii) maintenance, repair and replacement of the heating, ventilating and
air conditioning system, emergency water and sprinkler main system,
electrical equipment and other
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items; (iii) maintenance, epair and replacement of utility systems,
including water, sanitary sewer and storm water lines and other utility
lines, pipes and conduits; (iv) the cost and expense of lighting,
extermination, sanitary control and removal of trash, garbage and other
refuse (including the removal of litter within the Common Areas of the
Shopping Center within fifteen (15) feet beyond the Food Park Area {the
"Food Park Extended Area"}; (v) premiums for insurance to the extent
provided by Landlord solely in respect to the Food Park Area; (vi) all
personal property taxes and other charges incurred in connection with Food
Park Area machinery, equipment and facilities; (vii) maintenance, repair
and replacement of the grease traps and grease trap lines; (viii) salaries
and wages of all personnel, including without limitation, supervisory
personnel engaged in the cleaning, policing, repairing, maintaining, and
securing of the Food Park Area (and the Food Park Extended Area); (ix) all
costs and expenses enumerated in Paragraph 9(b) of the Printed Lease; and
(x) administrative costs equal to fifteen percent (15%) of the total Food
Park Operating Costs (excepting such administrative costs). Tenant's Food
Park Area Charge shall not include the items excluded therefrom as set out
in Paragraph 9(b). Tenant's Food Park Area Charge is in addition to, and
not in lieu or reduction of, Common Area maintenance charge and all other
rents and charges provided in this Lease.
(b) Tenant's Food Park Area Charge shall be in an amount equal to the
product obtained by multiplying the total Food Park Operating Costs paid or
incurred during each calendar year during the Lease Term by a fraction, the
numerator of which shall be the Floor Area of the Demised Premises and the
denominator of which shall be the Gross Leasable Area of the Food Park
Area. Tenant's Food Park Area Charge shall be estimated, due and payable in
the manner provided in the Printed Lease for Lessee's Common Area
maintenance charges. Any partial calendar year shall be proportionately
adjusted. Landlord estimates that Tenant's prorata share of Food Park Area
Charge for 1997 shall be $30.25 per square foot of Floor Area of the
Demised Premises per annum.
8. UTILITIES AND SERVICES.
Landlord has elected initially to furnish, at Tenant's sole cost and expense,
the electrical energy and chilled air to be used or consumed in the Demised
Premises, and Tenant agrees to purchase and pay Landlord, as additional rent,
for the equipment and service thereof, in accordance with Exhibit "F-1" to the
Printed Lease, at the rates which the applicable public or private utility
company would have charged Tenant for furnishing such utilities, plus applicable
taxes thereon. Landlord reserves the right to discontinue the furnishings of
both or either electrical energy and/or chilled air, and if Landlord shall so
elect to discontinue same, the terms and provisions of said Exhibit "F-1"
pertaining to the payment for such service shall not be applicable from and
after the date of such discontinuance, and in such case, Tenant shall contract
directly with the public or private utility company for the purchase of same as
required under said Exhibit "F-1". Tenant acknowledges and agrees that the
provision by Landlord of any utilities as herein provided is not for the purpose
of reselling or re-metering for profit. Except as hereinabove provided, the
provisions of Paragraph 10 of the printed Lease are incorporated herein by this
reference.
<PAGE>
EXHIBIT A - SITE PLAN A
NOT APPLICABLE
<PAGE>
EXHIBIT B - BUILDING PLAN
NOT APPLICABLE
<PAGE>
EXHIBIT C - SHOPPING CENTER DESCRIPTION
All that certain piece or parcel of land, together with improvements thereon and
appurtenances thereunto belonging, lying and being in the Tuckshoe Magisterial
District, Henrico County, Virginia, containing 25.616 acres, and being
designated as Parcel C, which Parcel C includes Parcels B and E, on a plat of
survey by Austin Brockenbrough and Associates, Consulting Engineers, dated
January 18, 1974, revised February 19, 1974 and June 8, 1974, captioned
"Property Map, Regency Square Shopping Center, Henrico County, Virgin", and
described with reference thereto as follows:
BEGINNING at a point on the south line of Quioccasin Road as widened, said point
being 489.88 feet east of the intersection of Quioccasin Road and Starling Drive
extended; thence from said point of beginning eastwardly along the new line of
Quioccasin Road and along a curve to the right, said curve having a central
angle of 27-53-29, a radius of 701.12 feet, a tangent of 174.10 feet, for a
length of 341.31 feet to a point; thence S 30-00-58 E 343.91 feet to a point;
thence along a curve to the left, said curve having a central angle of 27-43-19,
a radius of 563.06 feet, a tangent of 138.94 feet for a length of 272.43 feet to
a point, said point being a point on the original line of Quioccasin Road;
thence eastwardly along the original line of Quioccasin Road and along a curve
to the left, said curve having a central angle of 4-11-07, a radius of 517.46
feet, a tangent of 18.91 feet, for a length of 37.80 feet to a point; thence S
71-27-17 W 346.36 feet to a point; thence S 30-28-35 W 387.50 feet to a point;
thence S 59-36-25 E 206.00 feet to a point; thence N 30-23-35 E 11.50 feet to a
point; thence S 59-36-25 E 373.16 feet to a point on the north line of Holly
Hill Road as widened; thence westward along the new line of Holly Hill Road, N
84-00-13 W 409.54 feet to the west line of Townley Road as widened; thence
southwardly along Townley Road S 24-18-51 W 39.24 feet to a point on the
original intersection of the north line of Holly Hill Road and Townley Road;
thence N 84-16-49 W 883.42 feet to a point; thence N 84-21-19 W 196.07 feet to a
point; thence N 22-34-43 E 89.97 feet to a point; thence N 16-36-24 W 176.25
feet to a point; thence N 84-46-32 W 120.92 feet to a point on the east line of
Starling Drive; thence northwardly along Starling Drive, N 29-20-56 E 252.58
feet to a point; thence along a curve to the left, said curve having a central
angle of 3-03-19, a radius of 1,462.40 feet, a tangent of 39.00 feet for a
length of 77.98 feet to a point; thence S 59-36-25 E 397.76 feet to a point;
thence N 30-23-35 E 535.97 feet to a point; thence N 59-36-25 W 63 feet to a
point; thence N 30-23-35 E 606.98 feet to the south line of Quioccasin Road as
widened, and the point of beginning.
<PAGE>
EXHIBIT D - DESCRIPTION OF INTEGRATED SHOPPING CENTER
(Parcels A, B, C, D and E as shown on Survey of Austin Brockenbrough and
Associates dated January 18, 1974, revised February 19, 1974 and further revised
June 3, 1974)
Beginning at a point on the north line of Holly Hill Road as widened, said point
being 39.23 feet west of the intersection of Holly Hill Road and Parham Road
extended; thence from said point of beginning and along the north line of Holly
Hill Road as widened, N 84-00-13 W 636.28 feet to the west line of Townley Road
as widened; thence southwardly along Townley Road S. 24-18-51 W 39.24 feet to a
point on the original intersection of the north line of Holly Hill Road and
Townley Road; thence N 84-16-49 W 883.42 feet to a point; thence N 84-21-19 W
196.07 feet to a point; thence N 22-34-43 E 89.97 feet to a point; thence N 16-
36-24 W 176.25 feet to a point; thence N 84-46-32 W 120.92 feet to a point on
the east line of Starling Drive; thence northwardly along Starling Drive, N
29-20-56 E 252.58 feet to a point; thence along a curve to the left, said curve
having a central angle of 9-48-00, a radius of 1,462.40 feet, a tangent of
125.37 feet for a length of 250.13 feet to a point; thence N 19-32-56 E 416.45
feet to a point; thence along a curve to the right, said curve having a central
angle of 8-42-30, a radius of 2,834.79 feet, a tangent of 215.84 feet, for a
length of 430.86 feet to a point; thence N 28-15-26 E 122.42 feet to a point;
thence along a curve to the right, said curve having a central angle of
93-41-40, a radius of 25.00 feet, a tangent of 26.67 feet, for a length of 40.88
feet to a point on the south line of Quioccasin Road as widened; thence along
said south line of Quioccasin Road S 58-02-54 E 461.49 feet to a point; thence
along a curve to the right, said curve having a central angle of 28-01-56, a
radius of 701.12 feet, a tangent of 175.02 feet for a length of 343.03 feet to a
point; thence S 30-00-58 E 343.91 feet to a point; thence along a curve to the
left, said curve having a central angle of 27-43-19, a radius of 563.06 feet, a
tangent of 138.94 feet, for a length of 272.43 feet to a point; thence along a
curve to the left, said curve having a central angle of 8-53-36, a radius of
517.46 feet, a tangent of 40.24 feet for a length of 80.32 feet to a point;
thence along a curve to the left, said curve having a central angle of 7-32-56,
a radius of 1,145.92 feet, a tangent of 75.60 feet, for a length of 150.98 feet
to a point; thence S 8-33-46 W 8.00 feet to a point; thence along a curve to the
right, said curve having a central angle of 74-32-06, a radius of 135.00 feet, a
tangent of 102.72 feet for a length of 175.62 feet to a point on the west line
of Parham Road; thence southwardly along Parham Road, S 6-54-19 E 150.05 feet to
a point; thence S 3-50-58 E 4.74 feet to a point; thence along a curve to the
right, said curve having a central angle of 23-36-57.1, a radius of 904.93 feet,
a tangent of 189.18 feet for a length of 372.99 feet to a point; thence along a
curve to the right, said curve having a central angle of 76-13-47.9, a radius of
50.00 feet, a tangent of 39.23 feet, for a length of 66.52 feet to a point on
the north line of Holly Hill Road as widened, and the point of beginning and
containing 47.616 acres.
<PAGE>
EXHIBIT E - Intentionally deleted
<PAGE>
EXHIBIT F - ENERGY SERVICE AND ENERGY CHARGES
REGENCY SQUARE MALL
1.0 Landlord will deliver to the Demised Premises, electric energy for
lighting, miscellaneous power, heating and air conditioning of the
same, from the central electric energy distribution system of the
Shopping Center in accordance with the following:
1.1 Electric energy shall be available at any time between 8 a.m. and 10
p.m. on the days when the center is designated open by Landlord in the
capacities adequate to satisfy the full electric load of the Demised
Premises. Characteristics of the electric energy service are 3 phase,
4 wire, 60 cycle, 277/480 volt.
1.2 In addition during all other hours of the year, electric energy will
be available for off hour lighting use by the Tenant. Said off hour
load may not exceed 5% of the total connected load of the lighting
devices.
1.3 In addition, during all other hours of the year, electric energy will
be available for maintaining an in-space temperature of 35 degrees F,
whenever outdoor temperature is 35 degrees F or less.
2.0 Tenant shall submit its mechanical and electric plans for the
Landlord's approval. Nothing contained in this Lease shall be
construed to obligate the Landlord to approve Tenant plans or systems
with a total connected load in excess of six (6) watts per square foot
of Floor Area, exclusive of the connected load of heating and air
conditioning equipment.
2.1 Without the written consent of the Landlord in advance, Tenant shall
not increase its heating or cooling load or electric usage capacity
beyond that initially installed in the Demised Premises in accordance
with the approved plans thereof, nor shall it use heating and air
conditioning for any purpose other than comfort conditioning of its
space, nor shall it use electric energy for any other purpose than
lighting and power demands indicated on its approved drawings.
2.2 Without the prior written consent of the Landlord, or unless expressly
otherwise required by the Lease, Tenant shall not use electric energy
during times other than the hours 8 a.m. through 10 p.m. on the days
when the Landlord has designated the center as open, except that off
hour lighting and freeze protection heating described hereinbefore,
and electrical energy used for Tenant's refrigeration equipment and
cash registers, shall not be considered a violation of this clause.
2.3 Tenant shall install an electric heating and air conditioning system
in conformance with the description contained in 4.0 hereinbelow.
3.0 Landlord's Inspections:
3.1 Landlord shall have the right to inspect the Demised Premises to test
Tenant's systems and to install and operate suitable devices for the
purposes of determining Tenant's connected load, demand and
consumption of electric energy and space temperature. Frequency of
such inspections is at the Landlord's option and it should conduct
same in a manner to keep disturbance of Tenant's operation at a
minimum.
3.2 If such an inspection indicates that Tenant's connected load, energy
usage or operation deviates from or exceeds the conditions set forth
in this Lease, Landlord may require (in addition to any other right it
may have) Tenant to pay the cost of said inspection and that the
Tenant provide, at its own cost, all remedial action required to
conform its installation or operation to this Lease.
4.0 Tenant's Systems:
4.1 The electrical work shall be as stated in the Criteria.
4.2 Tenant's distribution shall be arranged to provide independent
circuiting for off hour operating devices, completely separated from
all other users. These off hour devices are:
4.2.1 Night lighting (limited to 5% of the total connected load of all
lighting devices);
<PAGE>
4.2.2 The fan motor of the air handling equipment, used for heating;
4.2.3 The electric heaters of said air handling equipment and the
controllers of said air handling equipment;
4.3 There shall be a separate disconnect switch for the off hour operating
devices and other separate switch or switches for all other circuits.
These latter switches shall be of the type suitable for remote
activation/deactivation, and shall be of the type designated by the
Landlord and the manufacturer and model shall be subject to Landlord's
approval for this purpose.
4.4 Landlord has the option to install a central remote control system,
that will deactivate all electrical circuits of the Tenant, except the
off hour operating devices described hereinbefore, as an energy
conservation measure during all hours when the center is not
designated open by the Landlord.
4.5 Tenant's air conditioning and heating system shall be sized to offset
the in-space and the transmission/radiation heat gains and losses of
the Demised Premises at the design conditions listed and the space
temperatures indicated as follows and these design conditions shall be
used in the computation establishing the electrical charge rates.
4.5.1 Heating: Indoor dry bulb temperature 70 degrees F Outdoor dry bulb
temperature 12 degrees F Wind velocity (up to 75% of extreme cold
hours) 8 mph
4.5.2 Cooling: Indoor dry bulb temperature 76 degrees F Indoor wet bulb
temperature 63 degrees F Indoor relative humidity 50 degrees F Outdoor
dry bulb temperature 96 degrees F Outdoor wet bulb temperature 79
degrees F
4.5.3 Space load criteria Outdoor air intake rate shall not exceed 0.20 of a
CFM per square foot in sales area and 0.10 in stock areas except
during times when neither refrigeration nor heating is performed by
means of electric energy and the space is being conditioned by the use
of outdoor air. The total amount of air exhausted by mechanical
exhaust devices installed by the Tenant shall not exceed the maximum
outdoor rate described hereinbefore. Heat gain from the electrical
devices, lighting, motors and the like in the Demised Premises shall
be their actual rating as shown on the Tenant's electrical plans. For
the purposes of sizing the electric heating devices, a credit shall be
taken for such heat gain in accordance with the recommendations of
ASHRAE Guide. Occupancy of the space shall be considered one person
for every 100 square feet of store area.
4.6 Tenant's mechanical equipment shall include the following provisions
and conform to the following limitations:
4.6.1 The overall efficiency of the air conditioning unit shall be such that
the electric power required for a ton of refrigeration does not exceed
1.4 KW at the design conditions stated hereinbefore. Said 1.4 KW shall
include air cooled equipment which shall include air supply fan,
refrigeration compressor, cooling tower (or evaporative condenser) fan
and water circulating pump in case of water cooled equipment.
4.6.2 A 100% outdoor air economizer cycle shall be provided that will allow
cooling of the space without the use of electric refrigeration,
whenever the outdoor temperature is 55 degrees F or less. Automatic
control devices shall be provided to prevent the refrigeration
equipment from operating, whenever the outdoor temperature is 55
degrees F or less and shall also prevent the electric heaters from
operating whenever the outdoor air quantity drawn by the system
exceeds the maximum outdoor air rate described hereinbefore.
4.6.3 A time clock shall be provided, of the seven day type, to activate and
deactivate the heating and air conditioning system. The on and off
settings of this time clock shall be the same as the hours when the
center is designated open and closed respectively, except that a 1/2
hour
<PAGE>
morning warm-up period is permitted during the heating season before
the actual time of opening the center.
4.6.4 An automatic device will keep all outdoor dampers closed during such
warm-up cycle or whenever the temperature in the store is less than 65
degrees F.
4.6.5 The electric heating coils shall have multiple circuits and shall be
operated by multi-step controllers equipped with time delays between
the steps. These time delays will prevent the entire coil from
becoming energized simultaneously by a call for heat from the
temperature control system and will be adequate in span to allow the
space temperature sensing devices to respond to the added heating
energy. When the total capacity of the heating coils of an air
handling unit is 15 KW or less, a minimum of three equal circuits
shall be provided; when this capacity is more than 15 KW but less than
60 KW, a minimum of 5 equal circuits shall be provided; for capacities
exceeding 60 KW the individual circuit size shall not exceed 15 KW.
4.7 Tenant's heating and air conditioning system shall be provided with
automatic controls maintaining the space temperature automatically by
cycling the air conditioning compressors and the electric heaters.
Whenever mechanical refrigeration is used, the indoor temperature
maintained shall not be less than 75 degrees F. Whenever electric
heating is used the indoor temperature maintained shall not be more
than 70 degrees F.
4.7.1 Temperature maintained lower than these values in the summer or higher
in the winter shall be considered a violation of the Lease and
Landlord shall have the right (in addition to whatever other rights he
may have) to estimate the energy consumed by such excesses, and to
adjust the energy service charges to include additional monies for
such excesses, including adjustment for the past 12 months.
4.7.2 Tenant's air conditioning equipment shall include a part load
operation capacity control for its refrigeration compressors. This may
be in the form of multiple compressors or unloading devices, except
for units less than 6 tons of total capacity as to which this
requirement is waived. Air conditioning units with a total capacity
over 6 tons but not exceeding 20 tons shall have at least 2 capacity
reduction steps, that is 100%, 50%, off. Units over 20 ton capacity
shall have at least 3 steps of capacity control, that is 100%, 66%,
33% and off.
4.7.3 More refined capacity controls or smaller incremental steps as
described hereinbefore are acceptable for both the refrigeration
compressors and the electric heating coils.
4.8 All outdoor air dampers shall be first grade quality, provided with
air tight seals on all damper edges and on all four sides. They must
be leak free in their closed position.
4.9 All ductwork carrying heated or cooled air, except exhaust ductwork,
shall be proved with not less than 1", thermal insulation when running
in non-air conditioned spaces or in hung ceilings that are not acting
as active air return plenums. Any such ductwork running outdoors shall
be provided with not less than 2" thick thermal insulation.
4.10 Tenant's air conditioning system shall be designed to prevent escape
of air into public areas or other stores, and of odors or contaminants
into the public areas or other stores and shall transmit no noise or
vibration into public areas or other stores.
4.11 Tenant agrees to operate its systems so that the amount of electrical
energy consumed for its use is to be economically moderated by
avoiding any unnecessary or wasteful consumption of electricity.
5.0 Electrical Consumption Charge:
5.1 Tenant agrees to pay Landlord for the energy service supplied, under
the conditions described herein, as additional rent, the Electrical
Consumption Charge, payable in 12 equal monthly installments on the
first day of each month during the Lease Term. The payment provided
for herein shall be adjusted for each calendar year, at the end of the
preceding calendar year by adding thereto a sum computed at the rate
of 1% (or fraction thereof) for each increase of 1%, (or corresponding
fraction thereof) of the overall average cost of electric energy paid
by the Landlord. At the same time, the same increase shall be
collected by the Landlord for the preceding calendar year.
<PAGE>
5.2 Landlord's average unit cost of electricity shall be arrived at by
calculating the sum of its electric bills for the preceding 12 months,
divided by the sum of electric energy usage, stated on said bills, in
kwh.
5.3 The Electrical Consumption Charge will be based on the Tenant's
connected electric load as evaluated by the Landlord's engineer.
Tenant shall furnish his final mechanical and electrical drawings to
the Landlord for that purpose and shall cooperate with the Landlord's
engineer, furnishing all information required for an exact
determination of the connected load of each electric energy using
device as well as for the evaluation of full conformance with the
provisions of this lease.
5.4 For the purposes of connected load computation each electric energy
consuming device will be counted as follows:
5.4.1 Fluorescent and mercury lighting at the actual rated wattage of the
lamps and ballast loss plus 10% for power factor correction rounded
off to the nearest 25 volt-amperes. Incandescent lighting at the full
rated wattage of the lamps, in volt-amperes.
5.4.2 All motors at their full nameplate rating of volt-amperes.
5.4.3 All resistance type devices such as heaters at their full rated
capacity.
5.4.4 All convenience outlets, with no load indicated (such as wall or floor
or show-case installed) at 180 VA per receptacle for 120V, 15A or 20A
receptacles; 2000 VA for 208V, 15A or 20A receptacles.
5.5 The total connected load will be the sum total of the individual
electric energy consuming devices connected load as described above,
without any deduction for alleged or actual diversities or partial
operations; with the following two exceptions:
5.5.1 Air conditioning equipment and heating equipment is excluded in full
as their usage will be reflected in the Electrical Consumption Charge
values as a function of the connected load;
5.5.2 Whenever two electrical energy consuming devices are prevented from
operating simultaneously by an automatic electric interlock without
any manual override device, only the larger of the two will be
included for the connected load summation.
5.6 The Floor Area of the Demised Premises shall be as stated in Paragraph
1(a) of the Lease.
<PAGE>
EXHIBIT F-1
REGENCY SQUARE, RICHMOND, VIRGINIA
ENVIRONMENTAL SERVICES, FOOD COURT
1.0 General:
1.1 Landlord will provide for the Demised Premises: all electric energy
for lighting, miscellaneous power and supplementary heating use; and
conditioned air for heating and air conditioning use; all in
accordance with the following:
1.1.1 Electric energy will be available on the days and between the hours of
each day, when the Shopping Center is designated open by Landlord, in
capacities adequate to satisfy the actual electric load in the Demised
Premises;
1.1.2 During all other hours of the year, electric energy will be available
for off-hour lighting use, heating, computer use and food
refrigeration use by Tenant; off-hour lighting may not exceed five
percent (5%) of the total connected load of the lighting devices in
the Demised Premises, unless expressly stated in this lease otherwise;
1.1.3 Electricity may not be used for air-conditioning purposes; only for
control.
1.2 Electric energy service related installation requirements:
1.2.1 Electric energy is delivered by Landlord to electric distribution
rooms, located as designated by Landlord; Landlord's distribution
system terminates in bus ways, furnished by Landlord, in these
distribution room. All electrical work and installations required for
the beneficial use of the Demised Premises, beyond these bus ways
shall be provided by Tenant;
1.2.2 This work by Tenant shall include: (i) fused disconnect switch,
compatible to and installed in Landlord's bus way; and (ii) wire from
that switch to the Demised Premises, to Tenant's in-space electric
distribution system;
1.2.3 Characteristics of Tenant's electrical distribution shall be based on
277/480 volt, three phase, four wire service; it shall include
dry-type transformer for any other required voltage.
1.3 Conditioned air will be supplied under the conditions, time schedules
and Tenant installation requirements described in Exhibit "F-2"
hereof.
1.4 Neither the electric energy nor the conditioned air service supplied
by Landlord to Tenant will be metered nor check-metered.
2.0 Inspections and Evaluations by Landlord:
2.1 Landlord has the right to inspect the Demised Premises to test
Tenant's systems, electricity and conditioned air usage, or space
temperature. Frequency of such inspections shall be at Landlord's
discretion; Landlord shall utilize reasonable efforts to conduct same
in a manner to keep disturbance of Tenant's operation at a practicable
minimum.
2.2 In case such an inspection finds that Tenant's connected load, energy
use or operation deviates from, or exceeds the conditions set forth in
this lease, Landlord may (in addition to any other rights and remedies
elsewhere provided or permitted) require that Tenant pay for the cost
of the said inspection and that Tenant provide, at Tenant's sole cost
and expense, all remedial actions required to conform Tenant's
installation or operation to the provisions of this Lease.
2.3 For the purpose of evaluating the "Environmental Charge Rate" and for
the purpose of any other provision of this Lease, the "Connected
Electric Load" of the Demised Premises is defined as the sum total of
the individual electric energy consuming devices' connected load in
the Demised Premises, without any deduction for alleged or actual
diversities or for partial operations; except, when two (2) electric
energy consuming devices are prevented from operating simultaneously
by means of an automatic interlock, without manual override device,
only the larger of the two (2) has to be included in the connected
load summation.
<PAGE>
2.3.1 For the purposes of connected load summation, the connected load of
each electric energy consuming device is defined as follows:
2.3.2 Fluorescent and mercury lighting at the actual rated wattage of the
lamps plus ballast loss, plus ten percent (10%) power factor
correction;
2.3.3 Incandescent lighting at the full rated wattage of the lamps, in
volt-amperes;
2.3.4 All motors at full name-plate rating volt-amperes, including all
losses;
2.3.5 All resistance type devices and all appliances, such as ovens or
refrigerators at their full rated capacity, with all circuits
operating, in volt-amperes;
2.3.6 All convenience outlets with no load indicated on the drawings count
at 180 VA. per receptacle for 120 V., 15A. or 20A. receptacles; and at
2000 VA. each for 208 V., 15A. or 20A. receptacles.
3.0 Plans: Tenant shall submit its electrical and mechanical plans to
Landlord, for Landlord's prior written approval. Nothing contained in
this lease shall be construed to obligate Landlord to approve Tenant's
plans or systems with a total connected load in excess of seven (7)
watts per square foot of Floor Area, exclusive of electric heating
devices.
3.1 Without advance written consent of Landlord, Tenant shall neither
increase nor decrease its electric load, or its air conditioning load
from the initial installation in the Demised Premises, in accordance
with the approved plans thereof.
3.2 Without advance written consent of Landlord or unless expressly
otherwise required by this Lease, Tenant shall not use electric energy
nor conditioned air during times other than on the days and between
hours when Landlord has designated the Shopping Center as "open";
except, that off- hour lighting, computer use and food refrigeration
in accordance with the foregoing and other requirements and heating
during "off-hours" shall not be considered a violation of this clause.
4.0 Energy Management Requirements:
4.1 Tenant's electrical distribution shall be arranged for independent
circuiting for all off-hour operating devices, separated from all
other users. These off-hour devices are:
4.1.1 Night lighting, including any signs that remain operative during
"closed" hours. Connected load of such lighting is limited to five
percent (5%) of the total connected load of all lighting devices in
the Demised Premises.
4.1.2 Refrigerators and coolers with their controllers;
4.1.3 Computers required to be "on" twenty-four (24) hours per day;
4.1.4 Timer and Temperature Controls.
4.2 A separate disconnect contactor shall be provided for the off-hour
operating devices. Another, separate disconnect contactor(s) shall be
provided for all other uses.
This latter (not "off-hour use" devices) contactor(s) shall be of the
type suitable for remote activation/de-activation by low voltage
signal and shall be of the type designated by Landlord. Manufacturer
and model of these contactors shall be subject to Landlord's prior
written approval.
4.3 Landlord has the option to install a central, remote control system,
that may deactivate (part or) all electrical circuits of Tenant as an
energy conservation measure, during all hours when the Shopping Center
is not designated "open" by Landlord.
4.4 In case Landlord does not install the central control system described
in Section 4.3 hereof, Tenant shall install time-clocks. Whenever the
Demised Premises are not "open for business", these time-clocks will
keep:
4.4.1 All electric energy consuming devices inoperative; "off-hour" devices
described in Sections 4.1.1 through 4.1.4 hereof are exempt from this
requirement;
<PAGE>
4.4.2 Re-set the thermostat(s) maintaining space temperature during the
heating season to 70 degrees F. whenever the Shopping Center is
designated "open" by Landlord, and to 50 degrees F. during all other
times.
5.0 Environmental Service Charges {referred to as "Electrical Consumption
Charge" in Paragraph 1(n) of this Lease}
5.1 For the Environmental Energy Services supplied under conditions
described herein, Tenant agrees to pay Landlord, as additional rent,
the annual "Environmental Service Charge" (Electrical Consumption
Charge), payable in twelve (12) equal monthly installments, on the
first day of each month during the Lease Term.
5.2 The payment provided herein shall be adjusted and billed each month,
by adding thereto a sum reflecting in proportion any increase in any
of the following components of whatsoever kind or nature.
5.2.1 Electric Utility (Virginia Electric Power Co.) rates and charges,
including "customer service charge" or "fuel adjustment" or "fuel
purchase cost" type charges of the Utility;
5.2.2 Surcharges, Taxes and Levies related to the utility charge or to the
electric or to the conditioned air service;
5.2.3 Tenant's connected loads, operating hours of Tenant and of the entire
Shopping Center;
5.2.4 Five percent (5%) late charge for any Environmental Service Charge
balance unpaid on the twentieth (20th) of the month following the
billing date (in addition to other rights and remedies provided or
permitted in this Lease).
5.3 The Environmental Service Charge (Electrical Consumption Charge) shall
be based on Tenant's connected loads and on Tenant's heating and air
conditioning loads, each, as established by Landlord's engineers.
5.3.1 For that purpose, Tenant shall:
5.3.1.1 Furnish its final mechanical and electrical drawings to Landlord in
accordance with the requirements of this Lease; electrical drawings
shall include schedule of lighting fixtures with manufacture, lamp and
ballast (if applicable) rating in watts, schedule of all motors and
appliances with rating in watts or Kw. (a separate schedule may be
submitted for this purpose); mechanical drawings shall include air
flow ratings;
5.3.1.2 Identification of lighting and any other devices intended to operate
"off-hours";
5.3.1.3 Cooperate with Landlord's engineers, furnishing all information
required for exact determination of the connected load of each
electric energy using or heat producing device or condition;
5.3.1.4 Agree to accept the estimate of Landlord's engineers for any
information or data described in Sections 5.3.1.1 and 5.3.1.2 hereof,
but not shown on the drawings (and other documents) supplied by
Tenant.
5.4 Landlord's engineers, using the Connected Electric Loads developed as
per Section 2.3 hereof and using its estimate for the number of hours
usage will calculate:
5.4.1 The charges (including taxes), that Tenant, as the operator of an
independently metered and monthly billed premises equipped with an
"assumed" air-cooled, roof-top type (reciprocating, package) air
conditioning unit(s) with built-in electric resistance type heating
devices would pay to the public Utility Company (identified above), at
the lowest rate that would be applicable to such premises for the
electric demand and energy consumption, including customer (type) and
similar charges;
5.4.2 A component, reflecting the equivalent cost of amortizing the
installation of the "assumed" roof-type Air Conditioning Equipment,
reflecting also the cost of its maintenance and repair.
<PAGE>
This component, subject to change by Landlord, is Two Hundred Ten and
no/100 Dollars ($210.00) per year for each Ton of "nominal" capacity
of this "assumed" Equipment.
5.5 The "Environmental Service Charge" (Electrical Consumption Charge)
shall be the sum of the estimate described in Section 5.4.1 plus the
component described in Section 5.4.2.
5.6 In no event shall payment of the "Environmental Service Charge"
(Electrical Consumption Charge) abate, nor shall Lessee have any right
of offset or counterclaim against the payment of such a charge.
5.7 When developing the Environmental Service Charge, the following
minimum values and factors shall be applied:
5.7.1 All "off-hour" electric energy consuming devices (as described in
Sections 4.1.1 through 4.1.5) will be considered operative twenty-four
(24) hours per day, year-round;
5.7.2 Any electric energy consuming device not provided with time-clock or
not connected to Lessor's central control system shall be considered
operative twenty-four (24) hours per day, year around; including air
handling equipment;
5.7.3 Outdoor air intake rate shall be calculated at rate not less than 0.18
CFM per square foot unless more is indicated on Tenant's drawings;
5.7.4 Energy consumption of the "assumed" self-contained air conditioning
unit compressor(s) and condenser fan combined is 1,400 watts for each
12,000 BTUs (ton of refrigeration) produced, and the sensible heat
factor of this "assumed" units cooling coil is seventy-nine percent
(79%);
5.7.5 Demand and electric energy consumption of the evaporator fan of the
"assumed" self-contained air conditioning unit is 500 watts/square
feet of conditioned area; this fan is assumed to be operative,
whenever the store is open;
5.7.6 For purposes of establishing the "nominal" capacity of the "assumed"
self-contained A.C. unit, the nearest unit with higher capacity than
the peak cooling load of the premises (as calculated by Landlord's
engineers) will be selected from the following list of "nominal
capacity" (expressed in tons of refrigeration effect):
2.0, 3.0, 5.0, 8.0, 10.0, 15.0, 20.0, 25.0, 30.0
When the peak cooling load of space exceeds 30.0 tons (360,000 BTUs)
multiple units with nearest identical capacities will be selected;
5.7.7 Maximum occupancy shall be seventy-five (75) square feet per person;
except thirty (30) square feet per person in food service type stores
in areas accessible to the public;
5.7.8 Full operating hours of space include one half hour each in the
morning before the Demised Premises opens for business and in the
evening after the Demised Premises has closed for the day,
representing preparation and cleaning functions of Tenant's personnel.
6.0 Discontinuation of Service:
6.1 In case Landlord finds, in its sole judgment, that it is not feasible
to furnish or continue to furnish electricity, or conditioned air, or
in case it shall become unlawful for Landlord to furnish electricity
or conditioned air, Landlord may discontinue providing either one or
all of these services, in the entire Shopping Center or in any part
thereof.
6.2 In the event of discontinuation in the conditioned air services,
Tenant shall be responsible for purchasing and installing heating and
air-conditioning equipment at Tenant's own cost and expense, as
required to provide air conditioning and heating to the Demised
Premises.
6.3 In the event of discontinuation in the electric energy services,
Tenant shall be responsible for purchasing its electricity directly
from the utility company; and Tenant shall at Tenant's sole cost and
expense cause the Demised Premises to be separately metered and
billed.
<PAGE>
6.4 Tenant agrees that Landlord shall not be liable to Tenant for
disruption or diminution of the electric or of the conditioned air
services, nor for any shortages or curtailments in the use of these
services and in no event shall any such disruption or shortage or
curtailments entitle Tenant to any abatement of the rents or other
charges due under this lease, nor shall it constitute an eviction,
actual or constructive.
<PAGE>
EXHIBIT F-2
REGENCY SQUARE, RICHMOND, VIRGINIA
HEATING/COOLING SERVICES, FOOD COURT
1.0 Conditioned Air: Landlord will provide for the Demised Premises
conditioned air for air-conditioning and heating; on the days and
between the hours of each day, when the Shopping Center is designated
open by Landlord, in capacities adequate to satisfy the actual air
conditioning load of the Demised Premises, as determined by Landlord.
2.0 Tenant systems:
2.1 Tenant's air handling and distribution system shall be sized to
offset the in-space and transmission/radiation heat gains of the
Demised Premises at the design conditions listed and space
temperatures indicated herein. These design conditions and
temperatures shall be used in the computations establishing the
"Environmental Service Charge" (Electrical Consumption Charge) rate,
as described in Exhibit F".
Indoor temperatures maintained by Tenant lower than those indicated,
when cooling, or higher, when heating, shall be deemed a violation of
this Lease. In case of such violation, Landlord shall have the right,
in addition to any other rights it may have, to estimate the energy
consumed by such excess or excesses, and to adjust the "Environmental
Service Charge" (Electrical Consumption Charge) to include additional
monies for such excess(es), including also adjustment for the past
twelve (12) months.
2.1.1 "Peak" design conditions, air conditioning:
Indoor dry-bulb temperature 76 deg. F.
Indoor wet-bulb temperature 63 deg. F.
Outdoor dry-bulb temperature 95 deg. F.
Outdoor wet-bulb temperature 76 deg. F.
(At Tenant's counter only, and subject to each Tenant's individual
use and configuration of the Demised Premises) 2.1.2 "Peak" design
conditions, heating:
Indoor dry-bulb temperature 70 deg. F.
Outdoor dry-bulb temperature 17 deg. F.
2.2 Tenant's air conditioning system shall be designed for and conform to
the following criteria:
2.2.1 Cooling media conditions:
2.2.1.1 The conditioned air is delivered by Landlord's system with a supply
temperature not more than 54 deg. F. DB and 53.5 deg. F. WB and with
a pressure of 0.18 (eighteen-hundredth) of one inch W.G. on the
downstream side of Landlord's V.V. Box, all at times of "peak" design
cooling outdoor conditions;
2.2.1.2 During all other times, these temperatures and pressure differential
may be reset, at Landlord's option, in accordance with energy
conservation principles.
2.2.2 Landlord's Work for the conditioned air service terminates with a
Variable Volume Air Terminal Box (V.V. Box), located near or in the
Demised Premises; thermostatic control of V.V. Box will be also
provided by Landlord.
All air conditioning, ventilating and heating work and installation,
required for the beneficial use of the Demised Premises, beyond this
junction point shall be provided by Tenant, including all piping
connections to Landlord's distribution network;
2.2.3 Tenant shall install, located in the Demised Premises, an air
distribution system and electric heating devices selected by it to
satisfy the heating and air conditioning requirements of the Demised
Premises, with the heating/cooling media conditions and
indoor/outdoor temperatures stated hereinbefore;
<PAGE>
2.2.4 Tenant's air systems shall be designed to prevent escape of any odors
or contaminants into public areas or other stores; they shall not
transmit noise or vibration into the public areas or to other
premises.
2.2.4.1 When the Tenant's operations are odor-producing (such as, but not
limited to food-service- establishments), a combination (dual-fan)
make-up and exhaust system shall be included, containing the
odor-producing part of the Demised Premises under negative pressure
conditions with twenty-five percent (25%) excess exhaust capacity
over the outdoor air supply rate and in full compliance with all
applicable codes. A certified "air balance" report shall be submitted
to Lessor prior to commencement of Lessee's operations;
2.2.4.2 Mechanical (Motor-driven) exhaust systems shall be provided for all
toilets, capacities as directed by applicable codes; and
2.2.4.3 Routing of any ductwork outside of the Demised Premises shall be as
directed by Landlord; any such ductwork penetrating fire-protective
barriers shall be equipped with fusible-link dampers as prescribed by
the applicable code(s).
2.2.5 All ductwork carrying cooled air shall be provided with 1.0 in.
thermal insulation including vapor barrier; except that any such
ductwork run in air-conditioned spaces or hung ceilings that function
as air return plenums need not be insulated under the provisions of
this Lease. Outdoor air intake ducts and any ductwork carrying
air-conditioned air outdoors shall have 2.0 in. insulation, with
vapor barrier.
2.3 Tenant systems shall be automatically and thermostatically controlled
to permit heating by electric energy only, when:
2.3.1 The V.V. Box is in the "minimum" flow rate positions; and
2.3.2 The Shopping Center is "open" (as determined by Landlord).
2.4 Landlord may elect to connect Tenant's controls to a central, remote
energy management system in order to perform specific functions in
which case, Tenant shall incorporate into its systems (24 Volt)
relays, of the type designated by Landlord.
<PAGE>
EXHIBIT G - MEMORANDUM OF LEASE
STATE OF VIRGINIA
CITY OF RICHMOND
ONE FEDERAL STREET JOINT VENTURE, a Massachusetts joint venture, with
offices in Newark, New Jersey (hereinafter called "Landlord"), hereby leases to
____________________ _________________________, a _______________________,
(hereinafter called "Tenant"), and Tenant hereby rents from Landlord for a
period of __________ (_____) years beginning ________________, 19___, and ending
_______________, ______, store premises in Regency Square Shopping Center,
located on property situated in the City of Richmond, State of Virginia, and
more particularly described on Exhibit A attached hereto and made a part hereof
by reference. All of the provisions set forth in that certain Lease Agreement
dated _______________, 19__, by and between Landlord and Tenant are hereby
incorporated into and made a part of this Memorandum.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed this _____ day of ______________, 19___.
(Signatures and Acknowledgements for Landlord and Tenant to be added)
<PAGE>
EXHIBIT H - ESTOPPEL CERTIFICATE
Date: __________________________
Re:
Gentlemen:
The undersigned, as tenant under that certain lease dated _________________,
19__ together with amendments dated _________________, 19__ (collectively, the
Lease) made with _____________ ____________________________________ as Landlord,
for suite _____ at ______________________ (Demised Premises) hereby ratifies the
Lease and certifies, as of the above date, to the following:
1. Name of Tenant: _________________________________________________.
2. Date of Commencement of Lease: _________________________________.
3. Date of Termination of Lease: __________________________________.
4. Square Footage of Demised Premises: ____________________________.
5. Tenant agrees that monthly rent commenced on ____________, 19__,
that the current monthly rent, inclusive of pass throughs of expenses,
is $____________________. A security deposit in the amount of
$____________ has (has not) been applied to rent.
6. Tenant has no option to renew the Lease except as set forth in the
Lease. Tenant has no option to expand into additional space in the
Property except as set forth in the Lease. Tenant does not have a right
of first refusal on any space in the property except as set forth in
the Lease nor does Tenant have any option to acquire the property in
which the Demised Premises are located.
7. Tenant has accepted and is occupying the Demised Premises. Tenant
has made no advancements for or on behalf of Landlord for which it has
the right to deduct from or offset against future rents and has not
paid rent or additional rent in advance for more than the current month
during which this certification is made. Tenant agrees not to pay rent
or additional rent more than one (1) month in advance at any one time.
Landlord is not reimbursing Tenant or paying Tenant's rent obligations
under any other lease and any free rent period under the lease has
expired.
8. All of the improvements contemplated by the Lease to be constructed
by Landlord have been fully completed by Landlord in accordance with
the plans and specifications approved by Tenant, and Tenant is in full
and complete possession of the Demised Premises, paying rent and
actively conducting its business therein. Tenant has received all
amounts agreed to be contributed by Landlord for finishing the Demised
Premises to Tenant's specifications. None of Landlord's contribution
for Tenant's fit-up expenditures may be credited on Tenant's behalf
towards rent or additional rent due to Landlord.
9. The Lease dated ___________________ is unmodified and in full force
and effect {except for modification(s) dated _________________} and is
the entire agreement between Landlord and Tenant pertaining to the
Demised Premises.
10. There exists no breach or default nor state of facts with which
notice, the passage of time, or both, would result in a breach or
default on the part of either the Tenant or Landlord. To the best of
Tenant's knowledge, no claim, controversy, dispute, quarrel or
disagreement exists between Tenant and Landlord.
11. Tenant has not assigned its interest in the Lease, nor has it
sublet any portion of the Demised Premises under the Lease.
12. Tenant agrees that no future amendment of the Lease is enforceable
unless such amendment has been consented to in writing by the lender
making a loan on the Property of which the Demised Premises form a
part.
<PAGE>
The undersigned acknowledges that the foregoing certifications are made to
induce ____________________ to/make a loan secured by/purchase/ the building in
which the undersigned's Demised Premises are located, and that
_____________________________________ intends to rely on the certifications
contained herein in making such loan.
-----------------------------
By:__________________________
<PAGE>
SURETY AGREEMENT
TO BE ATTACHED TO AND FORM A PART OF
LEASE AGREEMENT DATED ______________, 1997,
BY AND BETWEEN
ONE FEDERAL STREET JOINT VENTURE (LANDLORD)
AND PIZZERIA REGINA OF VIRGINIA, INC. (TENANT)
In consideration of the execution of the above referenced Lease by Landlord, the
undersigned (hereinafter referred to as "Surety"), intending to be legally bound
hereby becomes Surety for the prompt and faithful performance by Tenant of the
Lease and all the terms, covenants and conditions thereof including, but not
limited to, the payment by Tenant of the rent and all other sums to become due
thereunder.
Surety agrees that (1) this obligation shall be binding upon Surety without any
further notice or acceptance hereof, and shall be deemed to have been accepted
by the execution of the Lease; (2) immediately upon each and every default by
Tenant, without any notice to or demand upon Surety, Surety will pay to Landlord
the sum or sums in default and will comply with or perform all the terms,
covenants and conditions of the Lease which shall be binding upon Tenant as
provided in the Lease; (3) no extension, forbearance or leniency extended by
Landlord to Tenant shall discharge Surety and Surety agrees at all times it will
be liable notwithstanding same and notwithstanding the fact that Surety has had
no notice of any default or of any forbearance or extension; (4) Landlord and
Tenant without notice to or consent by Surety may at any time or times enter
into such modifications, extensions, amendments or other covenants respecting
the Lease and Surety shall not be released thereby, it being intended that any
joinder, waiver, consent or agreement by Tenant by its own operation, shall be
deemed to be a joinder, consent, waiver or agreement by Surety with respect
thereto and that Surety shall continue as Surety with respect to the Lease as so
modified, extended, amended or otherwise affected; and (5) neither the Surety's
obligation to make payment in accordance with the terms of this Surety Agreement
nor any remedy for the enforcement thereof shall be impaired, modified, changed,
released or limited in any manner whatsoever by any impairments, modification,
change, release or limitation of the liability of Tenant or its estate in
bankruptcy or of any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of the National Bankruptcy Act or
other statute, or from the decision of any court.
Surety further agrees to be bound by each and every covenant, obligation, power
and authorization, without limitation, in the Lease, with the same force and
effect as if it were designated in and had executed the Lease as Tenant
thereunder.
IN WITNESS WHEREOF, the undersigned has executed this Surety Agreement under
seal as of the day and year first above written.
ATTEST: BOSTON RESTAURANT ASSOCIATES, INC.
a Delaware corporation
____________________________ BY: _____________________________
________ Secretary _____ President
(CORPORATE SEAL)
Address of Surety:
999 Broadway, Suite 400
Saugus, MA 01906