<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended August 2, 1998
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____________ to ______________
Commission File Number 1-11752
ST. JOHN KNITS, INC.
(Exact Name of Registrant as Specified in its Charter)
California 95-2245070
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
17422 Derian Avenue, Irvine, California 92614
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (949) 863-1171
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [_]
The number of outstanding shares of registrant's Common Stock, no par value, was
16,683,884 shares as of September 8, 1998.
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<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ST. JOHN KNITS, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
August 2, November 2,
1998 1997
---------------- ---------------
(unaudited)
<S> <C> <C>
ASSETS
------
Current assets:
Cash and cash equivalents............................................. $ 12,957,572 $ 14,266,564
Investments........................................................... 2,502,036 2,351,765
Accounts receivable, net.............................................. 32,455,301 36,572,423
Inventories........................................................... 47,246,307 30,736,980
Deferred income tax benefit........................................... 6,293,961 5,793,961
Prepaid income taxes.................................................. 1,092,178 --
Other................................................................. 2,355,174 2,591,742
------------- ------------
Total current assets............................................. 104,902,529 92,313,435
------------- ------------
Property and equipment:
Machinery and equipment............................................... 42,497,987 35,903,659
Leasehold improvements................................................ 28,232,022 25,351,868
Buildings............................................................. 15,065,572 11,572,917
Furniture and fixtures................................................ 6,020,739 5,434,754
Land.................................................................. 5,226,857 3,536,606
Construction in progress.............................................. 4,659,946 4,225,573
------------- ------------
101,703,123 86,025,377
Less-Accumulated depreciation and amortization........................ 35,638,987 28,222,633
------------- ------------
66,064,136 57,802,744
------------- ------------
Other assets................................................................. 3,298,536 3,787,396
------------- ------------
$174,265,201 $153,903,575
============= ============
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
Current liabilities:
Accounts payable...................................................... $ 7,451,963 $ 10,034,396
Accrued expenses...................................................... 8,858,767 10,504,934
Income taxes payable.................................................. -- 2,081,242
------------- ------------
Total current liabilities........................................ 16,310,730 22,620,572
------------- ------------
Minority interest............................................................ 651,100 602,910
------------- ------------
Shareholders' equity:
Preferred Stock, no par value: Authorized2,000,000 shares, issued
and outstanding-none -- --
Common Stock, no par value: Authorized40,000,000 shares, issued
and outstanding 16,743,884 and 16,634,548 shares, respectively....... 502,799 502,799
Additional paid-in capital............................................ 20,762,509 18,929,541
Cumulative translation adjustment.................................... (267,735) (19,351)
Retained earnings..................................................... 136,305,798 111,267,104
------------- ------------
157,303,371 130,680,093
------------- ------------
$174,265,201 $153,903,575
============= ============
</TABLE>
See accompanying notes.
2
<PAGE>
ST. JOHN KNITS, INC.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Thirteen Weeks Ended Thirty-Nine Weeks Ended
------------------------------ ------------------------------
August 2, August 3, August 2, August 3,
1998 1997 1998 1997
----------- ----------- ------------ ------------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Net sales............................................ $67,726,764 $54,810,646 $206,293,273 $170,548,472
Cost of sales........................................ 28,298,475 22,647,956 86,210,644 70,759,344
----------- ----------- ------------ ------------
Gross profit......................................... 39,428,289 32,162,690 120,082,629 99,789,128
Selling, general and administrative expenses......... 27,466,146 20,125,485 76,857,692 60,570,472
----------- ----------- ------------ ------------
Operating income..................................... 11,962,143 12,037,205 43,224,937 39,218,656
Other income......................................... 467,849 204,539 1,100,080 659,250
----------- ----------- ------------ ------------
Income before income taxes........................... 12,429,992 12,241,744 44,325,017 39,877,906
Income taxes......................................... 5,105,041 5,040,539 18,033,451 16,419,728
----------- ----------- ------------ ------------
Net income........................................... $ 7,324,951 $ 7,201,205 $ 26,291,566 $ 23,458,178
=========== =========== ============ ============
Net income per common share - basic.................. $ 0.44 $ 0.43 $ 1.57 $ 1.41
=========== =========== ============ ============
Net income per common share - diluted................ $ 0.43 $ 0.42 $ 1.53 $ 1.37
=========== =========== ============ ============
Dividends per share.................................. $ 0.025 $ 0.025 $ 0.075 $ 0.075
=========== =========== ============ ============
Shares used in the calculation of net income per
share-basic......................................... 16,741,455 16,603,906 16,707,206 16,609,280
Shares used in the calculation of net income per =========== =========== ============ ============
share-diluted....................................... 17,154,662 17,136,718 17,133,421 17,129,964
=========== =========== ============ ============
</TABLE>
See accompanying notes.
3
<PAGE>
ST. JOHN KNITS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Thirty-Nine
Weeks Ended
-------------------------------------------
August 2, 1998 August 3, 1997
-------------- --------------
(unaudited)
<S> <C> <C>
Cash flows from operating activities:
Net income...................................................... $ 26,291,566 $ 23,458,178
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization............................... 8,275,770 6,516,819
Increase in deferred income tax benefit..................... (500,000) --
(Gain) loss on disposal of property and equipment........... 478,275 (4,603)
Partnership losses.......................................... 252,113 263,578
Minority interest in income of consolidated subsidiaries.... 48,190 --
Decrease in accounts receivable............................. 4,117,122 33,703
Increase in inventories..................................... (16,509,327) (4,704,146)
Increase in prepaid income taxes............................ (1,092,178) --
(Increase) decrease in other current assets................. 236,568 (436,775)
Increase in other assets.................................... (48,414) (688,015)
Decrease in accounts payable................................ (2,582,433) (93,783)
Decrease in accrued expenses................................ (1,230,303) (1,781,181)
Decrease in income taxes payable............................ (2,081,242) (2,037,101)
-------------- ---------------
Net cash provided by operating activities............... 15,655,707 20,526,674
-------------- ---------------
Cash flows from investing activities:
Proceeds from sale of property and equipment................ 10,499 222,932
Purchase of property and equipment.......................... (16,799,772) (13,564,230)
Purchase of short-term investments.......................... (150,271) --
Sale of short-term investments.............................. -- 1,895,997
Capital distributions from partnership...................... 58,996 --
Capital contributions to partnership........................ -- (17,562)
-------------- ---------------
Net cash used in investing activities................... (16,880,548) (11,462,863)
-------------- ---------------
Cash flows from financing activities:
Issuance of common stock.................................... 1,832,968 719,942
Dividends paid.............................................. (1,668,735) (1,661,022)
-------------- ---------------
Net cash provided by (used in) financing activities..... 164,233 (941,080)
-------------- ---------------
Effect of exchange rate changes.................................... (248,384) --
-------------- ---------------
Net increase (decrease) in cash and cash equivalents.............. (1,308,992) 8,122,731
Beginning balance, cash and cash equivalents....................... 14,266,564 6,186,057
-------------- ---------------
Ending balance, cash and cash equivalents.......................... $ 12,957,572 $ 14,308,788
============== ===============
Supplemental disclosures of cash flow information:
Cash received during the thirty-nine weeks for interest $ 1,115,220 $ 723,936
income..................................................... ============== ===============
Cash paid during the thirty-nine weeks for:
Interest expense........................................ $ 338 $ 9,454
============== ===============
Income taxes............................................ $ 20,910,962 $ 17,995,223
============== ===============
</TABLE>
See accompanying notes.
4
<PAGE>
ST. JOHN KNITS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. Basis of Presentation
The accompanying unaudited consolidated financial statements of St. John
Knits, Inc. and its subsidiaries (collectively referred to herein as "the
Company") reflect all adjustments (which include only normal recurring
adjustments) considered necessary to present fairly the financial position,
results of operations and cash flows of the Company for the periods presented.
It is suggested that the accompanying unaudited consolidated financial
statements and footnotes thereto be read in conjunction with the financial
statements and footnotes included in the Company's Annual Report on Form 10-K
for the year ended November 2, 1997 as filed with the Securities and Exchange
Commission on January 30, 1998.
The results of operations for the periods presented are not necessarily
indicative of the operating results that may be expected for the year ending
November 1, 1998.
2. Summary of Accounting Policies
a. Company Operations
The Company is a leading designer, manufacturer and marketer of women's
clothing and accessories. The Company's products are distributed primarily
through specialty retailers and Company owned retail boutiques. All
intercompany and interdivisional transactions and accounts have been eliminated.
b. Definition of Fiscal Year
The Company utilizes a 52-53 week fiscal year whereby the fiscal year ends
on the Sunday nearest to October 31. The quarters also end on the Sunday
nearest the end of the quarter, which accordingly were August 2, 1998 and August
3, 1997.
3. Dividends
The Company declared a quarterly dividend of $0.025 per share on June 8,
1998 for all shareholders of record on June 25, 1998. The dividend was paid on
July 30, 1998. On September 9, 1998, the Company declared another quarterly
cash dividend of $0.025 per share to be paid on October 30, 1998 to shareholders
of record on September 25, 1998.
4. Earnings Per Share
The Company adopted Statement of Financial Accounting Standards ("SFAS")
No. 128 "Earnings Per Share" during the first quarter of fiscal 1998. Under the
new requirement, primary earnings per share was replaced with basic earnings per
share. Basic earnings per share excludes the dilutive effect of common stock
equivalents, including stock options. Diluted earnings per share includes all
dilutive items. Dilution is calculated based upon the treasury stock method,
which assumes that all dilutive securities were exercised and that the proceeds
received were applied to repurchase outstanding shares at the average market
price during the period.
As a result of the adoption of SFAS No. 128, primary earnings per share for
the third quarter and first nine months of fiscal 1997 were restated from $0.42
to $0.43 and from $1.37 to $1.41, respectively, to reflect the change to basic
earnings per share. The difference between basic and diluted earnings per share,
as shown on the Company's Consolidated Statements of Income, is due to the
dilutive effect of stock options outstanding at August 2, 1998 and August 3,
1997.
5
<PAGE>
5. Inventories
A summary of the components of inventories is as follows:
<TABLE>
<CAPTION>
August 2, November 2,
1998 1997
----------- -----------
<S> <C> <C>
Raw materials............. $14,543,134 $10,362,158
Work in process............ 11,155,329 6,451,053
Finished products.......... 21,547,844 13,923,769
----------- -----------
$47,246,307 $30,736,980
=========== ===========
</TABLE>
6
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Results of Operations
The following table is derived from the Company's Consolidated Statements
of Income and sets forth, for the periods indicated, the results of operations
as a percentage of net sales:
<TABLE>
<CAPTION>
Percent of Net Sales Percent of Net Sales
Thirteen Weeks Ended Thirty-Nine Weeks Ended
("Third Quarter") ("Nine Months")
---------------------- ---------------------------
August 2, August 3, August 2, August 3,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales..................................... 100.0% 100.0% 100.0% 100.0%
Cost of sales................................. 41.8 41.3 41.8 41.5
----- ----- ----- -----
Gross profit.................................. 58.2 58.7 58.2 58.5
Selling, general and administrative expenses.. 40.6 36.7 37.3 35.5
----- ----- ----- -----
Operating income.............................. 17.6 22.0 20.9 23.0
Other income.................................. 0.7 0.4 0.5 0.4
----- ----- ----- -----
Income before income taxes.................... 18.3 22.4 21.4 23.4
Income taxes.................................. 7.5 9.2 8.7 9.6
----- ----- ----- -----
Net income.................................... 10.8% 13.2% 12.7% 13.8%
===== ===== ===== =====
</TABLE>
7
<PAGE>
Third Quarter Fiscal 1998 Compared to Third Quarter Fiscal 1997
Net sales for the third quarter of fiscal 1998 increased by $12,916,000, or
23.6% over the third quarter of fiscal 1997. This increase was principally
attributable to (i) an increase in sales to existing domestic retail customers
of approximately $7,771,000, (ii) an increase in sales by Company owned retail
stores of approximately $2,352,000, due in part to the increased sales of the
New York boutique, the expansion of the Las Vegas boutique, which was completed
in May 1998, and the addition of one retail outlet store since the beginning of
the third quarter of fiscal 1997, (iii) sales of approximately $1,505,000
recorded by Amen Wardy Home Stores, LLC, a majority owned subsidiary that
commenced operations during the fourth quarter of fiscal 1997 ("Amen Wardy Home
Stores") and (iv) an increase in international sales of $1,288,000, which
includes the sales of St. John Company, Ltd., a majority owned subsidiary that
commenced operations in Japan during the fourth quarter of fiscal 1997 ("St.
John Company, Ltd."). Net sales increased primarily as a result of increased
unit sales of various product lines.
Gross profit for the third quarter of fiscal 1998 increased by $7,266,000,
or 22.6% as compared with the third quarter of fiscal 1997, and decreased as a
percentage of net sales to 58.2% from 58.7%. Gross profit as a percentage of net
sales increased slightly from the third quarter of fiscal 1997 to the third
quarter of fiscal 1998, after adjusting for the increase in gross profit
recorded during the third quarter of fiscal 1997 for the change in the method of
accounting for inventory from LIFO to FIFO of $363,000. The Company incurred
costs related to overtime and the training of new employees during the third
quarter of fiscal 1998, which were offset by an increase in the number of
garments being produced and sold without a corresponding increase in certain
production costs, due in part to the fixed nature of these costs.
Selling, general and administrative expenses for the third quarter of
fiscal 1998 increased by $7,341,000, or 36.5% over the third quarter of fiscal
1997, and increased as a percentage of net sales to 40.6% from 36.7%. This
increase was primarily due to (i) costs incurred related to the start-up of the
new home furnishing division, Amen Wardy Home Stores, (ii) an increase in
corporate legal expenses related to the protection of the Company's trademarks,
(iii) an increase in selling expenses due to the Company's expansion of its
sales and marketing team, (iv) an increase in selling expenses due to increased
costs of promoting and marketing its products to its major customers and (v)
costs incurred in connection with the completion and start-up of the jewelry
manufacturing facility in Mexico and the acquisition of additional warehouse
space.
Operating income for the third quarter of fiscal 1998 decreased by $75,000,
or 0.6% over the third quarter of fiscal 1997. Operating income as percentage
of net sales decreased to 17.6% from 22.0% during the same period. This
decrease in the operating income as a percentage of net sales was due to the
decrease in the gross profit margin and the increase in selling, general and
administrative expenses as a percentage of net sales.
First Nine Months Fiscal 1998 Compared to First Nine Months Fiscal 1997
Net sales for the first nine months of fiscal 1998 increased by
$35,745,000, or 21.0% over the first nine months of fiscal 1997. This increase
was principally attributable to (i) an increase in sales to existing domestic
retail customers of approximately $19,473,000, (ii) an increase in sales by
Company owned retail stores of approximately $7,664,000, due in part to the
increased sales of the New York boutique and the addition of three retail outlet
stores since the beginning of fiscal 1997, (iii) sales by
8
<PAGE>
Amen Wardy Home Stores of approximately $4,421,000 and (iv) an increase in
international sales of $4,187,000, which includes the sales of St. John Company,
Ltd. Net sales increased primarily as a result of increased unit sales of
various product lines.
Gross profit for the first nine months of fiscal 1998 increased by
$20,294,000, or 20.3% as compared with the first nine months of fiscal 1997, and
decreased as a percentage of net sales to 58.2% from 58.5%. This decrease was
primarily due to costs incurred for overtime and the training of new employees,
which were partially offset by an increase in the number of garments being
produced and sold without a corresponding increase in certain production costs,
due in part to the fixed nature of these costs.
Selling, general and administrative expenses for the first nine months of
fiscal 1998 increased by $16,287,000, or 26.9% over the first nine months of
fiscal 1997, and increased as a percentage of net sales to 37.3% from 35.5%.
This increase was primarily due to (i) costs incurred related to the start-up of
the new home furnishing division, Amen Wardy Home Stores, (ii) an increase in
selling expenses due to the Company's expansion of its sales and marketing team
and (iii) the closure of the retail boutique located in Aspen during the second
quarter of fiscal 1998.
Operating income for the first nine months of fiscal 1998 increased by
$4,006,000 or 10.2% over the first nine months of fiscal 1997. Operating income
as percentage of net sales decreased to 20.9% from 23.0% during the same period.
This decrease in the operating income as a percentage of net sales was due to
the decrease in the gross profit margin and the increase in selling, general and
administrative expenses as a percentage of net sales.
Liquidity and Capital Resources
The Company's primary cash requirements are to fund the Company's working
capital needs, primarily inventory and accounts receivable, and for the purchase
of property and equipment. During the first nine months of fiscal 1998, cash
provided by operating activities was $15,656,000. Cash provided by operating
activities was primarily generated by net income and a decrease in accounts
receivable, while cash used in operating activities was primarily used to fund
the increase in inventories and the decreases in accounts payable, income taxes
payable and accrued expenses. Cash used in investing activities was $16,881,000
during the first nine months of fiscal 1998. The principal use of cash in
investing activities was for the purchase of property and construction of
improvements for the jewelry and garment hardware manufacturing facility in
Mexico, the purchase of 34 computerized knitting machines, and the construction
of leasehold improvements for a new boutique location in Las Vegas.
The Company anticipates purchasing property and equipment of approximately
$5,000,000 during the remainder of fiscal 1998. The estimated $5,000,000 will
be used principally for the purchase of 12 computerized knitting machines and
the construction of leasehold improvements for the new retail boutique location
at South Coast Plaza.
As of August 2, 1998, the Company had approximately $88,592,000 in working
capital and $15,460,000 in cash and marketable securities. The Company's
principal source of liquidity is internally generated funds. The Company also
has a $25,000,000 bank line of credit ("Line of Credit") which expires on March
1, 2000. The Line of Credit is unsecured and borrowings thereunder bear
interest at the Company's choice of the bank's reference rate minus 0.25% (8.25%
at August 2, 1998) or an offshore rate plus 1.5%. The availability of funds
under the Line of Credit is subject to the Company's continued compliance with
certain covenants, including a covenant that sets the
9
<PAGE>
maximum amount the Company can spend annually on the acquisition of fixed or
capital assets, and certain financial covenants, including a minimum quick
ratio, a minimum tangible net worth and a maximum ratio of total liabilities to
tangible net worth. The Company may not declare or pay any dividends if the
Company fails to perform its obligations under, or fails to meet the conditions
of, the Line of Credit or if payment of the dividend creates a default under the
Line of Credit. As of August 2, 1998, no amounts were outstanding under the Line
of Credit. The Company invests its excess funds primarily in a money market
fund, investment grade commercial paper and tax exempt municipal bonds.
The Company believes it will be able to finance its working capital and
capital expenditure requirements on both a short-term and long-term basis with
internally generated funds.
The Company declared a quarterly cash dividend of $0.025 per share on June
8, 1998 which was paid on July 30, 1998 to shareholders of record on June 25,
1998. On September 9, 1998, the Company declared another quarterly cash
dividend of $0.025 per outstanding share to be paid on October 30, 1998 to
shareholders of record on September 25, 1998. Future dividends by the Company
remain subject to limitations under applicable law and other factors the Board
of Directors deems relevant, including results of operations, financial
condition and capital requirements.
Year 2000
The Company uses various types of technology in the operations of its
business. Some of this technology incorporates date identification functions;
however, many of these date identification functions were developed to use only
two digits to identify a year. These date identification functions, if not
corrected, could cause their relating technology to fail or create erroneous
results by or at the year 2000.
The Company is continuing to assess the impact of Year 2000 issues on its
information and non-information technology systems. As part of this process, the
Company retained the services of an independent contractor with experience in
analyzing and addressing Year 2000 issues. In addition, the Company has
developed a five-phased plan with respect to the Year 2000 readiness of its
internal technology systems. This plan involves (i) creating awareness inside
the Company of Year 2000 issues, (ii) analyzing the Company's Year 2000 state of
readiness, (iii) correcting systems or acquiring new ones as needed, (iv)
testing the corrected or new systems and (v) incorporating the corrected or new
systems into the Company's business. The Company is currently finalizing the
assessment phase of this plan, and has moved into the correction and testing
phases with respect to those technology systems that have been identified by the
Company as having Year 2000 issues. The Company anticipates substantially
completing the implementation of this plan by the end of calendar 1998; however,
the Company may revise the estimated date of completion of this plan based upon
any unforeseen delays in implementing such plan.
The Company has also developed a plan to address the impact that Year 2000
issues of its vendors and customers may have on the Company's operations. The
Company is currently finalizing its evaluation of the materiality of its vendor
and customer relationships and has initiated communications with certain of its
significant vendors and customers to identify and minimize disruptions to the
Company's operations and to assist in resolving Year 2000 issues. The Company
anticipates substantially completing the implementation of this plan by the end
of calendar 1998; however, there can be no assurances that such plan will be
completed by the estimated date or that the systems and products of other
companies on which the Company relies will not have an adverse effect on the
Company's business, operations or financial condition.
10
<PAGE>
As of August 2, 1998, the Company had incurred approximately $150,000 in
costs related to the Year 2000 issue. The Company believes that additional costs
related to the Year 2000 issue will not be material to the Company's business,
operations or financial condition. However, estimates of Year 2000 related costs
are based on numerous assumptions and there is no certainty that estimates will
be achieved and actual costs could be materially greater than anticipated. The
Company anticipates that it will fund its additional Year 2000 costs from
current working capital.
Forward Looking Statements
This Quarterly Report on Form 10-Q contains certain statements which
describe the Company's beliefs concerning future business conditions and the
outlook for the Company based on currently available information. Wherever
possible the Company has identified these "forward looking" statements (as
defined in Section 21E of the Securities Exchange Act of 1934) by words such as
"anticipates," "believes," "estimates," "expects" and other similar expressions.
The forward looking statements and associated risks set forth herein may include
or relate to: (i) the Company's anticipated purchases of property and equipment
during the remainder of fiscal 1998, (ii) the Company's belief that it will be
able to fund its working capital and capital expenditure requirements with
internally generated funds, (iii) the Company's anticipated completion of its
Year 2000 readiness plans and (iv) the costs and source of funds to address the
Company's Year 2000 issues.
These forward looking statements are subject to risks, uncertainties and
other factors which could cause the Company's actual results, performance or
achievements to differ materially from those expressed in, or implied by, these
statements. These risks, uncertainties and other factors include, but are not
limited to, the following: (i) the financial strength of the retail industry and
the level of consumer spending for apparel and accessories, (ii) the Company's
ability to develop, market and sell its products, (iii) increased competition
from other manufacturers and retailers of women's clothing and accessories, (iv)
general economic conditions and (v) any unanticipated problems or delays in the
completion by the Company to become Year 2000 ready or the failure of the
Company's vendors or customers to do so.
11
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits required by Item 601 of Regulation S-K.
See "Exhibit Index."
(b) Reports on Form 8-K.
None.
12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
September 9, 1998 ST. JOHN KNITS, INC.
By: /s/ Bob Gray
--------------------------------
Bob Gray
Chairman of the Board and
Chief Executive Officer
By: /s/ Roger G. Ruppert
--------------------------------
Roger G. Ruppert
Senior Vice President - Finance,
Chief Financial Officer
(Principal Financial Officer)
13
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description of Exhibit Numbered Page
- ------- ---------------------- -------------
<C> <S> <C>
10.1 Lease Agreement dated June 5, 1998 between the Company and South
Coast Plaza, a California General Partnership (South Coast Plaza
Boutique)
10.2 Wool Yarn Purchase Agreement dated July 29, 1998 between the
Company and the Kent Manufacturing Company
10.3 Amended and Restated Employment Agreement dated as of July 13,
1998 between the Company and Robert E. Gray
10.4 Employment Agreement dated as of July 14, 1998 between the Company
and Marie St. John Gray
10.5 Employment Agreement dated as of July 14, 1998 between the Company
and Kelly A. Gray
10.6 Employment Agreement dated as of July 14, 1998 between the Company
and Roger G. Ruppert
10.7 Employment Agreement dated as of July 14, 1998 between the Company
and David C. Frankel
10.8 Employment Agreement dated as of July 14, 1998 between the Company
and Karla R. Guyer
10.9 Employment Agreement dated as of July 14, 1998 between the Company
and Bruce Fetter
10.10 Amendment No. 6 to Business Loan Agreement between the Company and
Bank of America National Trust and Savings Association
10.11 Amendment No. 7 to Business Loan Agreement between the Company and
Bank of America National Trust and Savings Association
27.1 Financial Data Schedule
</TABLE>
14
<PAGE>
EXHIBIT 10.1
[LOGO OF SOUTH COAST PLAZA]
SOUTH COAST PLAZA RETAIL CENTER
SOUTH COAST PLAZA,
Landlord
and
ST. JOHN KNITS, INC.,
Tenant
Approved as to Form.
Latham & Watkins
By /s/ JW DANIELS
--------------
JW DANIELS
<PAGE>
SOUTH COAST PLAZA RETAIL CENTER
In consideration of the rents and covenants hereinafter set forth,
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the
following described premises upon the following terms and conditions:
FUNDAMENTAL LEASE PROVISIONS
<TABLE>
<CAPTION>
<S> <C>
Dated (for identification purposes): June 5, 1998
Landlord: SOUTH COAST PLAZA, a California general partnership
Tenant: ST. JOHN KNITS, INC., a California corporation
Tenant's Tradename: ST. JOHN KNITS / AMEN WARDY HOME
Suite Number: 2533 and 3011
Use of Premises: See Addendum (Section 6.01)
Initial Monthly Minimum Rent: $76,920.00* ($60.00 per sq. ft. per yr.) (Section 3.01)
Rent Commencement Date: See Addendum (Section 2.02)
Lease Expiration Date: January 31, 2014 (Section 2.01)
Outside Date for PDM: June 15, 1998 (Section 17.02)
Outside Date for Start of Tenant's Work: See Addendum (Section 17.04)
Percentage Rent: 6% in excess of a breakpoint of $15,384,000 per lease year* (Section 3.03)
Estimated Initial Common Area Charges: $15.32 per sq. ft. per yr.** (Section 14.05)
Estimated Initial Real Property Taxes: Included in Common Area Charges (Secs. 5.01, 14.05)
Estimated Initial Premises VAC Charges: $4.99 per sq. ft. per yr.** (Section 12.04)
Estimated Initial Enclosed Mall VAC Charges: $1.32 per sq. ft. per yr.** (Section 12.05)
Promotional Fund: $3.48 per sq. ft. per yr.** (Section 16.15)
Initial Promotional Fund Payment: None See Addendum (Section 16.15)
Floor Area of Premises: 15,384 sq. ft.* (Section 16.04)
Security Deposit: None See Addendum (Section 16.05)
Plan Review Fee: None (Section 17.03)
VAC Hookup and Upgrade Fee: None (Section 17.04)
Broker(s): None (Section 16.12)
Advertised Address for Premises: SOUTH COAST PLAZA (Section 15.04)
Address for Notices: (Section 16.11)
</TABLE>
To Landlord: To Tenant:
South Coast Plaza Management Offices St. John Knits, Inc.
3333 Bristol Street 17422 Derian Avenue
Costa Mesa, California 92626 Irvine, California 92713
Attn: General Manager Attn: Mr. Robert Gray, President
FAX: (714) 540-7334 FAX: (949) 223-3283
With a copy to:
South Coast Plaza
3315 Fairview Road
Costa Mesa, California 92626
Attn: Controller
FAX: (714) 546-9835
* To be adjusted to reflect actual Floor Area
** Based upon estimated amounts for current calendar year, without
representation as to actual amounts determined for current and future
calendar years
The Fundamental Lease Provisions are an integral part of this lease and
each reference in this lease to any of the Fundamental Lease Provisions shall be
construed to incorporate all of the terms provided under each such Fundamental
Lease Provision. In the event of any conflict between any Fundamental Lease
Provision and the balance of this lease, the latter shall control. References to
specific Sections are for convenience only and designate some of the Sections
where references to the particular Fundamental Lease Provisions appear. The
listing in the Fundamental Lease Provisions of monetary charges payable by
Tenant shall not be construed to be an exhaustive list of all amounts payable by
Tenant pursuant to this lease.
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TABLE OF CONTENTS
-----------------
Page
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ARTICLE I. - PREMISES......................................................... 1
Section 1.01 Premises Defined See Addendum............................. 1
ARTICLE II. - TERM............................................................ 1
Section 2.01 Length Of Term; Early Termination See Addendum............ 1
Section 2.02 Lease Commencement Date And Rent Commencement Date See
Addendum................................................... 1
Section 2.03 Lease Year................................................. 1
ARTICLE III. - RENT........................................................... 1
Section 3.01 Minimum Rent; Increases See Addendum...................... 1
Section 3.02 Cost Of Living Increase [Intentionally Deleted]........... 2
Section 3.03 Percentage Rent See Addendum.............................. 2
Section 3.04 Rent Defined See Addendum................................. 2
Section 3.05 Place For Payments......................................... 3
ARTICLE IV. - RECORDS, REPORTS AND ACCOUNTING................................. 3
Section 4.01 Records See Addendum...................................... 3
Section 4.02 Statements Of Gross Sales See Addendum.................... 4
Section 4.03 Audit See Addendum........................................ 4
ARTICLE V. - TAXES............................................................ 4
Section 5.01 Real Property Taxes........................................ 4
Section 5.02 Definitions See Addendum.................................. 4
Section 5.03 Other Taxes See Addendum.................................. 5
ARTICLE VI. - CONDUCT OF BUSINESS BY TENANT................................... 5
Section 6.01 Use Of Premises See Addendum.............................. 5
Section 6.02 Restrictions On Use See Addendum.......................... 6
Section 6.03 Other Locations See Addendum..............................17
ARTICLE VII. - MAINTENANCE, REPAIRS AND ALTERATIONS........................... 9
Section 7.01 Landlord's Obligations See Addendum....................... 9
Section 7.02 Tenant's Obligations See Addendum......................... 9
Section 7.03 Alterations And Additions See Addendum....................10
Section 7.04 Cleanliness; Waste And Nuisance............................10
Section 7.05 Health Matters See Addendum...............................10
ARTICLE VIII. - INSURANCE; INDEMNITY..........................................11
Section 8.01 Liability Insurance-Premises See Addendum.................11
Section 8.02 Fire Insurance-Fixtures, Equipment And Tenant Improvements
See Addendum...............................................12
Section 8.03 Landlord's Insurance See Addendum.........................12
Section 8.04 Insurance Policies See Addendum...........................13
Section 8.05 Waiver Of Subrogation See Addendum........................13
Section 8.06 Indemnity See Addendum....................................13
Section 8.07 Exemption Of Landlord See Addendum........................14
Section 8.08 Landlord's Security See Addendum..........................14
Section 8.09 Tenant's Security..........................................14
ARTICLE IX. - REPAIRS AND RESTORATION.........................................14
Section 9.01 Insured Or Minor Damage....................................14
Section 9.02 Major Damage To Premises See Addendum.....................15
Section 9.03 Major Damage To Center See Addendum.......................15
Section 9.04 Damage Near End Of Term See Addendum......................15
Section 9.05 Abatement Of Rent; Remedies For Non-Performance
See Addendum...............................................15
Section 9.06 Definitions................................................16
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ARTICLE X. - ASSIGNMENT AND SUBLETTING........................................16
Section 10.01 Landlord's Rights See Addendum...........................16
Section 10.02 Transfers In Bankruptcy...................................19
Section 10.03 No Release Of Tenant......................................19
ARTICLE XI. - EMINENT DOMAIN..................................................19
Section 11.01 Entire Or Substantial Taking..............................19
Section 11.02 Partial Taking See Addendum..............................19
Section 11.03 Taking Of Center See Addendum............................19
Section 11.04 Awards See Addendum......................................19
Section 11.05 Sale Under Threat Of Condemnation See Addendum...........20
ARTICLE XII. - UTILITY SERVICES...............................................20
Section 12.01 Utility Charges...........................................20
Section 12.02 Furnishing Of Services See Addendum......................20
Section 12.03 Interruption Of Service See Addendum.....................20
Section 12.04 Central System............................................20
Section 12.05 Enclosed Mall Air Conditioning............................21
ARTICLE XIII. - DEFAULTS AND REMEDIES.........................................21
Section 13.01 Defaults See Addendum....................................21
Section 13.02 Remedies See Addendum....................................22
Section 13.03 Default By Landlord See Addendum.........................23
Section 13.04 Expense Of Litigation See Addendum.......................24
Section 13.05 Holding Over See Addendum................................24
Section 13.06 Landlord's Rights See Addendum...........................24
Section 13.07 Lien For Rent [Intentionally Deleted] See Addendum.....25
Section 13.08 Trial Without Jury........................................25
Section 13.09 Submission To Arbitration.................................25
ARTICLE XIV. - COMMON AREAS...................................................26
Section 14.01 Definition See Addendum..................................26
Section 14.02 Use See Addendum.........................................27
Section 14.03 Control By Landlord See Addendum.........................27
Section 14.04 Common Area Costs See Addendum...........................28
Section 14.05 Proportionate Payment See Addendum.......................30
ARTICLE XV. - SIGNS, LIGHTING AND ADVERTISING.................................30
Section 15.01 Prohibited Activities See Addendum.......................30
Section 15.02 Maintenance See Addendum.................................31
Section 15.03 Display Window Lighting...................................31
Section 15.04 Advertised Name And Address See Addendum.................31
Section 15.05 Advertising Expenditures See Addendum....................32
Section 15.06 Acceptance Of Center Gift Certificates See Addendum......32
Section 15.07 Publications Program Advertising See Addendum............33
Section 15.08 Signs On Exterior Fascia See Addendum....................33
ARTICLE XVI. - MISCELLANEOUS..................................................33
Section 16.01 Estoppel Statements See Addendum.........................33
Section 16.02 Landlord's Right Of Access See Addendum..................34
Section 16.03 Transfer Of Landlord's Interest...........................34
Section 16.04 Floor Area................................................34
Section 16.05 Deposit And Financial Statements See Addendum............35
Section 16.06 Late Payments And Deliveries See Addendum................35
Section 16.07 Separability..............................................35
Section 16.08 Time Of Essence See Addendum.............................35
Section 16.09 Headings..................................................35
Section 16.10 Incorporation Of Prior Agreements; Amendments;
Counterparts..............................................36
Section 16.11 Notices See Addendum.....................................36
Section 16.12 Brokers See Addendum.....................................36
Section 16.13 Waivers See Addendum.....................................36
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Section 16.14 Recording See Addendum...................................37
Section 16.15 Advertising And Promotional Fund See Addendum............37
Section 16.16 Liens See Addendum.......................................38
Section 16.17 Subordination See Addendum...............................38
Section 16.18 Tenant's Authority See Addendum..........................38
Section 16.19 Safety And Health See Addendum...........................39
Section 16.20 Indemnities...............................................39
Section 16.21 Non-Disclosure Of Lease Terms See Addendum...............39
Section 16.22 Gender; Tenants...........................................40
Section 16.23 Force Majeure See Addendum...............................40
Section 16.24 Yield Up Premises.........................................40
Section 16.25 Relocation Of Tenant [Intentionally Deleted].............40
Section 16.26 No Option See Addendum...................................40
Section 16.27 Landlord Liability........................................41
Section 16.28 Termination See Addendum.................................41
Section 16.29 Tax Benefits..............................................42
Section 16.30 Accord And Satisfaction See Addendum.....................42
Section 16.31 Financing See Addendum...................................42
Section 16.32 Landlord's Consent [Intentionally Deleted]...............42
Section 16.33 Mortgagee Cure Rights.....................................42
Section 16.34 Obligations of a Mortgagee................................42
ARTICLE XVII. - CONSTRUCTION OF PREMISES......................................43
Section 17.01 Condition Of Premises See Addendum.......................43
Section 17.02 Design Review See Addendum...............................43
Section 17.03 Plans For Tenant's Work See Addendum.....................44
Section 17.04 Tenant's Work See Addendum...............................44
EXHIBIT "A" - Site Plan of Center with Premises Depicted
EXHIBIT "B" - Lease Plan of Premises
EXHIBIT "B-1" - Plot Plan Showing Center Boundaries
EXHIBIT "B-2" - Map Showing Prohibited Area
EXHIBIT "B-3" - Statement of Compliance
EXHIBIT "C" - General Description of Landlord's Work and of Tenant's Work
EXHIBIT "D" - Tenant Cold Air Annual Charge Schedule
EXHIBIT "E" - Detailed Design Criteria and Standards for Landlord's Work
and Tenant's Work
EXHIBIT "F" - Accelerated Building Plan Review Agreement
EXHIBIT "G" - Rules and Regulations for South Coast Plaza
EXHIBIT "H" - Known Locations of Asbestos-Bearing Construction Materials
EXHIBIT "I" - Form of Lease Estoppel Certificate
EXHIBIT "J" - Form of Tenant's Gross Sales Reports
EXHIBIT "K" - Paragraph 10 of Reciprocal Easement Agreement
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ARTICLE I.
PREMISES
PREMISES DEFINED Section 1.01 See Addendum
Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord those certain premises (the
"Premises") located in the South Coast Plaza Retail
Center in the City of Costa Mesa, County of Orange,
State of California (the "Center"), which Center,
Premises and the enclosed mall on which the Premises
open (the "Enclosed Mall") are more particularly
depicted on Exhibit "A" attached hereto, for the term,
at the rental, and upon all of the conditions and
agreements set forth herein; reserving to Landlord,
however, (a) the use of the exterior walls, roof,
return air plenum and the area under the Premises
floor and (b) the rights to make structural (building)
modifications and to install, maintain, use, repair
and replace pipes, ducts, conduits, and wires serving
other portions of the Center through the Premises in
locations which will not materially interfere with
Tenant's use thereof. Landlord further reserves the
right, prior to the commencement of Tenant's Work in
the Premises, to make changes in the lease lines shown
on Exhibit "B," so long as such changes do not
materially change the size of the Premises.
ARTICLE II.
TERM
LENGTH OF TERM; EARLY Section 2.01
TERMINATION (a) The term of this lease shall be from the Lease
Commencement Date determined pursuant to Section 2.02
to and until the lease expiration date specified in
the applicable Fundamental Lease Provision, unless
earlier terminated pursuant to any provision of this
lease.
(b) [Intentionally Deleted]
LEASE COMMENCEMENT Section 2.02 See Addendum
DATE AND RENT (a) The "Lease Commencement Date" of this lease
COMMENCEMENT DATE shall be the date on which Landlord delivers
possession of the Premises to Tenant. Delivery of
possession shall be by telephonic notice from Landlord
to Tenant or Tenant's architect or contractor of the
date on which the Premises will be available and ready
for Tenant to commence Tenant's Work pursuant to
Section 17.04, whether or not any work by Landlord
remains to be completed. It shall be Tenant's
responsibility to obtain a key to the Premises from
Landlord's construction coordinator. From and after
the Lease Commencement Date, Tenant shall observe and
perform all obligations of the tenant pursuant to this
lease, other than those requiring the payment of
Minimum Rent, Percentage Rent and additional rent. The
"Rent Commencement Date" of this lease shall be the
first to occur of the date specified in or determined
pursuant to the applicable Fundamental Lease Provision
or the date on which Tenant opens the Premises for
business. From and after the Rent Commencement Date,
Tenant shall observe and perform all obligations of
the tenant pursuant to this lease, including those
requiring the payment of Minimum Rent, Percentage Rent
and additional rent. No delay in Landlord's delivery
of the Premises shall entitle Tenant to terminate this
lease or to any damages on account of such delay.
(b) [Intentionally Deleted]
(c) [Intentionally Deleted]
LEASE YEAR Section 2.03
A lease year is a period of twelve (12) full
calendar months commencing on the first day of
February and ending on the last day of January, except
that if the Lease Commencement Date occurs on a date
other than February 1 there shall be a partial lease
year for the period from the Lease Commencement Date
to the next following January 31, both dates
inclusive, and the last lease year, if this lease is
terminated on a date other than January 31, shall be a
partial lease year for the period beginning on
February 1 following the last preceding full lease
year and ending on the termination date.
ARTICLE III.
RENT
MINIMUM RENT; Section 3.01 See Addendum
INCREASES (a) Tenant shall pay to Landlord for each full
calendar month following the Rent Commencement Date
the monthly Minimum Rent specified in the applicable
Fundamental Lease Provision, subject to any adjustment
pursuant to Sections 3.01(b), 3.02, 10.01(e) and
16.04. The first month's Minimum Rent shall be paid
with Tenant's delivery of this lease. Thereafter,
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Minimum Rent shall be payable in advance upon the
first day of each calendar month or partial calendar
month without any deduction or offset. The Minimum
Rent for any fractional part of a calendar month at
the beginning or end of the lease term shall be a
proportionate part of the Minimum Rent for a full
calendar month. Such proration and all other
prorations pursuant to this lease shall be made on the
basis of a thirty (30) day month and a 360 day year.
(b) [Intentionally Deleted]
COST OF LIVING INCREASE Section 3.02 [Intentionally Deleted]
PERCENTAGE RENT Section 3.03 See Addendum
(a) In addition to the Minimum Rent, Tenant shall
pay to Landlord for each lease year or partial lease
year following the Rent Commencement Date, as
Percentage Rent, the percentage specified in the
applicable Fundamental Lease Provision of Tenant's
gross sales (as hereinafter defined) for such lease
year or partial lease year in excess of the Percentage
Rent breakpoint specified in the applicable
Fundamental Lease Provision (as adjusted in the case
of partial lease years). Upon any adjustment of the
Minimum Rent pursuant to Sections 3.01(b), 3.02,
10.01(e), 16.04, or any other provision of this lease,
the Percentage Rent breakpoint shall be adjusted to
that amount determined by dividing the annual Minimum
Rent after such adjustment by the Percentage Rent rate
set forth in the applicable Fundamental Lease
Provision. The Percentage Rent breakpoint for any
partial lease year shall be determined by multiplying
the Percentage Rent breakpoint for a full lease year
by a fraction, the numerator of which is the number of
days in the partial lease year and the denominator of
which is 360.
With respect to any lease year or partial lease
year in which the breakpoint changes by virtue of an
increase in Minimum Rent during such year, Tenant's
Percentage Rent breakpoint for such lease year or
partial lease year shall be determined as follows. The
annual Percentage Rent breakpoint in effect prior to
the increase in Tenant's Minimum Rent shall be
multiplied by a fraction, the numerator of which shall
be the number of days in such lease year or partial
lease year subsequent to the Rent Commencement Date
through the day of the increase in Tenant's Minimum
Rent and the denominator of which shall be 365. The
annual Percentage Rent breakpoint in effect subsequent
to the increase in Minimum Rent shall be determined in
the manner described above, and such annual Percentage
Rent breakpoint shall be multiplied by a fraction, the
numerator of which shall be the number of days in such
lease year or partial lease year subsequent to the
increase in Tenant's Minimum Rent and the denominator
of which shall be 365. The amounts derived pursuant to
the two immediately preceding sentences shall be added
together and shall be the Percentage Rent breakpoint
for such lease year or partial lease year. From and
after the effective date of the event giving rise to
such increase in Tenant's Minimum Rent, the annual or
partial lease year breakpoint determined pursuant to
this subsection shall be used in determining Tenant's
payments, if any, on account of Percentage Rent for
the remainder of the year. With the commencement of
each new lease year thereafter, the annual Percentage
Rent breakpoint shall be calculated as set forth
above.
(b) On or before the fifth (5th) day following each
calendar month following the Rent Commencement Date,
Tenant shall pay to Landlord, on account of such
Percentage Rent, the stated percentage of the amount,
if any, of Tenant's gross sales for such preceding
calendar month in excess of one-twelfth (1/12) of the
annual Percentage Rent breakpoint. Promptly upon
Tenant's submission pursuant to Section 4.02(b) of
Tenant's annual certified statement of gross sales (or
upon Landlord's election if such statement is not
submitted within the time required by this lease), the
parties shall make any adjustment necessary to place
the Percentage Rent on a lease year basis. Any
additional amount due from Tenant shall be paid by
Tenant to Landlord with Tenant's annual statement of
gross sales pursuant to Section 4.02(b) or within ten
(10) days after the date of Tenant's receipt of
Landlord's invoice therefor if no such annual
statement is furnished. Any refund due to Tenant shall
be credited against the next Percentage Rent payable
by Tenant pursuant to Section 3.03(a) or, if at the
end of the term, applied against any amount then owed
by Tenant to Landlord pursuant to this lease and the
balance, if any, refunded to Tenant.
(c) (i) The term "gross sales" as used herein means
the entire amount charged, whether wholly or partly
for cash, on credit or otherwise, for all merchandise
sold, and all charges made for services performed or
for the extension of credit in, at or from the
Premises, or through the substantial use of the
Premises, by Tenant or anyone acting on Tenant's
behalf or under a sublease, license or concession from
Tenant, including, without limiting the generality of
the foregoing, the amount allowed upon any "trade-in,"
the retail price of any merchandise delivered on
redemption of trading stamps, all deposits not
refunded to purchasers, all catalog sales at or from
the Premises, all direct mail sales made from any
location but based upon a list of Tenant's customers
at the Premises, the gross proceeds from the sale of
stamps or theater or sporting event tickets, all
receipts from electronic or other video games and from
advertising conducted at the Premises by Tenant for
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others and all orders taken in or from the Premises or
which Tenant would in the normal course of its
operations credit or attribute to its business in the
Premises, even though such orders may be filled
elsewhere, without deduction in any case for
uncollected or uncollectible credit accounts. There
shall also be included in "gross sales" the gross
receipts from all mechanical, electronic and other
vending devices placed in the Premises by Tenant or
under authority from Tenant, other than such devices
which are installed in portions of the Premises not
open to the public for the convenience of Tenant's
employees, mail or phone order sales solicited from or
returned to the Premises and mail order or telephone
order sales from the Premises in response to
advertisements using the Premises address or telephone
number and all sales made by televideo or other
electric or electronic media of any type where such
media direct the sale or order to the Premises. Gross
receipts from sales made and orders taken in the
Premises shall be included in "gross sales" even
though the account may be transferred elsewhere for
collection and although the delivery of merchandise
sold or the performance of services ordered may be
made elsewhere than at the Premises. Every transaction
on a deferred payment basis shall be treated as a sale
for the full price at the time such transaction is
entered into, irrespective of the time for payment or
the time when title passes. Gross sales of each
sublessee, licensee, concessionaire or other person
using all or a portion of the Premises under authority
from Tenant shall be included in Tenant's gross sales
statements.
(ii) The term "gross sales" as used herein
shall not include (or, if included, there shall be
deducted to the extent of such inclusion) the amount
of any cash or credit refund in fact made upon sales
from the Premises, where the merchandise sold or some
part thereof is returned by the purchaser and accepted
by Tenant, nor exchanges and transfers of merchandise
between stores of Tenant, where made solely for the
convenient operation of Tenant's business and not
having the effect of consummating a sale made or which
would have been made at the Premises, nor returns to
shippers or manufacturers, nor sales of fixtures or
equipment after their substantial use in the conduct
of Tenant's business in the Premises, nor the amount
of any sales, luxury or excise taxes on sales from the
Premises, where such taxes are both added to the
selling price (or absorbed therein) and paid to the
taxing authorities by Tenant (but not by any vendor of
Tenant).
(iii) [Intentionally Deleted]
RENT DEFINED Section 3.04 See Addendum
As used in this lease, the term "rent" shall mean
Minimum Rent, Percentage Rent and additional rent, and
the term "additional rent" shall mean all amounts
payable by Tenant to Landlord pursuant to this lease
other than Minimum Rent and Percentage Rent. All
Minimum Rent, Percentage Rent and additional rent
shall be paid in lawful money of the United States
which shall be legal tender at the time of payment.
Where no other time is stated herein for payment,
payment of any amount due from Tenant to Landlord
hereunder shall be made within ten (10) days after
Tenant's receipt of Landlord's invoice or statement
therefor.
PLACE FOR PAYMENTS Section 3.05
All payments to be made by Tenant to Landlord
pursuant to this lease shall, until further notice by
Landlord to Tenant, be made to Landlord at the
following address:
South Coast Plaza
File No. 54876
Los Angeles, CA 90074-4876
ARTICLE IV.
RECORDS, REPORTS AND ACCOUNTING
RECORDS Section 4.01 See Addendum
Tenant shall keep and shall require its
subtenants and concessionaires, if any, to keep at the
Premises or at such other place as Landlord may
approve in writing, complete and accurate books of
account and records of, but not limited to, all
purchases and receipts of merchandise, inventories and
all sales and other transactions from which Tenant's
gross sales and advertising expenditures at, upon or
from the Premises can be determined. Tenant agrees to
record all sales, at the time each sale is made,
whether for cash or on credit, in a cash register(s)
containing locked-in cumulative tapes with cumulation
capacity satisfactory to Landlord or a point of sale
computer recording system, in either case with the
capacity to identify individual sales by method of
payment (cash, check or credit card). Tenant shall
keep all pertinent original sales records, which
records shall include, as applicable, (a) daily dated
register tapes; (b) serially numbered sales slips; (c)
mail and catalog orders; (d) telephone orders; (e)
settlement report sheets of transactions with
sublessees, concessionaires and licensees; (f) records
showing that merchandise returned by customers was
purchased by such customers at or from the Premises;
(g) receipts or other records of merchandise
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leased, licensed or taken out on approval; (h)
duplicate bank deposit slips and bank statements; (i)
such other records as would normally be required to be
kept and examined by an independent accountant in
accordance with accepted auditing practices in
performing an audit of Tenant's gross sales; and (j)
all income, sales and occupation tax returns. In
addition to Landlord's audit rights pursuant to
Section 4.03, Landlord may periodically conduct on-
Premises observations to confirm compliance by Tenant
with this Section. If Tenant is not in substantial
compliance, the cost of such observations shall be
reimbursed by Tenant to Landlord as additional rent.
STATEMENTS OF GROSS Section 4.02 See Addendum
SALES (a) Tenant shall submit to Landlord, on or before
the fifth (5th) day of each month, a written statement
showing in reasonable detail the gross sales in, at or
from the Premises for the preceding calendar month.
(b) Tenant shall submit to Landlord, on or before
the tenth (10th) day of the month following the end of
each lease year or partial lease year, a written
statement certified by the chief financial officer of
Tenant showing in reasonable detail the gross sales
in, at or from the Premises for such preceding lease
year or partial lease year.
(c) All statements pursuant to this Section shall
be in such form and shall contain such information as
Landlord reasonably determines. Each certification
shall be satisfactory to Landlord in scope and
substance and shall be without qualification except as
expressly permitted by Landlord.
AUDIT Section 4.03 See Addendum
(a) The acceptance by Landlord of payments of
Percentage Rent shall be without prejudice to
Landlord's right to examine Tenant's records of gross
sales and inventories of merchandise in the Premises
in order to verify the amount of Tenant's gross sales.
(b) At any reasonable time, and upon five (5) days
prior written notice to Tenant, Landlord may cause a
special audit to be made of Tenant's records relating
to the Premises for the period covered by any annual
statement of gross sales. Except as provided in (c)
below, the cost of such audit shall be paid by
Landlord. Any such special audit performed by a
certified public accountant selected by Landlord shall
be binding upon the parties.
(c) If it shall be determined as a result of such
audit that there has been a deficiency in the payment
of Percentage Rent, then such deficiency shall become
immediately due and payable with interest at the rate
per annum determined pursuant to Section 16.06 from
the date when such payment should have been made. If
the aforementioned deficiency is in excess of two
percent (2%) of the Percentage Rent theretofore
computed and paid by Tenant for the period covered by
the audit, Tenant shall also pay to Landlord the cost
of the audit. If Tenant is permitted by Landlord to
maintain its books and records with respect to the
Premises outside of Orange County, California, then
the phrase "cost of the audit" shall include the
reasonable travel, meal and lodging expenses of
Landlord's auditor(s).
ARTICLE V.
TAXES
REAL PROPERTY TAXES Section 5.01
Tenant shall pay, at the time and in the manner
specified in Article XIV, Tenant's proportionate share
of all real property taxes applicable to the Center,
including the common areas thereof. Tenant's
proportionate share of such real property taxes shall
be determined pursuant to Sections 14.04 and 14.05.
For the purposes of this Article and Article XIV, real
property taxes shall be included in common area costs.
DEFINITIONS Section 5.02 See Addendum
(a) The term "real property taxes" shall include:
(i) All taxes, assessments, license fees,
license taxes and other governmental charges and
surcharges levied upon or with respect to the real
property and improvements within the Center, including
those portions thereof defined in Section 14.01 as
"common areas";
(ii) All other taxes, assessments and other
governmental charges and surcharges levied upon or
with respect to the fixtures, equipment and other
property of Landlord in or about the Center, whether
real or personal;
(iii) Fees and assessments for any
governmental service(s) to the Center, including
service payments in lieu of taxes;
(iv) Any and all taxes payable by Landlord:
(A) upon, allocable to, or measured by or on the gross
or net rent payable hereunder, including without
limitation any gross income tax, sales tax or excise
tax levied by the state, any political subdivision
thereof, or the federal government with respect to the
receipt of such rent; (B) upon or with respect to the
possession,
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leasing, operation, management, maintenance,
alteration, repair, use or occupancy of the Premises
or any portion thereof, including any sales, use or
service tax imposed as a result thereof, (C) upon or
measured by Tenant's gross receipts or payroll or the
value of Tenant's equipment, furniture, fixtures, and
other personal property of Tenant or leasehold
improvements, alterations or additions located in the
Premises; or (D) upon this transaction or any document
to which Tenant is a party creating or transferring an
interest or an estate in the Premises; and
(v) All expenses reasonably incurred by
Landlord in seeking reduction by the taxing
authorities of the taxes described in clauses (i)
through (iv) above.
Provided, however, that the term "real property taxes"
shall not include any franchise, estate, inheritance,
succession, capital levy, net income or excess profits
taxes imposed upon Landlord, except that, if real
property taxes are withdrawn in whole or in part and
any substitute tax is made therefor, such tax shall in
any event for the purpose of this lease be considered
a tax included in "real property taxes" pursuant to
this Section 5.02, regardless of how denominated or
the source from which it is collected.
(b) For the purposes of this Section, real
property taxes which are levied on a fiscal year basis
shall be deemed to apply one-twelfth (1/12th) to each
calendar month in such fiscal year.
OTHER TAXES Section 5.03 See Addendum
Tenant shall be responsible for and shall pay
before delinquency all municipal, county, state or
federal taxes, levies, assessments and fees of every
kind and nature, including but not limited to general
or special assessments, assessed during the term of
this lease against any leasehold interest, leasehold
improvements or personal property of any kind owned by
or placed in, upon or about the Premises by Tenant or
upon Tenant's business operations in the Premises.
When possible, Tenant shall cause such personal
property and other items to be assessed and billed
separately from the Premises and the Center. If any
such taxes, levies and assessments are levied against
Landlord or the Center or if the assessed value of the
Center is increased by the inclusion therein of a
value placed upon any items described in this Section
and if Landlord pays the taxes, levies and assessments
based upon such increased assessment, which Landlord
shall have the right to do regardless of the validity
thereof, but only under proper protest if requested by
Tenant, Tenant shall upon demand repay to Landlord, as
additional rent, the taxes, levies and assessments so
levied against Landlord, or the proportion of such
taxes, levies and assessments resulting from such
increase in the assessment, together with interest
thereon from the date of payment by Landlord to the
date of reimbursement by Tenant at the rate determined
pursuant to Section 16.06. Provided, however, that in
any such event Tenant shall have the right, in the
name of Landlord and with Landlord's full cooperation
but without any cost to Landlord, to bring suit in any
court of competent jurisdiction to recover the amount
of any such taxes, levies and assessments so paid
under protest, any amount so recovered to belong to
Tenant.
ARTICLE VI.
CONDUCT OF BUSINESS BY TENANT
USE OF PREMISES Section 6.01 See Addendum
(a) Tenant shall use the Premises solely for the
use specified in the applicable Fundamental Lease
Provision, and shall not change such use except with
the prior written approval of Landlord, which Landlord
may give or withhold in its sole discretion. Tenant
shall use the Premises solely under the tradename
specified in the applicable Fundamental Lease
Provision and under no other tradename whatsoever
without the prior written consent of Landlord, which
Landlord may give or withhold in its sole discretion.
Tenant shall devote the entire Premises to such use,
except for areas reasonably required for office or
storage space uses limited to the business conducted
by Tenant in the Premises. Tenant shall continuously
and uninterruptedly during the term hereof conduct its
business activity in the Premises during all business
hours usual for Tenant's type of business, but in any
event during those minimum hours from time to time
established by Landlord for the Center, including
Sundays, unless Tenant is prevented from doing so by
strike, fire or other cause beyond Tenant's reasonable
control. Failure of any other tenant of the Center,
with or without the consent of Landlord, to observe
the minimum hours of operation established by Landlord
for the Center shall not relieve Tenant of its
obligation to observe such minimum hours or prevent
Landlord from requiring Tenant to observe such minimum
hours. Tenant shall at all times carry a full and
complete stock of merchandise offered for sale and
shall maintain an adequate staff for the service of
its customers. Tenant shall employ its best judgment,
efforts and abilities to operate the business
conducted by it in the Premises in such manner as to
produce the maximum profitable volume of sales
reasonably obtainable and to enhance the reputation
and attractiveness of the Center. Nothing herein,
however, shall be deemed to give Landlord any right of
consent or
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approval with respect to prices charged by Tenant.
(b) [Intentionally Deleted]
RESTRICTIONS ON USE Section 6.02 See Addendum
(a) Tenant shall comply promptly with all
applicable statutes, ordinances, rules, regulations,
orders and requirements regulating the use by Tenant
of the Premises and all requirements of all insurance
carriers or underwriters providing coverage on the
Center, the Premises or the contents thereof. Tenant
shall, at Tenant's expense, procure any and all
governmental licenses and permits required for
Tenant's permitted use of the Premises and shall at
all times comply with all requirements of each such
license or permit. Tenant shall not use or permit the
use of the Premises in any manner that will tend to
create a nuisance, create an ultra-hazardous use, tend
to disturb other tenants or occupants of the Center,
tend to injure the reputation of the Center or which
will invalidate any insurance maintained on the
Premises or the Center. No auction, fire sale,
bankruptcy sale, sidewalk sale, end of lease sale, or
going out of business sale shall be conducted in the
Premises, nor shall Tenant use any form of advertising
for any such sale, without the prior written consent
of Landlord, which may be withheld in Landlord's sole
discretion. Any such sale shall comply with any
reasonable conditions established by Landlord, which
conditions shall not include pricing. Tenant shall use
its best efforts to complete or cause to be completed
all deliveries, loading, unloading, rubbish removal,
and other services to the Premises prior to 10:00 a.m.
of each day and shall not permit loading, unloading or
parking of delivery vehicles in areas of the Center
other than those designated by Landlord for such
purpose. Landlord reserves the right to further
regulate the activities of Tenant in regard to
deliveries and servicing of the Premises, and Tenant
agrees to abide by such further nondiscriminatory
regulations of Landlord.
(b) Tenant shall comply at all times with the Rules
and Regulations attached to this lease as Exhibit "G"
and such amendments and modifications thereof and
additions thereto as Landlord may from time to time
reasonably adopt for the safety, care and cleanliness
of the Center or the preservation of good order
therein. Landlord shall not be liable to Tenant for
the failure of any tenant or other person to comply
with such Rules and Regulations.
(c) Without limiting the generality of the
foregoing provisions of this Section, Tenant covenants
and agrees that Tenant, its employees, agents,
contractors and other third parties entering upon the
Center at the request or invitation of Tenant shall
not bring into, maintain upon, generate, use, store,
dispose of or release or discharge in or about the
Center any hazardous or toxic substances or hazardous
waste (collectively, "hazardous materials"). The
foregoing covenant shall not extend to substances
typically found or used in general retail applications
so long as (i) such substances and any equipment which
generates such substances are maintained only in such
quantities as are reasonably necessary for Tenant's
operations in the Premises, (ii) such substances are
used and stored strictly in accordance with all
applicable laws and regulations, the manufacturers'
instructions therefor and the highest standards
prevailing in the industry for such substances, (iii)
such substances are not disposed of in or about the
Center in a manner which would constitute a release or
discharge thereof, and (iv) all such substances and
any equipment which generates such substances are
removed from the Center by Tenant upon the expiration
or earlier termination of this lease. Any use,
storage, generation, disposal, release or discharge by
Tenant of hazardous materials in or about the Center
as is permitted pursuant to this subsection shall be
carried out in compliance with all applicable federal,
state and local laws, ordinances, rules and
regulations. Moreover, no hazardous waste resulting
from any operations by Tenant shall be stored or
maintained by Tenant in or about the Center for more
than ninety (90) days prior to removal by Tenant.
Tenant shall, annually within thirty (30) days after
Tenant's receipt of Landlord's written request
therefor, provide to Landlord a written list
identifying any hazardous materials then maintained by
Tenant in the Center, the use of each such hazardous
material and the approximate quantity of each such
hazardous material so maintained by Tenant, together
with written certification by Tenant stating, in
substance, that neither Tenant nor any person for whom
Tenant is responsible has released or discharged any
hazardous materials in or about the Center.
In the event that Tenant proposes to conduct any
use or to operate any equipment which will or may
utilize or generate a hazardous material other than as
specified in the first paragraph of this subsection,
Tenant shall first in writing submit such use or
equipment to Landlord for approval. No approval by
Landlord shall relieve Tenant of any obligation of
Tenant pursuant to this subsection, including the
removal, cleanup and indemnification obligations
imposed upon Tenant by this subsection. Tenant shall,
within five (5) days after receipt thereof, furnish to
Landlord copies of all notices and other
communications received by Tenant with respect to any
actual or alleged release or discharge of any
hazardous material in or about the Premises or the
Center and shall, whether or not Tenant receives any
such notice or communication, notify Landlord in
writing of any discharge or release of hazardous
material by Tenant or anyone for whom Tenant is
responsible in or about the
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Premises or the Center. In the event that Tenant is
required to maintain any hazardous materials license
or permit in connection with any use conducted by
Tenant or any equipment operated by Tenant in the
Premises, copies of each such license or permit, each
renewal or revocation thereof and any communication
relating to suspension, renewal or revocation thereof
shall be furnished to Landlord within five (5) days
after receipt thereof by Tenant. Compliance by Tenant
with the two immediately preceding sentences shall not
relieve Tenant of any other obligation of Tenant
pursuant to this subsection.
Upon any violation of the foregoing covenants,
Tenant shall be obligated, at Tenant's sole cost, to
clean up and remove from the Center all hazardous
materials introduced into the Center by Tenant or any
person or entity for whom Tenant is responsible. Such
clean up and removal shall include all testing and
investigation required by any governmental authorities
having jurisdiction and preparation and implementation
of any remedial action plan required by any
governmental authorities having jurisdiction. All such
cleanup and removal activities of Tenant shall, in
each instance, be conducted to the satisfaction of
Landlord and all governmental authorities having
jurisdiction. Landlord's right of entry pursuant to
Section 16.02 shall include the right to enter,
inspect and test the Premises for hazardous materials
and violations of Tenant's covenants herein. If any
governmental authority or lender to Landlord shall
require testing for hazardous materials in the
Premises, then Tenant shall reimburse Landlord for all
costs of such testing upon demand as additional rent
hereunder.
Tenant shall indemnify, defend and hold harmless
Landlord, its partners, and its and their respective
successors, assigns, partners, officers, trustees,
beneficiaries, members, employees, agents, lenders and
attorneys ("Indemnified Parties") from and against any
and all claims, liabilities, losses, actions, costs
and expenses (including attorneys' fees and costs of
defense) incurred by such Indemnified Parties, or any
of them, as the result of (A) the introduction into or
about the Center by Tenant or anyone for whom Tenant
is responsible of any hazardous materials, (B) the
usage, storage, maintenance, generation, production or
disposal by Tenant or anyone for whom Tenant is
responsible of hazardous materials in or about the
Center, (C) the discharge or release in or about the
Center by Tenant or anyone for whom Tenant is
responsible of any hazardous materials, (D) any injury
to or death of persons or damage to or destruction of
property resulting from the use, introduction,
maintenance, storage, generation, disposal,
disposition, release or discharge by Tenant or anyone
for whom Tenant is responsible of hazardous materials
in or about the Center, and (E) any failure of Tenant
or anyone for whom Tenant is responsible to observe
the foregoing covenants of this subsection.
Within 180 days prior to the expiration of this
lease (or within thirty (30) days after any earlier
termination), Landlord may at its election retain a
hazardous materials consultant to conduct a survey or
audit of the Premises to determine whether or not
hazardous materials introduced by Tenant or its
agents, employees or contractors are present in or
about the Premises. Tenant shall cooperate fully with
Landlord and such consultant in the conduct of any
such survey or audit and shall reimburse Landlord, as
additional rent, for the costs and fees of such
consultant within ten (10) days after receipt of
Landlord's invoice therefor. If the audit or survey
discloses the presence of hazardous materials
introduced by Tenant or its agents, employees or
contractors, the third, fourth and sixth paragraphs of
this subsection shall apply to such hazardous
materials and Tenant's obligations with respect
thereto.
Upon any violation of the foregoing covenants,
Landlord shall be entitled to exercise all remedies
available to a landlord against a defaulting tenant,
including but not limited to those set forth in
Article XIII. Without limiting the generality of the
foregoing, Tenant expressly agrees that upon any such
violation Landlord may, at its option, (I) immediately
terminate this lease or (II) continue this lease in
effect until compliance by Tenant with its clean-up
and removal covenant, notwithstanding any earlier
expiration date of the term of this lease. No action
by Landlord hereunder shall impair the obligations of
Tenant pursuant to this subsection.
As used in this subsection, "hazardous materials"
shall include all asbestos, petroleum substances and
all hazardous materials, hazardous wastes and
hazardous or toxic substances as defined in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. (S)(S)
9601 et seq.), the Resource Conservation and Recovery
Act, as amended (42 U.S.C. (S)(S) 6901 et seq.), the
Toxic Substances Control Act, as amended (15 U.S.C.
(S)(S) 2601 et seq.) and California Health and Safety
Code Section 25316, including such hazardous or toxic
substances or wastes as are identified, defined or
listed elsewhere where such identifications,
definitions or lists are incorporated into such acts
or section by reference, as well as all products
containing such hazardous substances. By its signature
to this lease, Tenant confirms that it has conducted
its own examination of the Premises and the Center
with respect to hazardous materials and accepts the
same "AS IS" and with no hazardous materials present
thereon except as set forth in subsection (d) below.
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(d) PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE
SECTION 25915.5, LANDLORD HEREBY NOTIFIES TENANT THAT
LANDLORD HAS HAD AN ASBESTOS SURVEY PERFORMED WITH
RESPECT TO THE CENTER AND THAT ASBESTOS-BEARING
MATERIALS WERE LOCATED IN PHASE I OF THE CENTER.
DETAILED INFORMATION AS TO SUCH SURVEY, THE LOCATIONS
OF SUCH MATERIALS, ABATEMENT EFFORTS BEING CONDUCTED
BY LANDLORD AND PROCEDURES TAKEN TO AVOID RELEASE OF
SUCH MATERIALS IS SET FORTH IN EXHIBIT "C," AND TENANT
IS DIRECTED TO SUCH EXHIBIT FOR SUCH INFORMATION, FOR
CERTAIN INFORMATION AS TO POTENTIAL HEALTH RISKS
RESULTING FROM EXPOSURE TO SUCH MATERIALS AND FOR
CERTAIN NOTICE REQUIREMENTS APPLICABLE TO TENANT WITH
RESPECT TO ITS EMPLOYEES AND CONTRACTORS.
(e) Tenant acknowledges that incorporation of any
material containing asbestos into the Premises, or any
portion of Tenant's Work, is absolutely prohibited.
Tenant agrees, represents and warrants that it shall
not incorporate or permit or suffer to be
incorporated, knowingly or unknowingly, any material
containing asbestos into the Premises or Tenant's
Work.
OTHER LOCATIONS Section 6.03 See Addendum
(a) Neither Tenant nor any parent, affiliate or
subsidiary of Tenant, directly or indirectly, shall
operate, manage or have any interest in any competing
store or any Outlet Store or trunk show, each as
defined below, including a concession in another
store, located within the prohibited area. The
prohibited area shall be Orange County, California.
Landlord and Tenant acknowledge that the foregoing
restriction is reasonable in light of Tenant's ability
to draw clientele from significant distances as a
result of Tenant's extensive reputation for providing
goods and services of the highest quality. Tenant and
Landlord further acknowledge that the prohibited area
reasonably approximates the geographic area of
Tenant's anticipated clientele. Attached hereto as
Exhibits "B-1" and "B-2" are illustrations depicting,
respectively, the outside boundaries of the Center and
the prohibited area.
(b) Without limiting Landlord's remedies, if Tenant
should violate the covenant contained in this Section,
Landlord may, at its option, include the gross sales
of such competing store in the gross sales transacted
in the Premises for the purpose of computing
Percentage Rent due hereunder, as though said sales
had actually been made from the Premises. If Landlord
so elects, all the provisions of Article IV hereof
shall be applicable to all records pertaining to such
competing store or business. However, any such
competing store or business (other than a trunk show)
existing as of the date of this lease may continue to
be operated, managed, conducted and owned in the same
manner as on the date of this lease.
(c) For the purpose of this Section:
(i) A "parent" of Tenant shall be any person
or entity who or which holds, directly or indirectly,
a majority of the outstanding voting rights in or
profit and loss interests in Tenant; a "subsidiary" of
Tenant shall be any entity as to which Tenant holds,
directly or indirectly, a majority of the outstanding
voting rights in or profit and loss interests of such
entity; and an "affiliate" shall be (A) any officer,
director or general partner of Tenant, (B) any
franchisee or licensee of Tenant or any parent or
subsidiary of Tenant or of any other affiliate of
Tenant, (C) any subsidiary of any parent of Tenant,
and (D) if Tenant is a natural person, any spouse,
sibling or first generation lineal descendant of
Tenant.
(ii) A "competing store" shall be any store
operation, retail or wholesale, conducted under a
tradename which is the same as or similar to the
tradename then in use at the Premises or conducted
under a different tradename but offering for sale
merchandise or services which are substantially
similar to or the same as the merchandise or services
offered for sale at the Premises. Differences in the
prices charged at the Premises and in a competing
store for merchandise or services shall not be deemed
to make the merchandise or services at the two
locations dissimilar. A competing store shall include
any office operation or outside salesperson
established or retained to make so-called corporate
sales, "shop-in-shop" operations, Outlet Stores and
all trunk shows other than those conducted at the
Premises. For the purposes of this subsection, a
"shop-in-shop" operation shall be a portion of a store
which is devoted exclusively or substantially
exclusively to the retail sale of merchandise which is
the same as or similar to that sold in the Premises
and which is separately identified with a tradename
which is the same as or similar to that in use at the
Premises either through the use of store exterior
identification such as a separate store entrance,
separate exterior signage or a separate storefront
facade or through the use of interior physical
separation from the balance of the store (such as an
open space, wide aisle, low wall, planters, picket
fence, moat, rock formation, fountain or the like)
together with interior identification with a tradename
which is the same as or similar to that in use at the
Premises. A "trunk show" shall be a showing or sale of
lines of merchandise to be carried in the Premises
before such lines are available for sale in the
Premises and at which customers have an opportunity to
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purchase or order such merchandise.
(iii) An "Outlet Store" shall be any store for
which or as to which the owners and/or tenant thereof
advertises or promotes the store as a wholesale
outlet, factory direct store, clearance store,
discount store, seconds store, overruns store, off-
season store, value store, warehouse club store,
direct factory outlet or in any other manner which
states or suggests that the prices charged for
merchandise or services in such store are less than
the prices charged for similar merchandise or services
in the corresponding store located at the Center. An
Outlet Store need not bear the same tradename as or a
tradename similar to the tradename used, from time to
time, at the Premises so long as such store otherwise
is within the description set forth in this clause
(iii) and is owned, operated or managed by tenant or
any parent, subsidiary or affiliate of Tenant.
(iv) Nothing contained in this Section 6.03 or
elsewhere in this lease shall be deemed or construed
to prevent or restrict Landlord in leasing space in
the Center or in any other center owned by landlord or
any affiliate of Landlord to other tenants, including
one or more tenants who may, in whole or in part,
compete with Tenant at the Center. In addition,
nothing in this lease shall be deemed or construed to
constitute a warranty or commitment by Landlord as to
(and Landlord does not warrant or commit that there
will occur) any particular level of pedestrian traffic
at the Center, any particular level of tenant
occupancy or any particular tenant mix at the Center.
(d) Tenant acknowledges that Tenant's continuing
compliance with the obligations of this Section 6.03
constitutes a material economic consideration for
Landlord's agreement to enter into this lease. As a
further consideration to Landlord, Tenant agrees to
confirm its continued compliance with this Section
6.03 on an annual basis by executing and delivering to
Landlord a statement of compliance in substantially
the form of Exhibit "B-3" to this lease, within ten
(10) days after Tenant's receipt of Landlord's written
request therefor.
(e) By its execution of this lease, Tenant
represents and warrants that the execution and
delivery by Tenant hereof upon the terms described
herein will not violate the terms and provisions of
any agreement to which Tenant is a party or by which
Tenant or any of its properties are bound, including
without limitation the provisions of any radius
restriction or other prohibition or limitation on
locations of Tenant's stores.
ARTICLE VII.
MAINTENANCE, REPAIRS AND ALTERATIONS
LANDLORD'S OBLIGATIONS Section 7.01 See Addendum
Subject to the provisions of Articles IX and XI
hereof, Landlord shall during the term of this lease
keep in first-class order, condition and repair the
foundations, the interior and exterior surfaces of
exterior walls of the Center (excluding the interior
surfaces of exterior walls of premises, including the
Premises, leased to tenants), all windows, doors,
plate glass and showcases of the Center (excluding
windows, doors, plate glass and showcases located in
or comprising a part of premises, including the
Premises, leased to tenants), downspouts, gutters and
roofs of the buildings constituting the Center, except
for any damage thereto caused by any negligent act or
omission of Tenant or its agents, employees or
invitees, and except for reasonable wear and tear;
provided, however, that Landlord shall have no
obligation to repair until a reasonable time after
receipt by Landlord of written notice of the need for
repairs, which notice Tenant shall give Landlord
promptly when Tenant determines any such repairs are
required. Tenant waives the provisions of any law
permitting Tenant to make repairs at Landlord's
expense.
Landlord's costs and expenses for the foregoing
maintenance and repair, excluding partial or complete
restoration necessitated by casualty or condemnation
and paid for with insurance proceeds or an eminent
domain award, but including Landlord's cost of the
insurance provided pursuant to Section 8.03 hereof and
any deductible or reserve to be paid by Landlord in
the event of a casualty, shall be included in common
area expenses reimbursed by Tenant to Landlord
pursuant to Article XIV of this lease.
TENANT'S OBLIGATIONS Section 7.02 See Addendum
(a) Subject to the provisions of Articles IX and XI
hereof and Section 7.01, Tenant shall during the term
of this lease keep in first-class order, condition and
repair the Premises and every part thereof, including,
without limiting the generality of the foregoing, all
plumbing, heating, air conditioning, ventilating,
electrical and lighting facilities and equipment
serving solely the Premises, fixtures, interior walls
and interior surfaces of exterior walls, ceilings,
floors and floor coverings, windows, doors, plate
glass, showcases, skylights, entrances and vestibules
located within the Premises. Tenant shall paint all
painted surfaces and treat all architectural finishes
as often as may be required to maintain such surfaces
and finishes in a first class condition.
(b) If Tenant fails to perform its obligations
under this Section 7.02, Landlord may at
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its option, if such failure continues after five (5)
days written notice to Tenant, enter upon the Premises
and put the same in good order, condition and repair
and the cost thereof shall become due and payable as
additional rent by Tenant to Landlord upon demand.
(c) On the last day of the term hereof, or on any
sooner termination, Tenant shall surrender the
Premises to Landlord in good condition, reasonable
wear and tear, damage by fire, the elements or any
other cause beyond the control of Tenant and for which
this lease is terminated pursuant to Article IX
excepted.
ALTERATIONS AND Section 7.03 See Addendum
ADDITIONS (a) Tenant shall not, without the prior written
consent of Landlord, make any alterations,
improvements, remodeling or additions to either the
interior or exterior of the Premises or to fixtures
installed therein in accordance with approved fixture
plans, or mark, paint, drill or in any way deface any
portion of the Premises. All alterations,
improvements, remodeling and additions shall be
subject to the provisions of Sections 6.02 and 16.16,
Article XVII, all plans and specifications therefor
approved by Landlord and Exhibits "C," "E" and "F"
hereto.
(b) All alterations, improvements, remodeling,
additions and fixtures, other than trade fixtures not
permanently affixed to the Premises, which may be made
or installed in the Premises and which are attached to
the floor, walls or ceiling of the Premises and any
floor covering which is cemented or otherwise affixed
to the floor of the Premises, shall be the property of
Landlord and shall remain upon and be surrendered with
the Premises at the expiration or termination of this
lease, unless Landlord shall direct Tenant to remove
such items, or some of them, by written notice given
to Tenant not less than thirty (30) days prior to the
expiration of this lease or within ten (10) days after
the earlier termination hereof. All such alterations,
additions and improvements shall, however, be made by
Tenant at Tenant's sole expense. Tenant shall remove
any items which Tenant is permitted or required to
remove, at Tenant's cost, prior to the expiration of
this lease, or in the event of an early termination,
within fifteen (15) days after Landlord's notice.
Within thirty (30) days after Tenant opens for
business in the Premises, Tenant shall deliver to
Landlord an inventory or listing of the furniture,
furnishings, equipment and trade fixtures installed by
Tenant in the Premises which (i) Tenant believes are
not permanently attached to the Premises and (ii)
Tenant proposes to remove from the Premises upon the
expiration or any earlier termination of this lease.
Similarly, within thirty (30) days after any
remodeling or renovation of the Premises by Tenant,
Tenant shall deliver to Landlord a written supplement
to such inventory listing any additions to the
original inventory delivered by Tenant. Within thirty
(30) days after Landlord's receipt of any such
inventory (or supplement thereto), Landlord may, by
written notice to Tenant, delete from such inventory
or supplement one or more items which Landlord, in
good faith, determines are not items which may be
removed by Tenant pursuant to the provisions of this
subsection. In the event of any dispute between
Landlord and Tenant as to whether a particular item(s)
is removable by Tenant pursuant to this subsection,
the reasonable determination in good faith by
Landlord's construction coordinator shall be
conclusive upon the parties. If Tenant fails to
deliver to Landlord any listing or inventory required
pursuant to this subsection, then upon the expiration
or any earlier termination of this lease Tenant shall
be entitled to remove from the Premises only Tenant's
merchandise, unattached furniture and furnishings and
unattached miscellaneous personal property in the
Premises.
(c) [Intentionally Deleted]
CLEANLINESS; WASTE AND Section 7.04
NUISANCE Tenant shall keep the Premises at all times in a
neat, clean and sanitary condition, shall neither
commit nor permit any waste or nuisance thereon, and
shall keep the walks and corridors adjacent thereto
free from Tenant's waste or debris.
HEALTH MATTERS Section 7.05 See Addendum
If Tenant's permitted use of the Premises pursuant
to the applicable Fundamental Lease Provision or any
addendum to this lease includes the sale or
preparation of food, then the following provisions
shall apply. Further, the last two sentences of
subsection (a), the last two sentences of subsection
(b) and subsections (c), (d), (e) and (f) shall apply
to all tenants other than those involved in the sale
or preparation of food:
(a) Tenant shall, at its own cost, retain a
licensed, bonded professional pest and sanitation
control service to perform inspections of the Premises
not less frequently than once each thirty (30) days
for the purpose of eliminating infestations by and
controlling the presence of insects, rodents and
vermin and shall promptly cause any corrective or
extermination work recommended by such service to be
performed. Such work shall be performed pursuant to a
written contract, and a copy thereof shall be
delivered to Landlord by Tenant upon demand. If Tenant
fails
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to perform its obligations under this Section 7.05,
Landlord may, at its option and after five (5) days
written notice to Tenant, cause such inspection to be
performed and any necessary corrective or
extermination work which is recommended to be done and
the cost of such inspection and corrective or
extermination work shall be additional rent payable
upon demand. In addition, Landlord may elect to
provide the services specified in this subsection to
tenants other than those engaged in the sale or
preparation of food. In such event, the cost of
providing such services shall be included in common
area costs pursuant to Article XIV charged to those
tenants for whom Landlord provides such services.
(b) Tenant acknowledges that Health Department
requirements and Landlord's construction requirements
may require that Tenant (i) enlarge the sanitary sewer
line from the Premises to the main sewer line and (ii)
install a grease trap in the sanitary sewer line of
the Premises. Tenant acknowledges that it shall, if
required and as a part of Tenant's Work pursuant to
Article XVII, enlarge such sewer line and install such
grease trap and shall, during the term of this lease,
clean and maintain such grease trap as a part of
Tenant's obligations pursuant to Section 7.02 in such
manner as may be required by the Health Department,
other governmental authorities having jurisdiction, or
Landlord. Moreover, all exhaust hoods, ducts and
mechanical equipment shall be inspected, cleaned and
maintained not less frequently than quarterly. Such
work shall be performed by a licensed, bonded
professional maintenance company retained and paid for
by Tenant, and a copy of the report prepared by such
company shall be delivered to Landlord upon
completion.
(c) Tenant shall store all waste and garbage in a
refrigerated or cool and dry location within the
Premises and shall dispose of all waste and garbage
(including wet garbage and food) only in trash
containers placed in service areas by Landlord for
such purpose. All liquids shall be disposed of into
the sanitary sewer line and not in Landlord's trash
containers. Tenant shall not accumulate or permit such
materials to accumulate in hallways, service corridors
or other common areas. Any waste or garbage, and any
food deliveries, stored or accumulated by Tenant
outside of the Premises (other than garbage placed in
Center trash containers) may be removed immediately by
Landlord without notice to Tenant and the cost of such
removal, together with $50.00 per occurrence to cover
Landlord's administrative expense in providing such
service to Tenant, shall be administrative rent
payable by Tenant to Landlord upon demand.
(d) Without limiting any other obligation of Tenant
pursuant to this Section, Tenant shall comply with all
governmental laws, ordinances, regulations, guidelines
and rules and with all voluntary programs adopted by
Landlord now or hereafter applicable to the Premises
with respect to disposal of water, trash, garbage and
other matter (liquid or solid) generated by Tenant,
including but not limited to laws, ordinances,
regulations, guidelines, rules and voluntary programs
with respect to recycling and other forms of
reclamation (collectively, "Waste Management
Requirements"). Tenant's obligations hereunder shall
include compliance with all rules and regulations
established by Landlord from time to time to comply
with governmental Waste Management Requirements
applicable to Landlord (i) as owner of the Premises
and (ii) in performing Landlord's obligations under
this lease, if any. Tenant's obligations under this
subsection shall survive the expiration or earlier
termination of this lease.
(e) Tenant shall comply with all Health Department
and other governmental rules and regulations
applicable to Tenant's operations in the Premises and
shall promptly (i) furnish or cause to be furnished to
Landlord copies of all Health Department and other
governmental reports, notices and citations issued
with respect to the Premises and (ii) cure or
otherwise eliminate all deficiencies and violations
noted by the Health Department and other governmental
authorities and take all required actions to prevent
the reoccurrence of such deficiencies and violations.
(f) Failure of Tenant to perform any obligation
pursuant to subsections (a) through (e) above shall be
deemed an event of default pursuant to this lease
entitling Landlord to exercise all remedies available
to a landlord against a defaulting tenant, including
those provided for in Article XIII of this lease.
ARTICLE VIII.
INSURANCE; INDEMNITY
LIABILITY Section 8.01 See Addendum
INSURANCE-PREMISES Tenant shall at all times during the term hereof and
at Tenant's cost, for the protection of Tenant and
Landlord, as their interests may appear, maintain in
full force and effect a policy or policies of
insurance which afford the following coverages:
(a) Worker's Compensation in the statutorily
required amount, together with employer's liability
coverage in a liability amount not less than
$1,000,000 per occurrence.
(b) Commercial General Liability Insurance with an
aggregate liability amount not less than $3,000,000
combined single limit for both bodily injury and
property damage, including
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blanket contractual liability (including Tenant's
indemnification obligation under Section 8.06), broad
form property damage, personal injury, completed
operations, products liability, host liquor liability
(or liquor liability, if applicable), owned and non-
owned automobile coverage and acts or omissions of any
security guards hired by Tenant. At least $1,000,000
of such coverage shall be provided by a primary
liability policy, and any balance may be provided by a
so-called umbrella policy. The liability insurance
policy required to be maintained by Tenant pursuant to
this clause shall be on an occurrence (as opposed to a
claims made) basis. Further, if such policy has an
aggregate liability limit, not less than $3,000,000 of
such limit per annum shall be available for claims
originating at the Premises.
The minimum limit of the coverage provided in
clause (b) above may be adjusted upward or downward at
the expiration of each third (3rd) lease year as
follows: Not less than sixty (60) days prior to the
relevant adjustment date, Landlord may request such
insurance brokerage firm as is then placing insurance
for Landlord (the "Reviewing Broker") to review
Tenant's then existing liability insurance coverage,
to review the then use of the Premises and the claims
history with respect thereto and to recommend, in
writing, the amount of coverage to be carried by
Tenant pursuant to clause (b). Such recommendation
shall be based upon the use of the Premises and the
liability claims history with respect to the Premises
and shall be consistent with amounts of coverage
generally recommended by such Reviewing Broker for
similar types of tenants or users of property with
uses similar to that of the Premises in the
geographical area which includes the Center. If the
Reviewing Broker shall recommend an increase in the
amount of coverage then provided by Tenant under
clause (b), Tenant shall promptly increase its
coverage to the recommended amount. In no event shall
there be any reduction in the amount of coverage
provided by Tenant under clause (b) to less than the
initial amount set forth herein, notwithstanding any
recommendation by the Reviewing Broker.
Landlord, and any other persons designated by
Landlord and having an insurable interest in the
Premises, shall be added as additional insureds
pursuant to such policies (although they shall not
have any obligations of "named" insureds therein). The
insurance required by this Section shall be the
primary insurance as respects Landlord (and any other
additional insureds designated by Landlord) and not
contributory with any other available insurance. The
policy or policies providing the coverage required by
clause (b) above shall contain an endorsement
providing, in substance, that "such insurance as is
afforded hereby for the benefit of [Landlord and any
additional insureds designated by Landlord] shall be
primary and any insurance carried by [Landlord and any
additional insureds designated by Landlord] shall not
be contributory." In addition, such policy shall
contain a cross-liability endorsement in favor of the
additional insureds. In no event shall the limits of
any coverage maintained by Tenant pursuant to this
Section be considered as limiting the liability of
Tenant pursuant to this lease.
FIRE Section 8.02 See Addendum
INSURANCE-FIXTURES, (a) Tenant shall at all times during the term
EQUIPMENT AND TENANT hereof, and at its cost, maintain in effect policies
IMPROVEMENTS of insurance covering (i) all tenant improvements on
or in the Premises, providing protection against any
peril included within the classification "All Risk,"
including but not limited to insurance against fire,
windstorm, cyclone, tornado, hail, explosion, riot,
riot attending a strike, civil commotion, aircraft,
vehicles, smoke damage, sprinkler leakage, vandalism
and malicious mischief, such insurance to be in an
amount not less than the full replacement value of
such improvements, which shall be determined at the
time the policy is initially obtained, and not less
frequently than once every three (3) years thereafter,
and such other insurance as may be required by
Landlord's lender; (ii) all personal property of
Tenant located in or on the Premises, including but
not limited to fixtures, furnishings, equipment,
furniture, inventory and stock in trade, in an amount
not less than their full replacement value, providing
protection against any peril included within the
classification "All Risk," including but not limited
to insurance against fire, sprinkler leakage,
vandalism and malicious mischief, and (iii) all plate
glass on the Premises. The insurance required by this
subsection shall be the primary insurance with respect
to the property covered thereby.
(b) [Intentionally Deleted]
(c) [Intentionally Deleted]
LANDLORD'S INSURANCE Section 8.03 See Addendum
Landlord shall at all times during the term hereof
maintain in effect a policy or policies of insurance
covering the Center, including Landlord's interest in
all tenant improvements in the Premises paid for by
Landlord, providing protection against any peril
included within the classification "All Risk,"
together with insurance against sprinkler leakage,
vandalism and malicious mischief. If and for so long
as Landlord so elects, the coverages maintained by
Landlord
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shall include (a) earthquake and flood insurance with
respect to the Center, Landlord's interest in all
tenant improvements in the Premises and the items
described in clauses (i) and (iii) of Section 8.02(a),
(b) rental interruption insurance assuring that the
rent due under this lease will be paid to Landlord for
a period of not less than twelve (12) months if the
Premises are destroyed or rendered inaccessible by a
risk insured against under the coverages described
herein and in Section 8.02(a) and (c) comprehensive
general liability insurance with liability amounts
selected by Landlord. Landlord's cost of maintaining
such insurance and any other insurance maintained by
Landlord with respect to the Center, including the
cost of funding all deductibles and self-insurance
reserves maintained by Landlord or required by its
carrier in connection with the coverages maintained by
Landlord, shall be included in common area costs
pursuant to Article XIV. Tenant shall have no rights
in any policy or policies maintained by Landlord.
INSURANCE POLICIES Section 8.04 See Addendum
All insurance required to be carried by Tenant
hereunder shall be with companies rated A:VIII, or
better, in the then most recent version of Best's Key
Rating Guide and licensed or otherwise permitted to
provide the relevant insurance in the State of
California. Tenant shall deliver to Landlord on or
prior to the date possession of the Premises is
delivered to Tenant, and thereafter at least thirty
(30) days prior to the expiration or renewal date of
any policy maintained by Tenant, copies of the
policies or certificates evidencing such insurance.
All policies and certificates delivered pursuant to
this Section shall contain liability limits not less
than those set forth in Sections 8.01 and 8.02, shall
list the additional insureds, shall specify all
endorsements and special coverages required by such
Sections and shall be effective on or before the
possession date or prior policy expiration, as
applicable. Each such policy shall contain provisions
(by endorsement or otherwise) requiring not less than
thirty (30) days written notice to Landlord prior to
any cancellation, non-renewal or material amendment
thereof and requiring that the proceeds of the
insurance maintained pursuant to clauses (i) and (iii)
of Section 8.02(a) shall be payable to Landlord. For
the purposes of this Article VIII, the phrase "term of
this lease" shall mean the period from the Lease
Commencement Date through the later of the expiration
or termination of the lease term or the date Tenant
surrenders physical possession of the Premises to
Landlord. Any insurance required pursuant to this
lease may be provided by means of a so-called
"blanket" policy, so long as the Premises are
specifically covered (by rider, endorsement or
otherwise) and the policy otherwise complies with the
provisions of this lease, without reduction or
diminution due to use of such blanket policy. If on
account of the failure of Tenant to comply with any
provision of this Article, Landlord or any additional
insured is adjudged a co-insurer by its insurance
carrier, then any loss or damage Landlord or such
additional insured shall sustain by reason thereof
shall be borne by Tenant and shall be paid by Tenant
upon receipt of a bill therefor and evidence of such
loss. If Tenant shall fail to deliver to Landlord a
certificate of renewal at least ten (10) days prior to
the expiration date of any insurance policy required
to be maintained by Tenant, Landlord may place such
insurance for Tenant pursuant to Section 13.06.
WAIVER OF SUBROGATION Section 8.05 See Addendum
Landlord and Tenant each hereby waives any and all
rights of recovery against the other, and against any
other tenant or occupant of the Center and against the
officers, employees, agents, representatives,
customers and business visitors of such other party
and of each such other tenant or occupant of the
Center, for loss of or damage to such waiving party or
its property or the property of others under its
control, arising from any cause insured against under
any policy of insurance required to be carried by such
waiving party pursuant to the provisions of this lease
(or any other policy of insurance carried by such
waiving party in lieu thereof) at the time of such
loss or damage. The foregoing waiver shall be
effective whether or not a waiving party actually
obtains and maintains the insurance which such waiving
party is required to obtain and maintain pursuant to
this lease (or any substitute therefor). Landlord and
Tenant shall, upon obtaining the policies of insurance
which they are required to maintain hereunder, give
notice to their respective insurance carrier or
carriers that the foregoing mutual waiver of
subrogation is contained in this lease.
INDEMNITY Section 8.06 See Addendum
To the fullest extent permitted by law, Tenant
shall indemnify, defend and hold the Indemnified
Parties harmless from and against any liability or
expense (including but not limited to attorneys' fees
and costs of defense) for any damage or injury to
persons or property in or about the Center which may
result from the use or occupation of the Premises by
or the breach of the provisions of this lease by
Tenant, its agents, employees, invitees, licensees,
concessionaires or other persons claiming under
Tenant. In addition, if any person not a party to this
lease shall institute any other type of action against
Tenant in which any Indemnified Party, involuntarily
and without cause, shall be made a party defendant,
Tenant shall indemnify, hold harmless and defend such
Indemnified Party from all liability by reason
thereof. All indemnification covenants are
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intended to apply to losses, damages, injuries and
claims incurred directly by the Indemnified Parties
and their property, as well as by the Indemnifying
Party or a third party, and their property. It is
understood and agreed that payment shall not be a
condition precedent to enforcement of the foregoing
indemnification obligations. Tenant's defense
obligation hereunder shall include the obligation,
upon demand, to defend each Indemnified Party against
any claim or action of the types herein specified by
legal counsel reasonably satisfactory to Landlord.
Provided, however, that the foregoing shall not extend
to any damage or injury which Tenant establishes in a
court of competent jurisdiction was solely and
proximately caused by the negligence of Landlord, its
agents or employees.
EXEMPTION OF LANDLORD Section 8.07 See Addendum
The Indemnified Parties shall not be liable for
injury or damage which may be sustained by the person,
goods, wares, merchandise or property of Tenant,
Tenant's employees, invitees or customers or any other
person in or about the Premises caused by or resulting
from any peril which may affect the Premises,
including but not limited to fire, steam, electricity,
gas, water or rain, which may leak or flow from or
into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures of the same, whether
such damage or injury results from conditions arising
upon the Premises or upon other portions of the
building of which the Premises are a part, or from
other sources. The Indemnified Parties shall not be
liable for any damage arising from any act or neglect
of any other tenant of the Center, or any of their
officers, employees, agents, representatives,
customers, business visitors or invitees. Provided,
however, that the foregoing shall not apply to any
damage or injury which Tenant establishes in a court
of competent jurisdiction was solely and proximately
caused by the negligence of Landlord, its agents or
employees.
LANDLORD'S SECURITY Section 8.08 See Addendum
Landlord may, but shall have no obligation to, from
time to time, employ one or more persons or entities
to patrol or provide security for the common areas.
Tenant and its employees shall cooperate with
Landlord's security personnel, including those
providing common area security for employees after
closure of Center stores. Notwithstanding any such
activity, Tenant shall have the sole responsibility of
providing security for the Premises, the persons
therein and all vehicles of Tenant and Tenant's
employees. Under no circumstances shall the
Indemnified Parties be liable to Tenant or to any
other person by reason of any theft, burglary,
robbery, assault, trespass, unauthorized entry,
vandalism, or any other act of any third person
occurring in or about the Premises. Tenant shall
indemnify, defend and hold all Indemnified Parties
harmless from and against any and all losses,
liabilities, judgments, costs and expenses (including
but not limited to reasonable attorneys' fees and
other costs of investigation or defense) which such
Indemnified Parties may suffer by reason of any claim
asserted by any person arising out of, or related to,
any of the foregoing. To the extent Landlord elects to
provide such patrol or security services, the cost
thereof shall be included in common area costs
pursuant to Section 14.04 hereof.
TENANT'S SECURITY Section 8.09
Tenant shall be solely responsible to purchase,
install, maintain and replace all security devices and
features required by Tenant for the Premises,
including but not limited to solid storefronts, solid
grilles, locks, burglar and other alarms and sensory
systems. All such features and items shall be subject
to written approval of Landlord prior to construction
or installation, which approval shall be limited to
aesthetics and non-interference of such items with
systems and devices maintained by Landlord for the
Center. All such features, systems and other security
items shall comply with all applicable governmental
requirements and all applicable provisions of this
lease and Exhibits "C" and "E" hereto. Tenant shall be
responsible to provide any employee safety courses
deemed necessary by Tenant and shall cooperate with
and require its employees to attend any such courses
furnished by or through Landlord.
ARTICLE IX.
REPAIRS AND RESTORATION
INSURED OR MINOR DAMAGE Section 9.01
Subject to the provisions of Sections 9.03 and
9.04, if at any time during the term hereof the
Premises are destroyed or damaged and either (a) such
damage is not "substantial" as that term is
hereinafter defined, or (b) such damage was caused by
a casualty required to be insured against under
Sections 8.02 and 8.03, then Landlord shall promptly
repair such damage to portions of the
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Center located outside of the exterior boundaries of
the Premises, Tenant shall repair the Premises and
this lease shall continue in full force and effect.
MAJOR DAMAGE TO Section 9.02 See Addendum
PREMISES Subject to the provisions of Sections 9.03 and
9.04, if at any time during the term hereof the
Premises are destroyed or damaged and if such damage
is "substantial" as that term is hereinafter defined,
and if such damage was caused by a casualty not
required to be insured against under Sections 8.02 and
8.03, then Landlord may at its option either (a)
promptly conduct the repair to be made by Landlord
pursuant to Section 9.01 and this lease shall continue
in full force and effect, or (b) terminate this lease
as of the date of Landlord's notice, by giving Tenant
written notice of its election to do so within thirty
(30) days after the date of occurrence of such damage.
If Landlord elects to repair pursuant to clause (a),
Tenant shall also repair pursuant to Section 9.01.
MAJOR DAMAGE TO CENTER Section 9.03 See Addendum
In the event that premises in the Center
aggregating twenty-five percent (25%) or more of the
total Floor Area of all buildings within the Center
leased or offered for lease to tenants (other than
tenant owned buildings) shall be damaged or destroyed,
whether or not the Premises are damaged or destroyed,
Landlord may, at Landlord's option, terminate this
lease by giving written notice to Tenant of Landlord's
election to do so within sixty (60) days after the
date of occurrence of such damage, in which event this
lease shall terminate on the date such notice is
given. If Landlord does not terminate pursuant to this
Section, then each party shall repair pursuant to
Section 9.01.
DAMAGE NEAR END OF TERM Section 9.04 See Addendum
If the Premises are destroyed or damaged during the
last twenty-four (24) months of the term of this lease
and the estimated cost of repair exceeds ten percent
(10%) of the Minimum Rent then remaining to be paid by
Tenant for the balance of the term, Landlord may at
its option terminate this lease as of the date of
Landlord's notice by giving written notice to Tenant
of its election to do so within thirty (30) days after
the date of occurrence of such damage. If Landlord
shall not so elect to terminate this lease, the repair
of such damage shall be governed by Sections 9.01,
9.02 or 9.03, as the case may be.
ABATEMENT OF RENT; Section 9.05 See Addendum
REMEDIES FOR (a) If the Premises or the Center are destroyed or
NON-PERFORMANCE damaged and Landlord is required to or elects to
repair or restore pursuant to the provisions of this
Article, Tenant shall continue the operation of its
business in the Premises to the extent reasonably
practicable from the standpoint of prudent business
management. The Minimum Rent, Percentage Rent and
additional rent payable hereunder shall be abated in
proportion to the degree to which Tenant's use of the
Premises is impaired for the period from the date of
the casualty until the earlier of the 60th day
following completion of any work by Landlord (or the
casualty if there is no work by Landlord) or
completion of all repair and restoration of the
Premises, but only to the extent that Landlord is
compensated for such loss by the insurance carried
pursuant to Section 8.03. Neither such abatement, nor
any other abatement of rent pursuant to this lease,
shall defeat or diminish any right of Landlord to
recover the proceeds of any rental interruption
insurance maintained by Landlord. Tenant shall have no
claim against the Indemnified Parties for any damage
suffered by Tenant by reason of any such damage,
destruction, repair or restoration. Tenant waives the
provisions of Civil Code Sections 1932(2) and 1933(4)
and any present or future laws or case decisions to
the same effect. Upon completion of such repair or
restoration, Tenant shall promptly refixture and
restock the Premises substantially to the condition
prior to the casualty and shall reopen for business if
closed by the casualty.
(b) If either party shall be obligated to repair or
restore under the provisions of this Article and shall
not commence such repair or restoration within thirty
(30) days after such obligation shall accrue, the
other may at its option terminate this lease as of the
date of written notice by giving to the non-performing
party written notice of its election to do so at any
time after the expiration of such thirty (30) day
period and prior to the commencement of such repair or
restoration. Landlord's obligation shall be deemed to
accrue on the later of (i) receipt by Landlord of any
governmental permit or approval necessary to commence
such work and (ii) settlement of any insurance claim
with respect to such casualty. The restoration
obligations of Tenant shall be deemed to accrue upon
completion by Landlord of so much of Landlord's work
as is reasonably necessary for Tenant to commence
Tenant's work and shall include repair, restoration or
replacement of Tenant's equipment and personal
property. If the parties are required to or elect to
repair or restore pursuant to this Article, then each
party shall be entitled to the proceeds of the
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insurance maintained pursuant to Sections 8.02 and
8.03 as pertain to the improvements to be repaired or
restored by it.
DEFINITIONS Section 9.06
(a) For the purposes of this Article, "substantial"
damage to the Premises shall be deemed to be damage to
the Premises, the estimated cost of repair of which
exceeds one fifth (1/5) of the then-estimated
replacement cost of the Premises.
(b) The determination in good faith by Landlord of
the estimated cost of repair of any damage and/or of
the estimated replacement cost of the Premises shall
be conclusive for the purposes of this Article.
ARTICLE X.
ASSIGNMENT AND SUBLETTING
LANDLORD'S RIGHTS Section 10.01 See Addendum
(a) Tenant shall not, either voluntarily or by
operation of law, assign, sell, encumber, pledge,
grant any profit or other interest in or otherwise
transfer all or any part of Tenant's leasehold estate
hereunder, or permit the Premises to be occupied by
anyone other than Tenant or Tenant's employees or
sublet, license or grant concessions with respect to
the Premises or any portion thereof, without
Landlord's prior written consent in each instance,
which consent may be given or withheld by Landlord in
its sole and absolute discretion for any reason deemed
sufficient by Landlord and without reference to any
standard of reasonableness. Such consent and other
matters related to any assignment or subletting shall
be in accordance with the provisions of subsections
(b) through (i) below. Consent by Landlord to one or
more assignments of this lease, to one or more
sublettings of the Premises or to any other event
requiring the consent of Landlord shall not operate to
exhaust Landlord's rights under this Section. The
voluntary or other surrender of this lease by Tenant
or a mutual cancellation hereof shall not work a
merger, and shall, at the option of Landlord,
terminate all or any existing subleases or
subtenancies or shall, at Landlord's option, operate
as an assignment to Landlord of such subleases or
subtenancies. If Tenant is a corporation whose capital
stock is not traded on a national securities exchange,
or is an unincorporated association or partnership,
the transfer, assignment, hypothecation or new
issuance of any stock or interest in such corporation,
association or partnership in the aggregate in excess
of twenty-five percent (25%) of the total outstanding
prior to such event shall be deemed an assignment
within the meaning and provisions of this Article.
In connection with any request for Landlord's
consent pursuant to this Section, Tenant shall pay to
Landlord the sum of (i) One Thousand Five Hundred
Dollars ($1,500.00) plus (ii) all attorneys' fees and
other out-of-pocket costs incurred by Landlord in
responding to such request. Tenant shall deposit with
Landlord the sum of Two Thousand Five Hundred Dollars
($2,500.00) concurrently with Tenant's delivery of the
information required under subsection (b) below, and
Landlord's obligation to respond to such request shall
not commence unless and until Landlord shall also
receive said deposit. One Thousand Five Hundred
Dollars ($1,500.00) of such deposit shall be non-
refundable; Landlord may use or apply the $1,000.00
balance of such deposit against actual out-of-pocket
costs and expenses, including actual attorneys' fees
and costs, incurred by Landlord in processing and
documenting such request or against any other amounts
owed by Tenant to Landlord at the conclusion of such
request, and the balance, if any, of such $1,000.00
shall be returned to Tenant. Landlord shall not be
required to keep this deposit separate from its
general funds and Tenant shall not be entitled to
interest on the deposit. In the event that actual
costs and expenses incurred by Landlord in responding
to Tenant's request exceed $1,000.00, Tenant shall pay
such excess amount to Landlord within ten (10) days
after Landlord's demand therefor. Any such excess
shall be deemed additional rent pursuant to this
lease, and may be recovered in any unlawful detainer
or other action instituted by Landlord upon any
default by Tenant as rent, whether or not included in
any notice given to Tenant by Landlord prior to or as
a condition to the institution of such action.
(b) If Tenant desires at any time to assign this
lease or to sublet the Premises or any portion thereof
or to engage in any other transaction described in
subsection (a), it shall first notify Landlord in
writing of its desire to do so and shall submit in
writing to Landlord (i) the name of the proposed
subtenant or assignee; (ii) the nature of the proposed
subtenant's or assignee's business to be carried on in
the Premises and the tradename under which the
proposed subtenant or assignee proposes to operate in
the Premises; (iii) the terms and provisions of the
proposed sublease or assignment and the proposed
effective date thereof, including a copy of any
agreement, escrow instructions or other document which
contains or memorializes such terms and provisions,
and the information required by subsection (e) below;
and (iv) such reasonable financial information as
Landlord may request concerning the proposed subtenant
or assignee, including but not limited to a
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balance sheet of the proposed subtenant or assignee as
of a date within ninety (90) days prior to the request
for Landlord's consent, statements of income or profit
and loss of the proposed subtenant or assignee for the
two-year period preceding the request for Landlord's
consent and a written statement in reasonable detail
as to the business and retail merchandising experience
of the proposed subtenant or assignee during the five
(5) years preceding the request for Landlord's
consent.
(c) At any time within thirty (30) days after
Landlord's receipt of the information specified in
subsection (b), Landlord may, by written notice to
Tenant, elect to (i) consent to the subletting or
assignment upon the terms and to the subtenant or
assignee proposed; (ii) refuse to give its consent,
specifying the reason(s) therefor; or (iii) sublease
the Premises or the portion proposed to be subleased
or take an assignment of Tenant's leasehold estate
hereunder upon the same terms (excluding terms
relating to the purchase of stock, the use of Tenant's
name or the continuation of Tenant's business) as
those offered to the proposed subtenant or assignee,
as the case may be. If Landlord elects to proceed
pursuant to clause (iii) above, any payment by
Landlord to Tenant pursuant to such clause shall not
exceed the amount which Tenant would have received
pursuant to subsection (e) below if Landlord had
elected to proceed pursuant to clause (i) above. If
Landlord takes an assignment or sublets with respect
to the entire Premises, this lease shall be terminated
with respect to the entire Premises and the term shall
end on the date stated in Tenant's notice as the
effective date of the proposed sublease or assignment
as if that date had been originally fixed in this
lease for the expiration of the term. If Landlord
recaptures only a portion of the Premises, the Minimum
Rent and additional rent during the unexpired term
shall be reduced in proportion to the Floor Area
recaptured by Landlord. Tenant shall, at Tenant's own
cost and expense, discharge in full any commissions
which may be due and owing as a result of any proposed
assignment or subletting, whether or not the Premises
are recaptured pursuant hereto and rented by Landlord
to the proposed tenant or any other tenant.
(d) Landlord shall have the right to approve or
disapprove any proposed assignee, sublessee or other
transferee pursuant to subsection (a) above, which
approval shall be subject to the sole and absolute
discretion of Landlord. In exercising such right of
approval or disapproval, Landlord shall be entitled to
take into account any fact or factor which Landlord
deems relevant to such decision. Moreover, Landlord
shall be entitled to be satisfied that each and every
covenant, condition and obligation imposed upon Tenant
by this lease and each and every right, remedy and
benefit afforded Landlord by this lease is not
impaired or diminished by such assignment, subletting
or other transfer. In no event shall there be any
change in the tradename in use at the Premises or any
substantial change in the use of the Premises in
connection with any assignment, subletting or other
transfer except as expressly approved in writing by
Landlord in advance. Landlord and Tenant acknowledge
that the provisions set forth in this lease dealing
with assignment, subletting and other transfers,
including those set forth in subsections (c), (d), (e)
and (f), have been freely negotiated and are
reasonable at the date hereof taking into account
Tenant's proposed use of the Premises and the nature
and quality of the Center. No withholding of consent
by Landlord for any reason deemed sufficient by
Landlord shall give rise to any claim by Tenant or any
proposed assignee, subtenant or transferee or entitle
Tenant to terminate this lease or to any abatement of
rent. Approval of any assignment of Tenant's interest
shall, whether or not expressly so stated, be
conditioned upon such assignee assuming in writing all
obligations of Tenant hereunder by a written
instrument satisfactory to Landlord.
(e) In connection with any assignment, subletting
or other transfer, Landlord shall be entitled to
receive, in the case of a subletting or transfer other
than an assignment, all rent (however denominated and
paid) payable by the subtenant or transferee to Tenant
in excess of that payable by Tenant to Landlord
pursuant to the other provisions of this lease and, in
the case of an assignment, all consideration given,
directly or indirectly, by the assignee to Tenant in
connection with such assignment and allocable to
Tenant's leasehold estate, and Landlord shall be
entitled to increase the monthly Minimum Rent to the
then fair market rental value of the Premises. The
determination of fair market rental value shall be
based upon the then highest and best use of the
Premises, notwithstanding any use restrictions
contained in this lease. For the purposes of this
subsection, the term "rent" shall mean all
consideration paid or given, directly or indirectly,
for the use of the Premises or any portion thereof.
The term "consideration" shall mean and include money,
services, property and any other thing of value such
as payment of costs, cancellation of indebtedness,
discounts, rebates and the like. "Sublet" and
"sublease" shall include a sublease as to which Tenant
is sublessor and any sub-sublease or other sub-
subtenancy, irrespective of the number of tenancies
and tenancy levels between the ultimate occupant and
Landlord, and as to which Tenant receives any
consideration, as defined in this subsection. Tenant
shall require on any sublease which it executes that
Tenant receive the profit from all sub-subtenancies,
irrespective of the number of levels thereof. Any rent
or other consideration which is to be passed through
to Landlord by Tenant pursuant to this subsection
shall be paid to Landlord promptly upon receipt by
Tenant and shall be
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paid in cash, irrespective of the form in which
received by Tenant from any subtenant or assignee. In
the event that any rent or other consideration
received by Tenant from a subtenant or assignee is in
a form other than cash, Tenant shall pay to Landlord
in cash the fair market value of such consideration.
Landlord and Tenant agree that the payment required by
this subsection represents payment for Landlord's
property rights in and to the leasehold estate hereby
created.
The information to be supplied to Landlord under
subsection 10.01(b) shall include an itemized
statement of all rent and consideration (whether for
the use of the Premises, the leasehold estate,
leasehold improvements, furniture, fixtures and
equipment, inventory, franchises, licenses or
otherwise) to be paid to Tenant in connection with the
assignment, subletting or other transfer. Such
statement shall allocate the total to be paid to
Tenant among all such items as reasonably agreed by
Tenant and Tenant's assignee, subtenant or transferee,
and such allocations shall be subject to the review
and approval of Landlord. If Tenant and Landlord
cannot agree as to the amount to be allocated for the
use of the Premises or the leasehold estate, which
amount shall belong to Landlord in accordance with the
provisions of this subsection, then such amount shall
be determined as follows: The amount to be allocated
to each of leasehold improvements, furniture, fixtures
and equipment, inventory, franchises, licenses and
other hard assets shall be the then current book value
of each such item as determined in accordance with
generally accepted accounting principles by a
certified public accountant selected by Landlord, and
such determination shall be binding upon the parties.
The total of all such book value amounts shall be
deducted from the total of all rent and consideration
to be paid to Tenant in connection with such
assignment, subletting or other transfer, and all of
the remainder shall belong to Landlord as the amount
due hereunder for the use of the Premises or the
leasehold estate.
(f) [Intentionally Deleted]
(g) If Landlord consents to such assignment,
subletting or other transfer or does not exercise any
option set forth in subsection (c) within said thirty
(30) day period, Tenant may thereafter within sixty
(60) days after the expiration of said thirty (30) day
period enter into a valid assignment, sublease or
other transfer of the Premises or portion thereof,
upon the terms and conditions described in the
information required to be furnished by Tenant to
Landlord pursuant to subsection (b), or upon other
terms not less favorable to Tenant. Provided, however,
that any material change in such terms shall be
subject to Landlord's consent as provided in this
Section and, provided further, that any amounts to be
paid to Landlord by Tenant in connection therewith
pursuant to subsections (e) and (f) shall be paid to
Landlord upon the later of consummation of such
transaction or receipt by Tenant of such
consideration.
(h) For the purposes of this Section, the terms
"assignment" and "subletting" are herein,
collectively, used to refer to all events of the types
described in subsection (a) above. As used in this
Section, the term "assignment" shall include not only
a transfer of the entire tenant's interest pursuant to
this lease, but also any transfer in which or by which
the then tenant hereunder grants or purports to grant
to any person or entity any interest, security, profit
or other, in such leasehold interest. The term
"sublease" shall include any grant or purported grant
of the right to use or occupy all or any portion of
the Premises other than an assignment, however such
grant may be denominated. The term "assignee" shall
include the transferee or proposed transferee with
respect to any assignment as herein defined and the
term "subtenant" shall include any grantee or proposed
grantee with respect to any sublease as herein
defined.
(i) Tenant acknowledges that Tenant has been
advised concerning and is aware of Civil Code Sections
1995.210 through 1995.340 and 1997.010 through
1997.270 and acknowledges that the rights of Landlord
with respect to a proposed assignment, subletting,
other transfer, change in tradename and change in use
are absolute and in the sole discretion of Landlord
and may be deemed or construed to constitute
prohibitions thereof as permitted by Civil Code
Sections 1995.230 and 1997.230. Tenant agrees that
there is no implied requirement that Landlord's
consent not be unreasonably withheld pursuant to Civil
Code Sections 1995.260 and 1997.260 and that the
remedies provided in Civil Code Sections 1995.310 and
1997.260 shall not be available to Tenant. Tenant also
acknowledges that it is Landlord's practice not to
permit hypothecation or pledge of leasehold interests
by its tenants.
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TRANSFERS IN BANKRUPTCY Section 10.02
In the event that this lease is assigned to any
person or entity pursuant to the provisions of the
United States Bankruptcy Code (11 U.S.C. Sec. 101 et
seq.) (the "Code"), all consideration payable or
otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord,
shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the
estate of Tenant within the meaning of the Code. Any
consideration constituting Landlord's property
pursuant to the immediately preceding sentence not
paid or delivered to Landlord shall be held in trust
for the benefit of Landlord and be promptly paid or
delivered to Landlord. For the purposes of this
Section, the term "consideration" shall have the
meaning given to such term in Section 10.01(e). In
addition, the last two sentences of Section 10.01(f)
shall apply with respect to such assignment.
NO RELEASE OF TENANT Section 10.03
No subletting, assignment or other transfer, even
with the consent of Landlord, shall relieve Tenant of
its obligation to pay the rent and to perform all of
the other obligations to be performed by Tenant
hereunder. The acceptance by Landlord of any payment
due hereunder from any person other than Tenant shall
not be deemed to be a waiver by Landlord of any
provision of this lease or be a consent to any
assignment or subletting. The foregoing restrictions
shall be binding upon any assignee or subtenant to
which Landlord has consented. Any sale, assignment,
mortgage, transfer of this lease or subletting which
does not comply with the provisions of this Article
shall be void. If any assignee defaults in any
performance due hereunder, Landlord may proceed
directly against Tenant without exhausting its
remedies against such assignee. Landlord may consent
to subsequent assignments, sublettings, amendments and
modifications without notice to or consent of Tenant
or any assignee and without releasing Tenant or any
such assignee.
ARTICLE XI.
EMINENT DOMAIN
ENTIRE OR SUBSTANTIAL Section 11.01
TAKING If the entire Premises, or so much thereof as to make
the balance not reasonably adequate for the conduct of
Tenant's business, as determined by Landlord,
notwithstanding restoration by Landlord as hereinafter
provided, shall be taken under the power of eminent
domain, this lease shall automatically terminate as of
the date on which the condemning authority takes
possession. Each party waives the provisions of Code
of Civil Procedure Section 1265.130 allowing either
party to petition the Superior Court to terminate this
lease.
PARTIAL TAKING Section 11.02 See Addendum
In the event of any taking under the power of
eminent domain which does not result in a termination
of this lease, the Minimum Rent and all additional
rent other than Percentage Rent payable hereunder
shall be reduced, effective as of the date on which
the condemning authority takes possession, in the same
proportion which the Floor Area of the portion of the
Premises taken bears to the Floor Area of the entire
Premises prior to the taking, Landlord shall promptly
at its expense restore the portion of the Premises not
so taken to as near its former condition as is
reasonably possible, and this lease shall continue in
full force and effect. In no event, however, shall
Landlord be required to spend more on restoration than
the award received by Landlord, net of expenses
incurred in obtaining such award, or to repair or
restore any portion of the Premises for which Tenant
has received compensation from the condemning
authority.
TAKING OF CENTER Section 11.03 See Addendum
If premises in the Center aggregating twenty-five
percent (25%) or more of the total Floor Area of all
buildings within the Center leased or offered for
lease to tenants (other than tenant owned buildings)
shall be taken by eminent domain, whether or not the
Premises are so taken, Landlord may, at its option,
terminate this lease by written notice to Tenant of
its election to do so prior to the date the condemning
authority requires possession, and this lease shall
terminate on the date the condemning authority
requires possession.
AWARDS Section 11.04 See Addendum
Any award for any taking of all or any part of the
Premises under the power of eminent domain shall be
the property of Landlord, whether such award shall be
made as compensation for diminution in value of the
leasehold or for taking of the fee. Nothing contained
herein, however, shall be deemed to preclude Tenant
from obtaining, or to give Landlord any interest in,
any award to
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Tenant for loss of or damage to Tenant's trade
fixtures and removable personal property or for
damages for cessation or interruption or relocation of
Tenant's business, provided such award does not
diminish the award to Landlord.
SALE UNDER THREAT OF Section 11.05 See Addendum
CONDEMNATION A sale by Landlord to any authority having the power
of eminent domain, either under threat of condemnation
or while condemnation proceedings are pending, shall
be deemed a taking under the power of eminent domain
for all purposes under this Article. Landlord may,
without any obligation to Tenant, agree to sell and/or
convey to any authority having the power of eminent
domain all or any portion of the Center free from this
lease and the rights of Tenant hereunder without first
requiring that any action or proceeding be instituted
or pursued to judgment.
ARTICLE XII.
UTILITY SERVICES
UTILITY CHARGES Section 12.01
Tenant shall pay, to the purveyors of such
services, all charges, surcharges, taxes and other
fees, including installation and hookup charges
(however denominated) for gas, water, sewer,
electricity, telephone and other utility services used
in the Premises during the lease term and separately
metered to Tenant. If any such charges are not paid
when due, Landlord may pay the same, and any amount so
paid by Landlord shall thereupon become due to
Landlord from Tenant as additional rent. If any such
service is supplied to Tenant by means of a common
line serving Tenant and other tenants and without a
separate meter to measure Tenant's consumption, Tenant
shall pay Landlord, as additional rent on a periodic
basis, a reasonable portion, as determined by
Landlord, of the total cost of the service provided by
such common line.
FURNISHING OF SERVICES Section 12.02 See Addendum
If Landlord shall elect to furnish any utility
services to the Premises, Tenant shall purchase its
requirements thereof from Landlord so long as the
rates charged therefor by Landlord do not exceed those
which Tenant would be required to pay on an individual
basis if such services were furnished to it directly
by a public utility. Any such payments shall be based
on usage by Tenant and shall be made monthly or on
such other periodic basis as is determined by
Landlord. Landlord may discontinue, without notice,
any utility service being furnished by Landlord if
Tenant fails to pay, when due, the bills for such
service or any rent payable by Tenant hereunder.
INTERRUPTION OF SERVICE Section 12.03 See Addendum
Landlord shall not be liable in damages or
otherwise for any failure or interruption of any
utility service being furnished to the Premises and no
such failure or interruption shall entitle Tenant to
terminate this lease, or to an abatement of the rent
due hereunder.
CENTRAL SYSTEM Section 12.04
Landlord shall operate and maintain a central cold
or conditioned air distribution system and shall
provide cold or conditioned air to the Premises, at
the times and meeting the standards set forth in
Exhibits "C," "D" and "E." Tenant shall pay Landlord,
as additional rent, for such cold or conditioned air,
monthly in advance, one-twelfth (1/12th) of the annual
amount determined using the annual per square foot
charge (and the Floor Area of the Premises) determined
from Schedule "A" to Exhibit "D, adjusted as provided
in Exhibit "D." Tenant shall operate its business in
such a manner as not to use unreasonable quantities of
the cold or conditioned air so furnished, and so as to
maintain in the Premises approximately the same
temperatures which are from time to time maintained by
Landlord in the Enclosed Mall. Such cold or
conditioned air meeting the criteria set forth in
Exhibit "D" shall be provided to the Premises during
the same hours that cold or conditioned air is
provided to the Enclosed Mall pursuant to Section
12.05. Tenant shall promptly notify Landlord in
writing of any changes in the lighting system for the
Premises which increase the power draw of such system
or which change the appearance of the Premises.
Landlord may enter the Premises, from time to time, to
ascertain if any changes have been made which may
alter the cooling load of the Premises. If any such
alteration is noted, Landlord may measure such cooling
load and may, at Landlord's option, recalculate the
amount due from Tenant to Landlord pursuant to Exhibit
"D" and the Schedules thereto from the date of such
alteration. Any additional amount due shall be paid
within ten (10) days after Tenant's receipt of
Landlord's invoice therefor. Tenant's initial base
charge for cold or conditioned air furnished to the
Premises shall be determined pursuant to Schedule "A"
to Exhibit "D" and Tenant's initial additional charge,
if any, for cold o conditioned air furnished to the
Premises in quantities in excess of those determined
based upon the
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assumptions set forth in Exhibit "D" shall be determined
pursuant to Schedule "B" to Exhibit "D." If Landlord shall
hereafter revise such Schedules "A" and "B" to reflect
changes in the costs incurred by Landlord in providing cold
or conditioned air, such revised Schedules shall be
substituted for the Schedules attached to Exhibit "D" upon
delivery of copies of such revised schedules to Tenant. From
and after the date of each revision, the charges to Tenant
for base and excess cold or conditioned air furnished to the
Premises shall be determined using such revised Schedules.
ENCLOSED MALL Section 12.05
AIR CONDITIONING Landlord shall operate and maintain an air conditioning
system to cool and ventilate the Enclosed Mall during the
required minimum and optional opening hours from time to
time established by Landlord. Tenant shall pay for such
services, as additional rent, in equal monthly installments
in advance, the sum specified in the applicable Fundamental
Lease Provision per year per square foot of Floor Area of
the Premises, subject to adjustment pursuant to Exhibit "D."
Any such adjustment shall be computed in the same manner
specified in Exhibit "D" for the computation of adjustments
in rates for cold or conditioned air supplied to the
Premises.
ARTICLE XIII.
DEFAULTS AND REMEDIES
DEFAULTS Section 13.01 See Addendum
The occurrence of any one or more of the following
events shall constitute a default hereunder by Tenant:
(a) The abandonment of the Premises by Tenant.
Abandonment shall include, but is not limited to, any
absence by Tenant from the Premises for five (5) consecutive
days or longer.
(b) The failure by Tenant to make any payment of rent,
additional rent, or other payment required to be made by
Tenant hereunder, as and when due, or the failure of Tenant
to observe the minimum hours of operation established by
Landlord, where any such failure shall continue for a period
of three (3) days after written notice thereof from Landlord
to Tenant; provided, however, that any such notice shall be
in lieu of, and not in addition to, any notice required
under California Code of Civil Procedure Sec. 1161, et seq.,
as amended. For purposes of this subsection (b), Tenant
shall not be deemed to have cured a default resulting from
Tenant's failure to observe the minimum hours of operation
established by Landlord if Tenant shall, within thirty (30)
days after any purported cure, again fail to observe such
minimum hours of operation.
(c) The failure by Tenant to observe or perform any of
the covenants or provisions of this lease to be observed or
performed by Tenant, other than as specified in (a) or (b)
above, where such failure shall continue for a period of ten
(10) days after written notice thereof from Landlord to
Tenant; provided, however, that any such notice shall be in
lieu of, and not in addition to, any notice required under
California Code of Civil Procedure Sec. 1161, et seq., as
amended. Provided further, that if the nature of Tenant's
default is such that more than ten (10) days are reasonably
required for its cure, then Tenant shall not be deemed to be
in default if Tenant shall commence such cure within said
ten (10) day period and thereafter diligently prosecute such
cure to completion. Notwithstanding the foregoing, if the
covenant or other provision of this lease which is violated
by Tenant cannot thereafter be performed (such as obtaining
Landlord's prior written consent to an assignment of
Tenant's interest in this lease, a subletting of the
Premises, a change in tradename, a change in use, a physical
alteration to the Premises, or a release of hazardous
materials) by Tenant, then Landlord need not give the
foregoing notice demanding performance to Tenant (or to any
subtenant or assignee) for such violation to constitute a
default under this lease entitling Landlord to exercise its
remedies upon a default by Tenant, including those set forth
in this Article XIII.
(d) (i) The making by Tenant of any general
assignment for the benefit of creditors; (ii) the filing by
or against Tenant of a petition to have Tenant adjudged a
"Debtor" or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of
a petition filed against Tenant, the same is dismissed
within thirty (30) days); (iii) the appointment of a trustee
or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's
interest in this lease, where possession is not restored to
Tenant within thirty (30) days; (iv) the attachment,
execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's
interest in this lease, where such seizure is not discharged
within thirty (30) days; or (v) Tenant's convening of a
meeting of its creditors or any class thereof for the
purpose of effecting a moratorium upon or composition of its
debts, or any class thereof.
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(e) The revocation or termination or purported
revocation or termination by any guarantor of Tenant's
obligations under this lease of such guaranty obligations.
REMEDIES Section 13.02 See Addendum
(a) In the event of any default by Tenant as defined in
Section 13.01 or elsewhere in this lease, and subject to the
provisions of Section 13.09, Landlord may exercise the
following remedies:
(i) Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this lease shall
terminate and Tenant shall immediately surrender possession
of the Premises to Landlord. In such event Landlord shall be
entitled to recover from Tenant all amounts which Landlord
is entitled to recover pursuant to Section 1951.2 of the
California Civil Code (or any successor thereto), including,
but not limited to:
(A) The worth at the time of award of the
amount by which the unpaid rent and additional rent for the
balance of the term after the time of award exceeds the
amount of such loss that Tenant proves could be reasonably
avoided; and
(B) Any other amount necessary to compensate
Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under this lease
or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, the cost of
recovering possession of the Premises, removal (including
repair of any damage caused by such removal) and storage or
disposal of Tenant's personal property, equipment and
fixtures, expenses of reletting, including brokerage
commissions and any necessary repair, renovation and
alteration of the Premises, reasonable attorneys' fees, and
any other reasonable costs.
The "worth at the time of award" of all rent other than
that referred to in clause (A) above shall be computed by
allowing interest at the rate per annum determined pursuant
to Section 16.06 from the date such amounts accrue to
Landlord. The worth at the time of award of the amount
referred to in clause (A) above shall be computed by
discounting such amount at one (1) percentage point above
the discount rate of the Federal Reserve Bank of San
Francisco at the time of award.
(ii) In the event of the vacation or abandonment
of the Premises by Tenant, Landlord may relet the Premises
or any portion thereof in accordance with subsection (b)
below, at any time or from time to time and for such terms
and upon such conditions and rental as Landlord in its
discretion may deem proper, with the right to make
alterations or repairs to the Premises.
(iii) Landlord may terminate this lease by express
written notice to Tenant of its election to do so. Such
termination shall not relieve Tenant of any obligation
hereunder which has accrued prior to the date of such
termination. In the event of such termination, Landlord
shall be entitled to recover from Tenant the amounts
determined pursuant to clause (i) above.
(b) Landlord and Tenant shall each use commercially
reasonable efforts to mitigate any damages resulting from a
default by the other party pursuant to this lease. For this
purpose, Landlord and Tenant agree that:
(i) Landlord's obligation to mitigate damages
after a default by Tenant pursuant to this lease which
results in Landlord regaining possession of the Premises
shall be satisfied in full if Landlord undertakes to lease
the Premises to another tenant (a "Substitute Tenant") in
accordance with the following criteria:
(A) Landlord shall have no obligation to
enter into negotiations with a proposed Substitute Tenant
for the Premises until Landlord obtains full and complete
possession of the Premises including, without limitation,
the final and unappealable legal right to relet the Premises
free of any claim of Tenant.
(B) Landlord shall not be obligated to offer
the Premises to any prospective Substitute Tenant when other
premises in the Center suitable for such prospective
tenant's use are currently available or will be available
within three (3) months after Landlord obtains possession of
the Premises.
(C) Landlord shall not be obligated to lease
the Premises to a Substitute Tenant for a Minimum Rent less
than the Minimum Rent then being obtained by Landlord for
spaces similar to the Premises in the Center from tenants
similar to the prospective Substitute Tenant.
(D) Landlord shall not be obligated to enter
into a new lease containing any terms or conditions that are
unacceptable to Landlord under Landlord's then current
leasing practices for comparable space in the Center.
(E) Landlord shall not be obligated to enter
into a lease with any proposed Substitute Tenant that does
not have, in Landlord's reasonable judgment, sufficient
financial resources or operating experience to operate the
Premises in a first class manner.
(F) Landlord shall not be obligated to spend
any money to alter, remodel or renovate the Premises for use
by a Substitute Tenant unless (1) Tenant pays any such
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sum to Landlord in advance of Landlord's execution of a
lease with such Substitute Tenant (which payment shall not
be in lieu of any damages or other sums to which Landlord
may be entitled as a result of Tenant's default pursuant to
this lease) or (2) Landlord, in its sole discretion,
determines that any such expenditure is financially
justified in connection with entering into a lease with such
Substitute Tenant.
(G) Landlord shall not be obligated to enter
into a lease with any Substitute Tenant whose use would (1)
not be compatible with the tenant mix of the portion of the
Center in which the Premises is located, (2) violate any
restriction, covenant or requirement contained in the lease
of any other tenant of the Center or in the reciprocal
easement agreement for the Center, (3) be of a lesser
quality than the uses in the portion of the Center in which
the Premises is located, (4) adversely affect the reputation
of the Center or (5) be incompatible with the operation of
the Center as a first class regional retail center.
(ii) Compliance by Landlord with the criteria set
forth in clause (i) above shall fully satisfy Landlord's
obligation to mitigate damages under this lease and under
any applicable law or judicial ruling in effect on the date
of this lease or at the date Landlord obtains possession of
the Premises following a default by Tenant hereunder. Tenant
waives and releases, to the fullest extent permitted by law,
any right to assert in any action by Landlord to recover
damages for a default by Tenant hereunder any defense,
counterclaim or right of setoff or recoupment respecting the
mitigation of damages by Landlord unless and to the extent
that Landlord maliciously or in bad faith fails to act in
accordance with the provisions of this subsection.
(iii) If Landlord relets the Premises or any
portion thereof, then rent received by Landlord from such
reletting shall be applied: first, to the payment of any
indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any cost of such
reletting; third, to the payment of the cost of any
alterations and repairs to the Premises; fourth, to the
payment of rent due and unpaid hereunder; and the residue,
if any, shall be held by Landlord and applied in payment of
future amounts as the same may become due and payable
hereunder. Landlord may execute any lease made pursuant
hereto in its own name, and the lessee thereunder shall be
under no obligation to see to the application by Landlord of
any proceeds to Landlord, nor shall Tenant have any right to
collect any such proceeds. Landlord shall not by any re-
entry or other act be deemed to have relieved Tenant of any
obligations hereunder, unless Landlord shall have given
Tenant express written notice of Landlord's election to do
so as set forth herein.
(c) Landlord shall be under no obligation to observe
or perform any covenant of this lease on its part to be
observed or performed which accrues after the date of any
default by Tenant hereunder.
(d) In any action for unlawful detainer commenced by
Landlord against Tenant by reason of any default hereunder,
and in any arbitration pursuant to Section 13.09 below, the
reasonable rental value of the Premises for the period of
the unlawful detainer or for the period at issue in such
arbitration, as applicable, shall be deemed to be the amount
of rent and additional rent reserved in this lease for such
period, unless Landlord or Tenant shall prove to the
contrary by competent evidence.
(e) The rights and remedies reserved to Landlord
herein, including those not specifically described, shall be
cumulative, and except as provided by Section 13.09 or
California statutory law in effect at the time, Landlord may
pursue any or all of such rights and remedies, at the same
time or otherwise.
(f) No delay or omission of Landlord to exercise any
right or remedy shall be construed as a waiver of any such
right or remedy or of any default by Tenant hereunder. The
acceptance by Landlord of any rent hereunder shall not be a
waiver of any preceding breach or default by Tenant of any
provision hereof, other than the failure of Tenant to pay
the particular rent accepted, regardless of Landlord's
knowledge of such preceding breach or default at the time of
acceptance of such rent, or a waiver of Landlord's right to
exercise any remedy available to Landlord by virtue of such
breach or default. The acceptance of any payment from a
debtor in possession, a trustee, a receiver or any other
person acting on behalf of Tenant or Tenant's estate shall
not waive or cure a default under Section 13.01(d).
(g) Tenant hereby waives any right of redemption or
relief from forfeiture under California Code of Civil
Procedure Sections 1174 and 1179, and under any present or
future statutes or case decisions to the same effect, in the
event Tenant is evicted or Landlord takes possession of the
Premises by reason of any default by Tenant hereunder.
DEFAULT BY LANDLORD Section 13.03 See Addendum
Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it
hereunder unless and until it has failed to perform such
obligation within thirty (30) days after written notice by
Tenant to Landlord specifying wherein Landlord has failed to
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perform such obligation. Provided, however, that if the
nature of Landlord's obligation is such that more than
thirty (30) days are required for its performance then
Landlord shall not be deemed to be in default if it shall
commence such performance within such thirty (30) day period
and thereafter diligently prosecute the same to completion.
If Landlord shall have notified Tenant of the name and
address of any lender having a lien on the Center or
Landlord's interest therein, a copy of any notice to
Landlord pursuant to this Section shall concurrently be sent
to such lender by registered or certified mail, and such
lender shall have a thirty (30) day period to cure any such
default following the expiration of Landlord's cure period
herein. Tenant's remedies for Landlord's default shall be
limited to suit or action and shall not extend to
withholding or offsetting rent. Tenant's right to seek
damages from Landlord as a result of a default by Landlord
pursuant to this lease shall be conditioned upon Tenant
taking all actions reasonably required under the
circumstances to minimize any loss to Tenant or to third
parties that may be caused by any such default of Landlord.
EXPENSE OF Section 13.04 See Addendum
LITIGATION If either party incurs any expense, including reasonable
attorneys' fees, in connection with any action or
proceeding, including any arbitration proceeding, instituted
by either party by reason of any default or alleged default
of the other party hereunder, the party prevailing in such
action or proceeding shall be entitled to recover its said
reasonable expenses from the other party, including expenses
of investigation and enforcement. For purposes of this
provision, in any unlawful detainer or other action or
proceeding instituted by Landlord based upon any default or
alleged default by Tenant hereunder, Landlord shall be
deemed the prevailing party if (a) judgment is entered in
favor of Landlord or (b) prior to arbitration, trial or
judgment Tenant shall pay all or any portion of the rent and
charges claimed by Landlord, eliminate the condition(s),
cease the act(s) or otherwise cure the omission(s) claimed
by Landlord to constitute a default by Tenant hereunder.
HOLDING OVER Section 13.05 See Addendum
If Tenant or anyone claiming under Tenant shall remain
in possession of the Premises or any part thereof after
expiration of the lease term or earlier termination thereof
without any agreement in writing between Landlord and Tenant
with respect thereto, Tenant shall (a) occupy upon all of
the terms and conditions of this lease except that the
monthly Minimum Rent due from Tenant shall be equal to the
greater of three hundred percent (300%) of the monthly
Minimum Rent in effect at the end of the term or the then
fair market rental value of the Premises (determined as
provided in Section 10.01(e)), (b) pay all damages sustained
by Landlord by reason of such retention and (c) indemnify,
defend, and hold Landlord harmless from and against any loss
or liability resulting from such holding over. If Landlord
so notifies Tenant in writing, such holding over shall
constitute a renewal of this lease for a one year term;
otherwise Landlord's acceptance of rent shall create only a
month-to-month tenancy, in either case upon the terms set
forth in this Section. Any such month-to-month tenancy shall
be terminable at the end of any calendar month by either
party by written notice to the other party given not less
than ten (10) days prior to the end of such month. Nothing
contained in this Section shall be deemed or construed to
waive Landlord's right of reentry or any other right of
Landlord hereunder or at law.
LANDLORD'S Section 13.06 See Addendum
RIGHTS All covenants and agreements to be performed by Tenant
under this lease shall be performed by Tenant at Tenant's
sole cost and expense and without any abatement of rent. If
Tenant fails to pay any sum of money, other than rent,
required to be paid by it or fails to perform any other act
on its part to be performed, and such failure continues
beyond any applicable grace period set forth in the Article
providing for such obligation (or if no grace period is set
forth in such Article, then the applicable grace period
pursuant to this Article), then in addition to any other
remedies provided herein Landlord may, but shall not be
obligated so to do, without waiving or releasing Tenant from
any obligations of Tenant, make any such payment or perform
any such other act on Tenant's part, including the removal
of any offending signs. Landlord's election to make any such
payment or perform any such act on Tenant's part shall not
give rise to any responsibility of Landlord to continue
making the same or similar payments or performing the same
or similar acts. Tenant shall, within ten (10) days after
written demand therefor by Landlord, reimburse Landlord for
any sums so paid by Landlord and all necessary incidental
costs, together with interest thereon at the rate determined
pursuant to Section 16.06, accruing from the date of such
payment by Landlord, and the late performance charge
provided therein. Landlord shall have the same rights and
remedies in the event of failure by Tenant to pay such
amounts as Landlord would have in the event of a default by
Tenant in payment of rent. In addition, as to any non-
monetary obligation of Tenant hereunder which Tenant
performs only after written notice from Landlord of failure
to perform or which Tenant fails to perform and Landlord
performs pursuant to this Section, Tenant shall pay to
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Landlord, as additional rent, an administrative fee in an
amount equal to the greater of $100 or ten percent (10%) of
the cost paid or incurred by Landlord to perform such
obligation.
LIEN FOR RENT Section 13.07 [Intentionally Deleted] See Addendum
TRIAL WITHOUT JURY Section 13.08
LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT HAS HAD
THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS
RIGHTS TO TRIAL BY JURY UNDER THE CONSTITUTIONS OF THE
UNITED STATES AND THE STATE OF CALIFORNIA. EACH PARTY
EXPRESSLY AND KNOWINGLY WAIVES AND RELEASES ALL SUCH RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTERS
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM
FOR INJURY OR DAMAGE.
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SUBMISSION TO Section 13.09
ARBITRATION (a) Except as provided in subsection (b) below, any
controversy, dispute or claim of whatsoever nature arising
out of, in connection with, or in relation to the
interpretation, performance or breach of this lease,
including any claim based on contract, tort or statute,
shall be determined by final and binding arbitration
conducted before a single arbitrator at a location
determined by the arbitrator in Orange County, California
and administered by Judicial Arbitration & Mediation
Services, Inc. ("JAMS"), or if JAMS shall not then exist,
such other organization as to which Landlord and Tenant
agree. If Landlord and Tenant are unable to so agree within
fifteen (15) days after the dispute arises, the organization
shall be selected by the presiding judge of the Orange
County Superior Court or his or her designee upon
application by any party to the dispute. Judgment upon any
award rendered by the arbitrator may be entered by any state
or federal court having jurisdiction thereof.
(b) The provisions of this Section shall not apply to:
(i) Any unlawful detainer action instituted by
Landlord as the result of a default or alleged default by
Tenant pursuant to this lease.
(ii) Any specific controversy, dispute, question
or issue as to which this lease specifically provides
another method of determining such controversy, dispute,
question or issue and provides that a determination pursuant
to such method is final and binding, unless both Landlord
and Tenant agree in writing to waive such procedure and to
proceed instead pursuant to this Section.
(iii) Any request or application to any State or
Federal court having jurisdiction thereof for an order or
decree granting any provisional or ancillary remedy (such as
a temporary restraining order or injunction) in aid of or
with respect to any right or obligation of either party to
this lease, and any preliminary determination of the
underlying controversy, dispute, question or issue as is
required to determine whether or not to grant the relief
requested or applied for. A final and binding determination
of such underlying controversy, dispute, question or issue
shall be made by an arbitration conducted pursuant to this
Section after an appropriate transfer or reference to JAMS
upon motion or application of either party hereto. Any
ancillary or provisional relief which is granted pursuant to
this clause (iii) shall continue in effect pending an
arbitration determination and entry of judgment thereon
pursuant to this Section.
(iv) Exercise of any remedies to enforce any
judgment entered based upon a determination made by
arbitration pursuant to this Section.
(c) Any arbitration pursuant to this Section shall be
conducted in accordance with the streamlined Arbitration
Rules and Procedures of JAMS (the "Rules"), regardless of
the amount in dispute, except that, whether or not such
Rules so provide:
(i) There shall be a pre-hearing conference
prior to the arbitration hearing to reach agreement on
procedural matters, arrange for the exchange of information,
obtain stipulations and attempt to narrow the issues to be
arbitrated.
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(ii) There shall be no mediation or settlement
conferences unless all parties agree thereto in writing.
(iii) Discovery shall be limited to that
permitted by the Rules, and "good cause" where a condition
to discovery shall be strictly construed.
(iv) All motions shall be in letter form and
hearings thereon shall be by conference telephone calls
unless the arbitrator orders otherwise.
(v) Hearings shall require only twenty (20)
days prior written notice.
(vi) All notices in connection with any
arbitration may be served in any manner permitted by Section
16.11 of this lease.
(vii) Fees and costs paid or payable to JAMS
shall be included in "reasonable expenses" for purposes of
Section 13.04. The arbitrator shall specifically have the
power to award to the prevailing party such party's
reasonable expenses incurred in such proceeding, except as
otherwise provided in subsection (d) below. Reasonable
expenses shall include attorneys' fees and fees and costs
paid or payable to JAMS.
(viii) The selection of the arbitrator shall be in
accordance with the then existing Rules of JAMS, provided
that Landlord and Tenant may agree to extend the period of
time by which an arbitrator must be selected by them. In the
event that the parties are unable to agree upon an
arbitrator within thirty (30) days after submission of a
matter to arbitration, the arbitrator shall be appointed by
the administrator of the Orange County office of JAMS or its
successor, if any, as provided in the Rules.
(ix) The arbitration award shall include
findings of fact and conclusions of law and shall not be
limited as to amount.
(d) As soon as practicable after selection of the
arbitrator, the arbitrator or his or her designated
representative shall determine a reasonable estimate of
anticipated fees and costs of the arbitrator and shall
deliver a statement to each party setting forth that party's
pro rata share of such fees and costs. Each party shall
deposit its pro rata share of such fees and costs with the
arbitrator within ten (10) days after receipt of such
statement. If either party fails to make a required deposit
hereunder, the other party may make such deposit on behalf
of the defaulting party and the amount of such deposit, plus
interest thereon at the rate determined pursuant to Section
16.06, shall be awarded against the defaulting party by the
arbitrator in making any final arbitration award without
regard to whether the defaulting party is the prevailing
party in the arbitration pursuant to this Section. In
addition, if Tenant fails to make a required deposit
hereunder, Landlord may make such deposit on behalf of
Tenant and the amount of such deposit, plus interest thereon
at the rate determined pursuant to Section 16.06 from date
of deposit to date of repayment, shall be additional rent
pursuant to this lease payable by Tenant within ten (10)
days after Tenant's receipt of Landlord's invoice therefor.
(e) The arbitrator shall have no authority or power to
award any party any exemplary or punitive damages.
(f) Any guaranty of the tenant's obligations pursuant
to this lease, whether provided at the execution of this
lease or thereafter, shall be subject to the provisions of
this Section, whether or not expressly so stated therein.
ARTICLE XIV.
COMMON AREAS
DEFINITION Section 14.01 See Addendum
All areas within the exterior boundaries of the Center
which are not now or hereafter held for exclusive use by
Landlord or by other persons entitled to occupy floor space
in the Center, including, without limiting the generality of
the foregoing, parking areas and structures, driveways,
truckways, delivery passages, elevators and escalators,
loading docks, sidewalks, ramps, open and enclosed courts
and malls, landscaped and planted areas, exterior stairways,
bus stops, retaining walls, management offices, restrooms
not located within the premises of any tenant, and other
areas and improvements provided by Landlord for the common
use of Landlord and tenants and their respective employees
and invitees, shall be deemed "common areas." Landlord may
make changes at any time and from time to time in the size,
shape, location, number and extent of the common areas
(including Enclosed Mall areas) or tenant areas or either of
them, and no such change shall entitle Tenant to any
abatement of rent. Without limiting the generality of the
foregoing, Landlord may add additional department stores,
retail store buildings and parking decks anywhere in the
Center.
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USE Section 14.02 See Addendum
Tenant and its employees and invitees shall be entitled
to use the common areas during the lease term, in common
with Landlord and with other persons authorized by Landlord
from time to time to use such areas, subject to such
reasonable rules and regulations relating to such use as
Landlord may from time to time establish.
CONTROL BY Section 14.03 See Addendum
LANDLORD (a) Landlord shall operate, manage, equip, police,
light, repair, clean and maintain the common areas in such
manner as Landlord may in its sole discretion determine to
be appropriate. Landlord may temporarily close any common
area for repairs or alterations, to prevent a dedication
thereof or the accrual of prescriptive rights therein or for
any other reason deemed sufficient by Landlord.
(b) Landlord shall at all times during the term of
this lease have the sole and exclusive control of the
automobile parking areas, driveways, entrances and exits,
sidewalks and pedestrian passageways and other common areas,
and may at any time and from time to time during the term
hereof restrain any use or occupancy thereof except as
authorized by the rules and regulations for the use of such
areas established by Landlord from time to time. Without
limiting the generality of the foregoing, Landlord may
operate or cause to be operated a valet parking service for
Center customers in one or more locations in the Center
selected by Landlord, and the cost of such service shall be
a common area cost pursuant to Section 14.04. The rights of
Tenant in and to the common areas shall at all times be
subject to the rights of Landlord, the other tenants of
Landlord and the other owners of stores in the Center to use
the same in common with Tenant, and Tenant shall keep said
areas free and clear of any obstructions created or
permitted by Tenant or resulting from Tenant's operation. If
in the opinion of Landlord unauthorized persons are using
any of said areas by reason of the presence of Tenant in the
Center, Tenant, upon demand of Landlord, shall restrain such
unauthorized use by appropriate proceedings. Nothing herein
shall affect the right of Landlord at any time to remove any
such unauthorized person from the common areas or to
prohibit the use of any of said areas by unauthorized
persons.
(c) Tenant and its employees shall park their vehicles
only in such parking areas as are from time to time
designated for that purpose by Landlord, and Landlord may
change such designated areas or assign particular spaces for
use by Tenant and its employees at any time upon written
notice to Tenant. Those areas designated for employee
parking may be located on the highest level of Center
parking structures and in those portions of the Center most
distant from the store buildings. Tenant shall furnish
Landlord with a list of its and its employees' vehicle
license numbers within fifteen (15) days after taking
possession of the Premises and Tenant shall thereafter
notify Landlord of any change in such list within five (5)
days after such change occurs. Tenant agrees to assume
responsibility for compliance by its employees with the
parking provisions contained herein. If Tenant or its
employees park in other than such designated parking areas,
then Landlord may charge Tenant, as additional rent, Fifty
Dollars ($50.00) per day for each day or partial day each
such vehicle is parked in any part of the common areas other
than those so designated. Tenant acknowledges that Landlord
may tow away from the Center any vehicle belonging to Tenant
or Tenant's employees parked in violation of these
provisions, and/or attach violation stickers or notices to
such vehicle. All costs of such towing will be charged to
the Tenant or the employee who owns the towed vehicle and
must be paid prior to the release of the vehicle to its
owner. Each Tenant and its employees shall be solely
responsible for locking and the safety of their respective
vehicles.
Without limiting the generality of the foregoing,
Landlord shall have the right, during the Christmas shopping
period (Veterans' Day through December 31) and during any
promotional event at the Center, to locate offsite parking
at any location within two (2) miles of the Center, to
designate such offsite areas as parking for Tenant's
employees and to require Tenant's employees to park in such
offsite parking and to shuttle-bus from such offsite parking
areas to the Center. If Landlord elects to use such offsite
employee parking, Tenant shall (i) park and require Tenant's
employees to park in such offsite parking areas and use
Landlord's shuttle buses for travel to and from the Center
and (ii) pay to Landlord, as a part of common area expenses,
Tenant's proportionate share of Landlord's costs incurred in
using such offsite areas and providing shuttle bus service
to the Center. Tenant's proportionate share of such costs
shall be determined in the manner specified in Section
14.05(a) and shall be included in common area costs paid by
Tenant pursuant to such Section.
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(d) In the event Landlord elects or is required to
limit or control parking by customers or invitees of the
Center, whether by validation of parking tickets or any
method of assessment, or any program for free or reduced
cost transportation, Tenant agrees to participate in such
validation, assessment or transportation program under such
reasonable rules and regulations as are from time to time
established by Landlord with respect thereto. Without
limiting the generality of the foregoing:
(i) Landlord and Tenant agree to cooperate and
use their best efforts to participate in governmentally
mandated and voluntary traffic management programs generally
applicable to businesses located in Costa Mesa, California
or to the Center and, initially, shall encourage and support
van and car pooling by employees and shall encourage and
support staggered and flexible working hours for employees
to the fullest extent permitted by the requirements of
Tenant's business. Neither this subsection nor any other
provision in this lease, however, is intended to or shall
create any rights or benefits in any other person, firm,
company, governmental entity or the public.
(ii) Landlord and Tenant agree to cooperate and
use their best efforts to comply with any and all guidelines
or controls imposed upon either Landlord or Tenant by
federal or state governmental organizations or by any energy
conservation association to which Landlord is a party
concerning energy management.
(iii) All costs, fees, assessments and other
charges paid by Landlord to any governmental authority or
voluntary association in connection with any program of the
types described in this Section, all costs and fees paid by
Landlord to any governmental authority or third party
pursuant to or to effect such program and all costs
associated with administration and management of such
program or compliance therewith, shall be included in common
area costs for the purposes of Section 14.04, whether or not
specifically listed in such Section. However, any costs,
fees, fines or other levies assessed against Landlord as the
result of failure of any tenant to comply with this
subsection shall be reimbursed by such noncomplying tenant
to Landlord as additional rent.
COMMON AREA Section 14.04 See Addendum
COSTS Tenant shall pay to Landlord, as additional rent in the
manner and at the time provided in Section 14.05, Tenant's
proportionate share, as defined in Section 14.05, of all
costs and expenses incurred by Landlord in the management,
operation, repair and maintenance of the common areas during
the term of this lease, including property taxes assessed
against the Center and Landlord's expenses pursuant to
Section 7.01. Such costs and expenses shall include, without
limiting the generality of the foregoing:
(a) Utility costs, including telephone, not separately
metered to tenants (including costs and fees charged to or
incurred by Landlord in connection with membership in energy
conservation associations).
(b) Gardening, landscaping, planting and replacement
of interior and exterior plants, planters and landscaping,
cleaning, re-striping, repair, replacement and repaving and
resurfacing of roads and other paved areas.
(c) Maintenance, cleaning, repair and replacement of
sidewalks, curbs, pedestrian bridges and concourses, loading
and service areas, carpeting, benches, furniture, restrooms,
trash compactors and other common areas and facilities.
(d) Costs to acquire, maintain, repair and replace
elevators, escalators, moving sidewalks, stairways, fire
escapes, flagpoles, statues, fountains, satellite dishes,
signage for the Center, Center tenant directories and other
equipment and machinery used in connection with the common
areas, including any personal property taxes thereon.
(e) Surcharges and license and permit fees required by
law for or with respect to parking and transportation
facilities, including traffic management fees and charges,
as well as the cost of any valet parking provided for Center
patrons and the offsite parking and shuttle buses provided
pursuant to Section 14.03.
(f) Premiums paid for public liability, property
damage, vandalism, malicious mischief, environmental loss
and other insurance maintained by Landlord, together with
the cost of funding all deductibles and reserves maintained
by Landlord with respect to any such insurance.
(g) Real property taxes (as defined in Section 5.02),
personal property taxes and vehicle taxes and fees paid by
Landlord with respect to the Center, the improvements
thereto and Landlord's vehicles and other personal property
therein.
(h) Maintenance, painting, sealing, cleaning, staining
and replacement (including roof and structural repair,
maintenance and replacement pursuant to Section 7.01) of the
Center and all common area structural elements.
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(i) Maintenance, repair and replacement of traffic and
directional signs, markers and bumpers.
(j) Costs of alarm monitoring, pest control,
accounting, legal, architectural, engineering and other
services required in the operation of the Center.
(k) Maintenance, repair, operation and replacement of
utility lines, fire sprinklers, sewer lines, security
systems, lighting standards and fixtures, irrigation
systems, pipes and other systems and equipment serving the
Center.
(l) Maintenance and operation of special amenities
such as meeting rooms, amusements, a concierge desk, police
and security facilities.
(m) Fees and costs paid by Landlord for management,
security and other services provided with respect to the
Center, as well as license and permit fees relating to
operation and management of the Center and providing
security and other services therefor.
(n) Painting, lighting (including replacements),
cleaning, trash removal, depreciation of equipment, security
and fire protection and similar items.
(o) The cost of purchase, installation and removal of
seasonal decorations at the Center, together with the cost
of supplying to Center patrons customer services determined
by Landlord to be advantageous to attract such patrons or to
assist them in shopping at the Center, such as the costs of
leasing and/or operating shuttle buses and other
transportation systems, public or private, and the costs of
providing shopping bags, toddler strollers, wheelchairs,
Center gift certificates, and children's rides and
entertainment.
(p) Costs incurred for monitoring, improving and
remedying indoor air quality within the Center, whether
incurred to comply with applicable laws and regulations or
for the purpose of improving indoor building environmental
quality.
(q) Costs of installation and operation of loudspeaker
systems, music program services and other similar audio or
video transmission systems, including licensing fees, and
all security systems for the Center.
(r) Computer and other technology costs relating to
the common areas.
(s) Costs incurred in connection with abatement of
asbestos and other hazardous material in the common areas of
the Center, including the Enclosed Mall and other enclosed
common areas.
(t) Costs incurred by Landlord to promote tourist
visits to the Center, including the costs of advertisements,
promotional literature and incentives provided to travel
agents, public and charter transportation carriers and
others engaged in the tourism industry.
(u) The costs of providing management, maintenance,
engineering and security offices at the Center and the cost
of providing center management and support staff to operate
such offices and the Center, including all employee-related
costs and all office administration costs.
(v) An amount equal to fifteen percent (15%) of all
other common area costs and expenses to cover Landlord's
indirect administrative and overhead expenses.
Such costs and expenses shall not include any allowance
for depreciation of common area improvements, or any costs
or expenses attributable to the ventilating or air
conditioning of the Enclosed Mall. Such costs and expenses
shall include all other costs and expenses incurred for the
purposes specified in the first sentence of this Section,
including all capital purchases, whether such costs and
expenses are now or hereafter classified as expenses or
capital expenditures under generally accepted accounting
principles, and without requirement of amortization other
than as may be elected, from time to time, by Landlord. Such
costs and expenses shall include interest paid by Landlord
on monies borrowed by Landlord to fund costs and expenses of
the types described in this Section. Such costs and expenses
shall include all charges, surcharges and other levies of
whatsoever nature imposed by, and all costs (whether or not
capital in nature) of compliance with the requirements of,
any federal, state or local governmental agency regulating
the environmental, health and safety aspects of the Center
and all costs, as reasonably amortized by Landlord with
interest at the rate actually incurred by Landlord, of any
capital improvement which is reasonably calculated to reduce
common area costs. Any receipts received by Landlord on
account of the foregoing costs and expenses shall be
deducted therefrom after addition of the administrative and
overhead expense allowance and prior to billing to Tenant.
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PROPORTIONATE Section 14.05 See Addendum
PAYMENT (a) Tenant's proportionate share of such common area
costs shall be that portion thereof which the Floor Area of
the Premises bears to the Floor Area of the premises from time
to time leased and occupied by tenants in the Center (other
than tenant-owned buildings and certain other tenants who pay
on a basis other than a proportionate share and certain
exterior restaurant seating as described in Section 16.04).
Tenant's proportionate share shall be based upon the common
area costs remaining after the deduction of costs paid
directly by the owners of tenant-owned buildings and
contributions at rates or in amounts specified in leases
between Landlord and certain other tenants. Such deductions
shall be made after inclusion of the fifteen percent (15%) fee
provided for in Section 14.04.
(b) Prior to January 1 of each calendar year, Landlord
shall give Tenant a written estimate of Tenant's proportionate
share of such common area costs (after taking into account the
contributions referred to in (a) above) for the ensuing
calendar year. Tenant shall pay such estimated amount to
Landlord in equal monthly installments, in advance. In the
event that actual common area costs experienced during any
calendar year shall be greater or lesser than the estimates
used by Landlord for calculating Tenant's monthly
installments, Landlord may revise its estimates and Tenant's
monthly installments thereof. Any changes to Tenant's monthly
installment payments shall be effective with the first full
calendar month following Tenant's receipt of notice from
Landlord setting forth such revisions. Within ninety (90) days
after the end of each such calendar year, Landlord shall
furnish to Tenant a statement summarizing the costs and
expenses incurred by Landlord for the operation and
maintenance of the common areas (taking into account the
contributions referred to in (a) above) during such calendar
year, and the parties shall make any adjustment necessary to
place Tenant's proportionate share on a calendar year basis.
Any additional amount due from Tenant shall be paid by Tenant
to Landlord within ten (10) days after Tenant's receipt of
Landlord's invoice therefor. Any amount due Tenant shall be
credited against installments next coming due under this
Section or, if at the end of the term, applied against any
amount then owed by Tenant to Landlord pursuant to this lease
and the balance, if any, refunded to Tenant. Landlord's final
statement of common area costs and expenses for any calendar
year shall be final and conclusive upon Landlord and Tenant.
All estimates and statements furnished by Landlord pursuant to
this subsection shall be in such format, shall contain only
such detail as Landlord determines and shall be final and
binding on the parties.
ARTICLE XV.
SIGNS, LIGHTING AND ADVERTISING
PROHIBITED Section 15.01 See Addendum
ACTIVITIES Tenant shall not, without Landlord's prior written
consent, do any of the following:
(a) Install or affix to the exterior of the Premises any
lighting or plumbing fixtures, shades, awnings, or exterior
decorations (including exterior painting).
(b) Install or affix to the Enclosed Mall storefront of
the Premises or within four feet of such doors and windows and
visible therefrom, any signs, lettering, placards, sign easels
or the like. In no event shall such signs, lettering and
placards exceed four (4) square feet in size.
(c) Display or sell merchandise in, or otherwise
obstruct, any area outside of the Premises.
(d) Cause or permit to be used any advertising materials
or methods which are objectionable to Landlord or which
intrude upon the premises of other tenants of the Center,
including, without limiting the generality of the foregoing,
loudspeakers, phonographs, radios, television, mechanical or
moving display devices, unusually bright or flashing lights
and similar devices the effect of which may be seen or heard
or otherwise experienced outside the Premises.
(e) Solicit business in the parking or other common
areas, distribute any hand bills or other advertising matter
in the parking area or in other common areas or utilize any
truck or other vehicle signs.
(f) Use any sign or advertising material that is not of
professional quality.
For the purpose of this Article, the term "exterior" shall
include exposures on the Enclosed Mall. No signs, lighting or
advertising shall be permitted on any portion of the Premises
which is exposed to the parking areas. Landlord may, without
notice, remove any materials which violate the provisions of
this Section, and the cost of such removal shall be additional
rent payable by Tenant upon demand.
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MAINTENANCE Section 15.02 See Addendum
Tenant shall at all times maintain its display windows,
signs, doors, storefront and storefront entrance floor in a
neat, clean and orderly condition. If, as to any such sign,
display window, door, storefront or entrance floor located on
an exposure to the Enclosed Mall or the parking areas, Tenant
shall fail to do so within two (2) days after receipt of
written notice from Landlord, Landlord may repair, clean or
maintain such sign, display window, door, storefront or
entrance floor and the cost thereof shall be payable by Tenant
to Landlord upon demand as additional rent.
DISPLAY WINDOW Section 15.03
LIGHTING Tenant shall keep its display windows well lighted during
all operating hours of Tenant and until such reasonable time
as may be fixed from time to time by Landlord for all of the
tenants in the Center, unless prevented by causes beyond
Tenant's reasonable control.
ADVERTISED NAME Section 15.04 See Addendum
AND ADDRESS (a) In no event shall Tenant use or shall Landlord
approve any tradename of Tenant for use at the Premises or in
or on any sign, stationery, business cards, advertising or
promotional material or other written or oral disseminations
by Tenant which contains as a portion of such tradename the
words "South Coast Plaza," "South Coast," "Plaza," "Carousel
Court" or "Jewel Court." In no event shall Tenant use any
picture or likeness of the Center in any advertisement,
correspondence, notice, announcement or other communication.
(b) TENANT SHALL USE AS ITS ADVERTISED BUSINESS ADDRESS
OF THE PREMISES (AND FOR NO OTHER PURPOSE) THE WORDS "SOUTH
COAST PLAZA," AND SHALL NOT USE THE NAME "COSTA MESA." TENANT
SHALL NOT ACQUIRE ANY PROPERTY RIGHT IN OR TO ANY NAME WHICH
CONTAINS SUCH REQUIRED WORD COMBINATION AS A PART THEREOF.
SUCH PERMITTED USE BY TENANT OF THE WORDS "SOUTH COAST PLAZA"
DURING THE TERM OF THIS LEASE SHALL NOT PERMIT TENANT TO USE,
AND TENANT SHALL NOT USE, SUCH WORDS EITHER AFTER THE
TERMINATION OF THIS LEASE OR AT ANY OTHER LOCATION. THE
FOREGOING SHALL NOT PRECLUDE TENANT, DURING THE TERM OF THIS
LEASE, FROM USING THE WORDS "SOUTH COAST PLAZA" IN ANY LISTING
OF TENANT'S STORE LOCATIONS AT ANOTHER STORE OR ON STATIONERY,
ADVERTISING MATERIALS OR PROMOTIONAL MATERIALS. ANY USE BY
TENANT OF THE NAME "SOUTH COAST PLAZA" IN ANY ADVERTISING BY
TENANT SHALL BE SOLELY AS THE GEOGRAPHICAL LOCATION OF
TENANT'S STORE IN THE PREMISES AND NOT AS A PART OF ANY
TRADENAME USED BY TENANT. IF TENANT IDENTIFIES IN ANY
ADVERTISING OF TENANT'S STORES ITS STORES BY CITY LOCATION, IT
SHALL IDENTIFY THE PREMISES AS LOCATED IN "SOUTH COAST PLAZA,"
RATHER THAN IN COSTA MESA. LANDLORD MAY CHANGE THE NAME OF THE
CENTER AT ANY TIME. NO TENANT SIGN AT THE PREMISES SHALL
IDENTIFY ANY OTHER LOCATION OF TENANT.
TENANT ACKNOWLEDGES AND AGREES THAT IT HAS READ THE
PROVISIONS OF THIS SECTION 15.04, THAT IN EACH ADVERTISEMENT
OF TENANT WHICH IDENTIFIES TENANT'S STORE IN THE PREMISES SUCH
STORE WILL BE IDENTIFIED AS LOCATED AT OR IN "SOUTH COAST
PLAZA" AND THAT LANDLORD WILL TREAT ANY FAILURE BY TENANT TO
COMPLY WITH THIS SECTION 15.04 AS A MATERIAL BREACH OF THIS
LEASE BY TENANT ENTITLING LANDLORD TO EXERCISE ALL REMEDIES
AVAILABLE UPON A DEFAULT BY TENANT.
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(c) Landlord and Tenant each desire to establish and
maintain within the trade area, as defined below, strong
public recognition of the high quality of Tenant's location in
the Center and the Center itself. Such goal shall be achieved
through, among other things, Tenant's advertising program as
now or hereafter existing, and but for Tenant's agreement to
foster such goal Landlord would not enter into this lease upon
the terms contained herein. Accordingly, in all Tenant's
advertising and publicity in which one or more existing or
future locations of Tenant within the trade area are
identified, enumerated or listed, Tenant shall identify or
include in such listing or enumeration the Premises in a
manner which gives to the Premises equal prominence with the
most
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prominent other trade area location so identified, listed or
enumerated. Failure of Tenant to comply with this subsection
shall be a default by Tenant entitling Landlord to exercise
its remedies pursuant to Article XIII. For the purposes of
this subsection:
(i) "Advertising and publicity" means all advertising
and publicity, in any form, type or media, which identifies or
lists any of Tenant's locations in the trade area, and shall
include advertising pursuant to Section 15.05, and all
advertising and publicity in connection with a "grand opening"
or other extraordinary event occurring or concerning any other
Tenant location in the trade area.
(ii) "Equal prominence" means that the tone, position,
color, type face, type style or other characteristics of the
listing or identification of the Premises are the same as or
as conspicuous to the listener, viewer or reader as the same
characteristics of the listing or identification of another
trade area location(s) of Tenant to which comparison is made.
(iii) The "trade area" means the County of Orange,
California.
ADVERTISING Section 15.05 See Addendum
EXPENDITURES (a) Tenant shall spend each lease year an amount equal to
not less than two percent (2%) of its gross sales for such
lease year on advertising its South Coast Plaza location in or
for magazines, newspapers, radio, television, direct mail
advertising or other measured media providing advertising
external to the Center and selected by Tenant, but providing
for distribution or dissemination within the primary trade
area of the Center. For this purpose and for the purpose of
subsection (c), the primary trade area of the Center shall be
the largest prohibited area described in Section 6.03 (without
reference to any typed or interlineated changes to such
Section). If Tenant includes one or more other locations in
any advertising pursuant to this Section then, so long as the
Premises is identified with equal prominence (as defined in
Section 15.04) to the identification of each such other
location, the amount to be credited against Tenant's
advertising requirement pursuant to this Section shall be
determined by multiplying the total cost to Tenant of such
advertising by a fraction, the numerator of which is one (1)
and the denominator of which is the total number of locations
listed or identified in such advertising. If the Premises is
identified less prominently than any other location, then no
portion of the cost of such advertising shall be credited
against Tenant's requirement pursuant to this Section.
(b) Tenant shall furnish to Landlord, together with the
annual statement furnished under Section 4.02(b), a statement
showing the amounts spent by Tenant on advertising its South
Coast Plaza location as provided in subsection (a) during the
preceding lease year, including all credits, if any, pursuant
to Section 15.07. If it shall appear from such statement or
from an audit of Tenant's records that Tenant has expended for
such advertising less than the required two percent (2%) of
gross sales as herein provided, Tenant shall pay the
difference between the amount actually expended for such
advertising and two percent (2%) of Tenant's gross sales for
such lease year to the Fund within thirty (30) days after
demand is made therefor by Landlord. The audit right specified
in Sections 4.03(a) and (b) shall extend to Tenant's books and
records as to advertising expenditures for the Premises, and
Landlord may examine such advertising records separately or
concurrently with any examination of Tenant's books and
records with respect to gross sales.
(c) In addition to Tenant's annual advertising
requirement set forth in this Section, Tenant shall spend on
advertising appearing during the period from thirty (30) days
prior to thirty (30) days subsequent to the date on which
Tenant opens the Premises for business an amount equal to two
(2) months initial Minimum Rent. Such expenditures shall be
limited to advertisements promoting the opening of the
Premises, and such media shall be as selected by Tenant and
any such media shall be distributed or disseminated in the
primary trade area of the Center. The first statement
submitted by Tenant pursuant to subsection (b) above shall
separately set forth the amount expended by Tenant pursuant to
this subsection (c), and if Tenant shall fail to spend the
amount required by this subsection, then Tenant shall pay the
difference between the amount required to be spent hereunder
and the amount actually spent by Tenant to the Fund within
thirty (30) days after demand is made therefor by Landlord.
ACCEPTANCE OF Section 15.06 See Addendum
CENTER GIFT For so long as Landlord or any agent or contractor of
CERTIFICATES Landlord sells gift certificates for redemption at Center
stores, Tenant shall accept such certificates at the Premises.
Sales made in exchange for gift certificates shall be treated
by Tenant on the same basis as cash sales. Tenant shall redeem
gift certificates exchanged at the Premises with Landlord or
Landlord's agent or contractor, as designated from time to
time by Landlord. Nothing herein shall obligate Landlord to
continue such gift certificate program for any particular
period of time or at all.
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PUBLICATIONS Section 15.07 See Addendum
PROGRAM In addition to all other advertising and promotional fund
ADVERTISING expenditures to be made by Tenant pursuant to this lease,
Tenant shall purchase advertisements of its location in the
Premises (only) in either (a) two (2) of the seasonal catalogs
prepared and disseminated annually by Landlord or (b) in any
other publications then included in Landlord's Publications
Program for the Center. To the extent that Tenant elects to
utilize alternative (b) for any advertisement(s), the cost of
such advertisement(s) placed in such other publication(s)
shall be at least equal to the then cost of an advertisement
in Landlord's seasonal catalog. Such advertisements shall be
of any size made available by Landlord and the costs thereof
shall be established by Landlord. The costs of such
advertisements shall not be credited against any other
obligation of Tenant pursuant to this lease; provided,
however, that any amount spent by Tenant pursuant to this
Section in excess of the cost of two (2) seasonal catalog
advertisements shall be credited against Tenant's annual
advertising requirement pursuant to Section 15.05. Nothing
herein shall require Landlord to continue the preparation and
distribution of such seasonal catalogs or to continue its
Publications Program, and if Landlord elects to cease
publishing such catalogs or to cease such Publications
Program, Landlord may designate other advertising vehicles to
be used by Tenant with a cost for such advertisements
equivalent to the cost of the two (2) required catalog
advertisements. If Tenant shall fail to place any
advertisement required by this Section or shall place and then
cancel any such advertisement, Tenant shall pay to the Fund as
additional rent and within ten (10) days after Tenant's
receipt of Landlord's invoice therefor, an amount equal to the
cost which Tenant would have incurred for such advertisement.
The particular seasonal catalogs and/or other publications in
which Tenant shall place its advertisements shall be selected
by Tenant from Landlord's Publications Program in effect from
time to time and need not be the same catalogs or other
publications from year to year.
SIGNS ON Section 15.08 See Addendum
EXTERIOR FASCIA Tenant acknowledges that it has been advised by Landlord
that Landlord's present sign policy and the ordinances of the
City of Costa Mesa substantially restrict signs on the
exterior fascia of the Center (i.e., the exterior of the
Center common areas). Accordingly, Tenant acknowledges that
Landlord has informed Tenant that Tenant may not place any
sign on the exterior fascia of the Center and Tenant agrees to
comply with such restriction. Nothing contained herein,
however, shall be deemed or construed to preclude Tenant's
signs (in conformity with the provisions of Exhibits "C" and
"E" hereto) on the exterior of the Premises fronting onto the
Enclosed Mall.
ARTICLE XVI.
MISCELLANEOUS
ESTOPPEL Section 16.01 See Addendum
STATEMENTS (a) Tenant shall, at any time and from time to time, upon
not less than twenty (20) days' prior written notice from
Landlord, execute, acknowledge and deliver to Landlord a
statement in writing (i) certifying that this lease is
unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that
this lease, as so modified, is in full force and effect) and
the dates to which the Minimum Rent and additional rent are
paid in advance, if any, (ii) acknowledging that there are
not, to Tenant's knowledge, any uncured defaults on the part
of Landlord hereunder, or specifying such defaults, if any are
claimed, and (iii) acknowledging (if true) the accuracy of
such other facts regarding Tenant, the Premises or this lease
as are included in such statement by Landlord. Any such
statement may be relied upon by any prospective purchaser or
encumbrancer of the Premises or of all or any portion of the
Center.
(b) Tenant's failure to deliver such statement within
such time period shall be conclusive upon Tenant (i) that this
lease is in full force and effect, without modification except
as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, (iii) that not
more than one month's Minimum Rent has been paid in advance
and (iv) that any other statements of fact regarding Tenant,
the Premises or this lease included by Landlord in the
statement are correct.
(c) Tenant shall be liable for all losses, costs and
expenses resulting from the failure of any sale or funding of
any loan caused by any material misstatement contained in any
estoppel certificate supplied by Tenant or the failure of
Tenant to deliver any statement required by this Section.
Tenant irrevocably appoints Landlord as attorney-in-fact for
Tenant with full power and authority to execute and deliver in
the name of Tenant any estoppel certificate if Tenant fails to
deliver the same within such twenty (20) day period, and such
certificate, as signed by Landlord, shall be binding on
Tenant.
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LANDLORD'S RIGHT Section 16.02 See Addendum
OF ACCESS Landlord and its agents shall have the right (a) to enter
the Premises at all reasonable times for the purposes of
examining or inspecting the same to ascertain if they are in
good repair, monitoring, improving and remedying indoor air
quality within the Center, taking field measurements for the
use of Landlord or any subsequent tenant of the Premises and
making such alterations, repairs, improvements or additions to
the Premises as Landlord may be required or permitted to make
hereunder, exhibiting the same to prospective purchasers,
lenders and tenants and posting notices which Landlord may
deem necessary for its protection and (b) at any time in an
emergency. Tenant shall cooperate with Landlord in exhibiting
the Premises to prospective purchasers, lenders and tenants.
Access by Landlord hereunder shall not, under the
circumstances, unreasonably interfere with Tenant's use and
enjoyment of the Premises, and Tenant waives any claim for
damages for any injury or inconvenience to or interference
with Tenant's business, occupancy or quiet enjoyment arising
out of any permitted entry by Landlord. Tenant acknowledges
that Landlord shall not retain a key to the Premises and may,
in any emergency, enter the Premises in any manner which
Landlord reasonably determines to be necessary, without
liability therefor to Tenant. No entry by Landlord pursuant to
this Section shall be deemed to constitute an eviction of
Tenant or a forcible detainer of the Premises.
TRANSFER OF Section 16.03
LANDLORD'S The term "Landlord" as used herein shall be limited to
INTEREST mean and include only the owner(s) at the time in question of
fee title to or a ground lease interest in the Center. In the
event of any transfer or transfers of the landlord's interest
in the Premises (other than a transfer for security purposes
only), the transferor shall be automatically relieved of any
and all obligations and liabilities on the part of the
landlord accruing from and after the date of such transfer. If
any security deposit has been made by Tenant, the landlord may
transfer such security deposit to such transferee, and
thereupon the transferor shall be discharged from any further
liability with respect thereto. Landlord and any transferee
shall have the absolute right to transfer its interest or any
portion thereof in the Center.
FLOOR AREA Section 16.04
(a) "Floor Area" as used in this lease means, with
respect to the Premises and with respect to each store
separately leased, the aggregate of (i) the number of square
feet of floor space on all floor levels, including mezzanines,
measured from the center line of party walls between tenant
areas and the exterior face of all other walls, and (ii) all
outside selling areas used for the sale of merchandise by
tenants, other than restaurant seating areas located outside
of the lease lines of restaurant premises either in the
Enclosed Mall or exterior common areas of the Center. No
deduction or exclusion from Floor Area shall be made by reason
of columns, stairs, elevators, escalators, or other interior
construction or equipment. Landlord may, at any time and from
time to time, make changes or additions to the Center which
result in an increase or decrease in the aggregate Floor Area
occupied or designed for occupancy by tenants of the Center;
provided, that, except as provided herein, no such change or
addition shall increase or decrease the Floor Area of the
Premises without Tenant's prior consent.
(b) Landlord shall, upon completion of Tenant's Work,
cause the Premises to be measured in accordance with the
provisions of this Section and shall notify Tenant in writing
as to the Floor Area as finally determined. In the event that
the Floor Area of the Premises as so determined is greater or
lesser than that set forth in the applicable Fundamental Lease
Provision, Landlord shall, effective as of the Rent
Commencement Date, adjust the monthly Minimum Rent (based upon
the per square foot rate set forth in the applicable
Fundamental Lease Provision) and all items of additional rent
based upon Floor Area (based upon the applicable charge rates
in effect at the Rent Commencement Date), and shall supply to
Tenant a statement setting forth, in reasonable detail, such
adjustments. Any additional Minimum Rent or additional rent
due as the result of such adjustment shall be paid by Tenant
to Landlord within ten (10) days after Tenant's receipt of
Landlord's statement; any overpayment by Tenant shall be
credited against the next rent payable by Tenant. Subsequent
to such adjustment, Tenant shall pay monthly Minimum Rent
based upon such adjusted Floor Area and all items of
additional rent based upon Floor Area in the adjusted amounts
set forth in such statement. Upon any change in the Floor Area
of the Center, Landlord shall make a similar adjustment to
additional rent pursuant to this Section.
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DEPOSIT AND Section 16.05 See Addendum
FINANCIAL (a) Tenant has deposited with Landlord the sum specified
STATEMENTS in the applicable Fundamental Lease Provision as security for
the full and faithful performance of every provision of this
lease to be performed by Tenant. If Tenant defaults with
respect to any provisions of this lease, including but not
limited to the provisions relating to the payment of rent,
Landlord may, but shall not be required to, use, apply or
retain all or any part of this security deposit for the
payment of any rent or other sum in default, or for the
payment of any other amount which Landlord may spend or become
obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default, including
without limitation, costs and attorneys' fees incurred by
Landlord to recover possession of the Premises upon a default
by Tenant hereunder. If any portion of said deposit is so used
or applied, Tenant shall, within five (5) days after receipt
of written demand therefor, deposit cash with Landlord in an
amount sufficient to restore the security deposit to its
original amount and Tenant's failure to do so shall be a
material breach of this lease. Landlord shall not be required
to keep this security deposit separate from its general funds,
and Tenant shall not be entitled to interest on such deposit.
If Tenant shall fully and faithfully perform every provision
of this lease to be performed by it, the security deposit
shall be applied against any amounts owed by Tenant to
Landlord at the expiration or termination of this lease and
any balance thereof shall be returned to Tenant (or at
Landlord's option, to the last assignee of Tenant's interest
hereunder) within thirty (30) days after Tenant delivers
possession of the Premises to Landlord.
(b) Tenant shall, prior to or upon its execution and
delivery of this lease to Landlord, provide to Landlord
current financial statements consisting of at least (i) a
balance sheet of Tenant as of a date within ninety (90) days
prior to Tenant's execution of this lease, (ii) an income or
profit and loss statement of Tenant for its last full fiscal
year and (iii) if Tenant's last full fiscal year ended more
than ninety (90) days prior to the date of Tenant's execution
of this lease, a profit and loss statement for the period from
the end of such last full fiscal year to a date within ninety
(90) days prior to the date of Tenant's execution of this
lease. If such financial statements are audited or reviewed by
an independent public accountant, such financial statements
shall be accompanied by the letter or certificate of such
accountant. Otherwise, such financial statements shall be
accompanied by a certificate executed by Tenant's chief
financial officer certifying as to the accuracy and
completeness of such financial statements.
LATE PAYMENTS Section 16.06 See Addendum
AND DELIVERIES (a) Any amount due from Tenant to Landlord hereunder
which is not paid to Landlord when due shall bear interest at
the maximum rate of interest which Landlord is then permitted
to charge by the applicable usury law, accruing from the date
due until the same is fully paid. Payment of such interest
shall not excuse or cure any default by Tenant pursuant to
this lease. Such rate shall remain in effect after the
occurrence of any breach or default hereunder by Tenant to and
until payment of the entire amount due.
(b) [Intentionally Deleted]
(c) [Intentionally Deleted]
SEPARABILITY Section 16.07
Any provision of this lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or
invalidate any other provision hereof, and such remaining
provisions shall remain in full force and effect.
TIME OF ESSENCE Section 16.08 See Addendum
Time is of the essence with respect to the performance of
every provision of this lease in which time of performance is
a factor. All references in this lease to "days" shall mean
calendar days unless specifically indicated to the contrary.
HEADINGS Section 16.09
The Article and Section captions contained in this lease
are for convenience only and shall not be considered in the
construction or interpretation of any provision hereof.
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INCORPORATION OF Section 16.10
PRIOR AGREEMENTS; This lease and the exhibits and any addenda hereto cover
AMENDMENTS; in full each and every agreement of every kind and nature
COUNTERPARTS whatsoever between the parties hereto concerning the Premises
and the Center, and all preliminary negotiations and
agreements of whatsoever kind with respect to the Premises or
the Center, except those contained herein, are superseded and
of no further force or effect. No person, firm or corporation
has at any time had any authority from Landlord to make any
representations or promises on behalf of Landlord, and Tenant
expressly agrees that if any such representations or promises
have been made by Landlord or others, Tenant hereby waives all
right to rely thereon. No verbal agreement or implied covenant
shall be held to vary the provisions hereof, any statute, law
or custom to the contrary notwithstanding. No provision of
this lease may be amended or added to except by an agreement
in writing signed by the parties hereto or their respective
successors in interest and, if Landlord has notified Tenant of
a lender to Landlord pursuant to Section 13.03, the written
consent of such lender. No employee or agent of Landlord shall
have authority, by letter, memorandum or other written
communication, to amend, vary or delete any provision of this
lease or any exhibit hereto, unless such written instrument
bears the signature of Landlord's managing general partner.
This lease shall be construed strictly neither against
Landlord nor Tenant. This lease shall be executed in several
counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
NOTICES Section 16.11 See Addendum
Any notice, consent or approval ("Notice") required or
permitted to be given hereunder shall be in writing and may be
served personally or by mail; if served by mail it shall be
addressed as specified in the applicable Fundamental Lease
Provision. Any Notice to Tenant may, after Tenant opens the
Premises for business, be sent instead to it at the Premises.
Any Notice which is personally served shall be effective upon
service; any Notice given by mail shall be deemed effectively
given, if deposited in the United States mail in the State of
California, registered or certified with return receipt
requested, postage prepaid and addressed to the Premises (for
Tenant) or as specified in the applicable Fundamental Lease
Provision, on the date of receipt, refusal or non-delivery
indicated on the return receipt. In addition, either party may
send Notices by FACS or by any reputable courier service which
provides written proof of delivery. Any Notice sent by FACS
shall be effective upon confirmation of receipt in legible
form, and any Notice sent by courier shall be effective upon
the date of delivery or refusal as set forth in the courier's
delivery receipt. Either party may, by Notice to the other
from time to time, specify a different address for Notice
purposes.
BROKERS Section 16.12 See Addendum
Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of
this lease, excepting only the broker, if any, named in the
applicable Fundamental Lease Provision, and that Tenant knows
of no other real estate broker or agent who might be entitled
to a commission in connection with this lease. Tenant
expressly agrees and covenants to hold Landlord harmless and
to defend Landlord (with counsel reasonably satisfactory to
Landlord) from any claims, threatened or asserted, by any
broker, finder or agent claiming under or through Tenant in
connection with the negotiation and execution of this lease.
Any broker or finder specified in the applicable Fundamental
Lease Provision shall be paid by Landlord, but only in such
amount(s) and at such time(s) as shall be agreed upon in
writing by Landlord and such broker or finder. Payment of any
broker or finder claiming through Tenant shall, except as set
forth in the immediately preceding sentence, be the sole
responsibility of Tenant.
WAIVERS Section 16.13 See Addendum
No waiver of any provision hereof shall be deemed a
waiver of any other provision hereof. Consent to or approval
of any act by one of the parties hereto shall not be deemed to
render unnecessary the obtaining of such party's consent to or
approval of any subsequent act. Failure of Landlord to take
any action or send any notice to Tenant shall not be deemed a
waiver by Landlord of any failure by Tenant to timely and
properly exercise any option granted to Tenant pursuant to
this lease or any amendment hereto. Any such option which is
not exercised within the time and in the manner specified for
exercise shall automatically lapse without requirement of any
action by Landlord. No act or thing done by Landlord or
Landlord's agents during the term of this lease shall be
deemed an acceptance of a surrender of the Premises, unless
done in a writing signed by Landlord. Tenant's delivery of
keys to any employee or agent of Landlord shall not operate as
a termination of this lease or a surrender of the Premises
unless done pursuant to a written agreement to such effect
executed by Landlord.
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RECORDING Section 16.14 See Addendum
Tenant shall not record this lease without the prior
written consent of Landlord. Tenant, upon the request of
Landlord, shall execute, acknowledge and deliver a "short
form" memorandum of this lease for recording purposes.
ADVERTISING AND Section 16.15 See Addendum
PROMOTIONAL FUND (a) Tenant acknowledges that Landlord has established a
promotional fund for the Center (the "Fund") to establish
centralized control of promotional policies, activities and
expenditures.
(b) The Fund shall be maintained and used as follows:
(i) Landlord shall operate the Fund to furnish and
maintain professional advertising and sales promotions for the
benefit of all contributing tenants of the Center. The
purposes of the Fund shall be to assist the businesses of
contributing tenants by sales promotions, group advertising
and other activities promoting contributing tenants and the
Center.
(ii) The initial annual contribution to the Fund by
Tenant shall be at the rate per square foot of Floor Area set
forth in the applicable Fundamental Lease Provision (or in the
minimum amount of $2,500 per year). Tenant's initial
contribution may be adjusted at the end of each lease year as
reasonably determined by Landlord to be necessary to cover
increased costs in operating the Fund and/or to advertise and
promote the Center in a manner satisfactory to Landlord. The
rate used for determining the amount of Tenant's contributions
to the Fund need not be the same rate used in determining the
amount of contributions to the Fund by other tenants of the
Center. Contributions to the Fund shall be additional rent
pursuant to this lease, and failure of Tenant to pay any
required contribution to the Fund as and when due shall be
deemed a default under this lease entitling Landlord to
exercise all remedies available to a landlord against a
defaulting tenant, including those set forth in Article XIII.
Such contribution shall be payable in equal monthly
installments in advance at the same times as Minimum Rent
payments are due.
(iii) Landlord agrees to contribute to the Fund each
lease year an amount equal to twenty-five percent (25%) of the
aggregate contributions of tenants of the Center to the Fund,
provided that Landlord's aggregate contribution to the Fund
for any lease year shall not exceed $30,000.
(iv) Landlord shall have the exclusive right to hire
a marketing director, secretary and other personnel who, in
Landlord's sole judgment, are required to carry out the
purposes of the Fund. All such personnel shall be under the
exclusive control and supervision of Landlord, who shall have
the sole authority and responsibility to hire and discharge
such personnel and to determine their compensation and
benefits. Landlord shall have the sole authority to direct the
performance by such personnel of their activities, including
but not limited to, placement of advertising, scheduling of
promotional events and attendance at trade or industry
conventions.
(v) Landlord shall have the exclusive right to
select a committee, composed of a representative of Landlord
and at least four (4) representatives of tenants at the
Center, to render advice to Landlord in connection with
promotional and advertising activities conducted through the
Fund. All such committee members shall be selected by and
shall serve at the pleasure of Landlord. The sole function of
such committee shall be to render advice when and if requested
by Landlord, and such committee shall have no approval or
consent rights with respect to Landlord's decisions concerning
the use of the Fund. Tenant (or Tenant's manager at the
Premises) shall serve as a member of such committee if so
requested by Landlord.
(vi) Nothing contained herein shall require Landlord
to spend more in any lease year in operating the Fund than
Landlord collects from tenant contributions to the Fund plus
Landlord's contribution specified above. Landlord may charge
all costs and expenses of operating the Fund in any lease year
against the budget therefor. Said costs and expenses may
include without limitation the following:
(A) the services of a marketing director and
all staff and outside consultants (including professional
marketing service organizations) deemed necessary by Landlord
to carry out effectively the purposes of the Fund, including
without limitation all payroll, payroll taxes and employee
benefits of any such director and staff;
(B) such reasonable amount of space within the
Center or elsewhere as may be necessary to operate the Fund,
the rental therefor to be comparable to the rentals for
similarly sized tenant spaces in the Center;
(C) all actual costs incurred in advertising
and promoting the Center, including without limitation radio,
newspaper, television, direct and indirect costs of services,
artwork, copy, printing, paper, stationery and supplies; and
(D) such office equipment, utilities and
telephones as may be deemed necessary by the promotional
director.
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(c) [Intentionally Deleted]
LIENS Section 16.16 See Addendum
Tenant shall do all things reasonably necessary to prevent
the filing of any mechanics' or other liens against the Center
or any part thereof by reason of work, labor, services or
materials supplied or claimed to have been supplied to Tenant,
or anyone holding the Premises, or any part thereof, through
or under Tenant. If any such lien shall at any time be filed
against the Center, 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 discretion and in
good faith determines that such lien should be contested,
shall furnish such security as may be necessary or required to
(a) prevent any foreclosure proceedings against the Center
during the pendency of such contest, and (b) cause Chicago
Title Insurance Company or other mutually satisfactory title
company to remove such lien as a matter affecting title to the
Center on a title report or title policy issued with respect
to the Center. If Tenant shall fail to either discharge such
lien or furnish such security within such period, then, in
addition to any other right or remedy of Landlord resulting
from Tenant's said default, Landlord may, but shall not be
obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien
by giving security or in such other manner as is, or may be,
prescribed by law. Tenant shall repay to Landlord, on demand,
all sums disbursed or deposited by Landlord pursuant to the
foregoing provisions of this Section 16.16, including
Landlord's costs, expenses and reasonable attorneys' fees
incurred in connection therewith, with interest thereon at the
rate determined pursuant to Section 16.06 from date of payment
by Landlord until repaid by Tenant. Nothing contained herein
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. Tenant shall give Landlord adequate
opportunity and Landlord shall have the right to post such
notices of nonresponsibility as are provided for in the
mechanics' lien laws of California.
SUBORDINATION Section 16.17 See Addendum
This lease shall, at Landlord's option, be either superior
or subordinate to all ground or underlying leases and any
mortgage, deed of trust or other security instrument that may
exist or hereafter be placed upon the Center or any part
thereof and to any and all advances to be made thereunder and
to the interest thereon and to all renewals, replacements and
extensions thereof. Tenant shall, within ten (10) days after
receipt of written demand by Landlord, (a) execute such
instruments as may be required at any time and from time to
time to subordinate the rights and interests of Tenant under
this lease to any such ground lease or the lien of any such
mortgage, deed of trust, or other security instrument, or, if
requested by Landlord, to subordinate any such ground lease,
mortgage, deed of trust or other security instrument to this
lease and (b) supply such financial information concerning
Tenant as may be requested by any ground lessor or lender.
Provided, however, that Tenant shall, in the event any
proceedings are brought for the termination of such ground
lease or the foreclosure of any such mortgage or deed of
trust, attorn to the ground lessor or purchaser upon
foreclosure sale or sale under power of sale, and shall
recognize such ground lessor or purchaser as landlord under
this lease, and, so long as Tenant is not in default
hereunder, such termination or foreclosure shall not terminate
this lease or otherwise affect Tenant's rights hereunder.
Tenant expressly waives any right to terminate this lease on
account of any such termination or foreclosure.
Without limiting the generality of the foregoing, Tenant
shall, promptly following the Rent Commencement Date, and
within ten (10) days after receipt of written request therefor
by Landlord, execute and deliver to Landlord six (6) copies of
a lease estoppel certificate in the form attached hereto as
Exhibit "I." Landlord shall, upon the occurrence of the Rent
Commencement Date, complete all information required in such
certificate and deliver execution copies of the certificate to
Tenant along with Landlord's written request pursuant to this
paragraph.
TENANT'S Section 16.18 See Addendum
AUTHORITY Each individual executing this lease on behalf of Tenant
represents and warrants that the execution and delivery of
this lease on behalf of Tenant is duly authorized, that he or
she is authorized to execute and deliver this lease on behalf
of Tenant and that this lease is binding upon Tenant in
accordance with its terms. If Tenant is a corporation, Tenant
shall also deliver to Landlord concurrently with executed
copies of this lease a certified copy of a resolution of
Tenant's board of directors or the executive committee thereof
authorizing or ratifying the execution of this lease. Failure
of Tenant to provide such resolution shall not, however,
relieve Tenant of its obligations pursuant to this lease.
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SAFETY AND Section 16.19 See Addendum
HEALTH (a) Tenant covenants at all times during the term of this
lease to comply with:
(i) The requirements of the Occupational Safety and
Health Act of 1970, 29 U.S.C. Section 651 et seq. and any
analogous legislation in California (collectively, the "Act"),
to the extent that the Act applies to the Premises and any
activities therein;
(ii) The Americans with Disabilities Act of 1990,
Chapter 31A of the California Code of Regulations, the latest
version of the Uniform Building Code adopted by the City of
Costa Mesa and all regulations promulgated under any of the
foregoing dealing with the handicapped (collectively, the
"ADA") including, without limitation, those provisions of the
ADA which apply to employment and access to public
accommodations and facilities, insofar as the ADA is
applicable to the Premises; and
(iii) California AB13 dealing with the smoking of
tobacco products in enclosed work places, any local ordinances
covering the same subject and all regulations issued under
such legislation or such ordinances (collectively, "AB13"), to
the extent applicable to the Premises.
(b) Without limiting the generality of the foregoing,
Tenant covenants to maintain all working areas, all machinery,
structures, electrical facilities and the like upon the
Premises in a condition that fully complies with the
requirements of the Act, ADA and AB13, including such
requirements as would be applicable with respect to agents,
employees or contractors of Landlord who may from time to time
be present upon the Premises, and Tenant agrees to indemnify
and hold harmless Landlord from any liabilities, claims or
damages arising as a result of a breach of the foregoing
covenant and from all costs, expenses and charges arising
therefrom including, without limitation, attorneys' fees and
court costs incurred by Landlord in connection therewith.
Tenant's compliance obligations pursuant to this Section shall
be at Tenant's sole cost and shall, if required, include (i)
implementation of policies relating to hiring, promotion and
other employment-related matters required by Title I of ADA
and (ii) implementation of readily achievable changes,
auxiliary aides and policies to facilitate reasonable access
as required by Title III of ADA.
INDEMNITIES Section 16.20
The obligations of the indemnifying party under each and
every indemnification and hold harmless provision contained in
this lease shall survive the expiration or earlier termination
of this lease to and until the last to occur of (a) the last
date permitted by law for the bringing of any claim or action
with respect to which indemnification may be claimed by the
indemnified party against the indemnifying party under such
provision or (b) the date on which any claim or action for
which indemnification may be claimed under such provision is
fully and finally resolved and, if applicable, any compromise
thereof or judgment or award thereon is paid in full by the
indemnifying party and the indemnified party is reimbursed by
the indemnifying party for any amounts paid by the indemnified
party in compromise thereof or upon a judgment or award
thereon and in defense of such action or claim, including
reasonable attorneys' fees incurred. Payment shall not be a
condition precedent to recovery upon any indemnification
provision contained herein.
NON-DISCLOSURE Section 16.21 See Addendum
OF LEASE TERMS Landlord and Tenant agree that the terms of this lease are
confidential and constitute proprietary information of the
parties hereto. Disclosure of the terms hereof could adversely
affect the ability of Landlord to negotiate with other tenants
of the Center. Each of the parties hereto agrees that such
party, and its respective partners, officers, directors,
employees, agents and attorneys, shall not disclose the terms
and conditions of this lease to any other person without the
prior written consent of the other party hereto except
pursuant to an order of a court of competent jurisdiction.
Provided, however, that Landlord may disclose the terms hereof
to any lender now or hereafter having a lien on Landlord's
interest in the Center, or any portion thereof, and either
party may disclose the terms hereof to its respective
independent accountants who review its respective financial
statements or prepare its respective tax returns, to any
prospective transferee of all or any portions of their
respective interests hereunder (including a prospective
sublessee or assignee of Tenant), to any lender or prospective
lender to such party, to any governmental entity, agency or
person to whom disclosure is required by applicable law,
regulation or duty of diligent inquiry and in connection with
any action brought to enforce the terms of this lease, on
account of the breach or alleged breach hereof or to seek a
judicial determination of the rights and obligations of the
parties hereunder.
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GENDER; TENANTS Section 16.22
The use of the masculine pronoun includes the feminine and
neuter genders; the use of the singular form of a pronoun
includes the plural and vice-versa. If there be more than one
person or entity indicated as Tenant herein, (a) each person
or entity subscribing as Tenant shall be jointly and severally
liable for all obligations of Tenant hereunder and (b) the act
or signature of or notice from or to any one or more of them
with respect to this lease shall be binding upon each and all
of the persons and entities subscribing as Tenant. Subject to
the provisions of Article X, the terms, conditions and
covenants contained herein shall be binding upon and inure to
the benefit of the heirs, successors, executors,
administrators, marital communities, if any, and assigns of
the parties hereto. Nothing herein shall constitute Landlord
and Tenant as partners or joint venturers.
FORCE MAJEURE Section 16.23 See Addendum
In the event that either Landlord or Tenant is delayed in
performing any obligation of Landlord or Tenant pursuant to
this lease by any cause beyond the reasonable control of the
party required to perform such obligation, the time period for
performing such obligation shall be extended by a period of
time equal to the period of the delay. For the purpose of this
Section:
(a) A cause shall be beyond the reasonable control of a
party to this lease when such cause would affect any person
similarly situated (such as a power outage, labor strike or
truckers' strike) but shall not be beyond the reasonable
control of such party when peculiar to such party (such as
financial inability or failure to order long lead time
materials sufficiently in advance).
(b) This Section shall not apply to any obligation to pay
money or delay the Rent Commencement Date.
(c) In the event of any occurrence which a party believes
constitutes a cause beyond the reasonable control of such
party and which will delay any performance by such party
hereunder, such party shall promptly in writing notify the
other party of the occurrence and nature of such cause, the
anticipated period of delay and the steps being taken by such
party to mitigate the effects of such delay.
YIELD UP Section 16.24
PREMISES At the expiration or earlier termination of this lease,
Tenant shall peaceably yield up the Premises and all additions
made upon the same and the keys thereto to Landlord within
fifteen (15) days after such expiration or termination date,
in the condition specified in Section 16.28(a) and shall
execute, acknowledge and deliver to Landlord, within five (5)
days after written demand from Landlord to Tenant, any
quitclaim deed or other document which may be reasonably
requested by any reputable title company to remove this lease
as a matter affecting title to the Premises on a title policy
or preliminary title report with respect to the Center.
RELOCATION OF Section 16.25 [Intentionally Deleted]
TENANT
NO OPTION Section 16.26 See Addendum
Submission of this lease to Tenant shall not be deemed to
be an offer or option for Tenant to lease the Premises or a
reservation of the Premises. Landlord shall not be bound
hereby until its delivery to Tenant of an executed copy hereof
signed by Landlord, already having been signed by Tenant, and
until such delivery Landlord reserves the right to exhibit and
lease the Premises to other prospective tenants.
Notwithstanding anything contained herein to the contrary,
Landlord may withhold delivery of possession of the Premises
to Tenant until such time as Tenant has paid to Landlord the
security deposit required by Section 16.05, the first month's
Minimum Rent pursuant to Section 3.01, the initial
contribution to the Fund required by Section 16.15, the Plan
Review fee required by Section 17.03, the clean-up deposit
required by Section 17.04, and any other sum owed pursuant
hereto, and has delivered to Landlord a certificate as to
Tenant's insurance pursuant to Article VIII, certified
resolutions pursuant to Section 16.18 (if applicable) and any
guaranty required with respect to Tenant's obligations.
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LANDLORD Section 16.27
LIABILITY The obligations of Landlord herein are intended to be
binding only on the property of the entity acting as Landlord
and shall not be personally binding, nor shall any resort be
had to the private properties of, the general partners thereof
or any employees or agents of Landlord. Without limiting the
foregoing, (a) no partner, agent or employee of Landlord shall
be personally liable for any amount payable by Landlord
hereunder, for the observance or performance of any
obligations or covenants of Landlord herein or for the breach
by Landlord of any representations or warranties, (b) any
judgment or decree in any action brought to enforce any
obligation of Landlord hereunder shall be enforceable against
its partners only against their respective partnership
interests in Landlord, (c) any such judgment or decree shall
not be subject to execution upon or be a lien upon the assets
of any partner other than such partner's interest in the
partnership assets of Landlord, and (d) neither a negative
capital account of a partner, nor any obligation of a partner
to restore a negative capital account, to contribute capital
to or to make a loan to Landlord, shall be a partnership asset
of Landlord, and Tenant shall not have any right to collect,
enforce or proceed against any partner of Landlord on account
of any such negative capital account, contribution obligation
or loan obligation.
TERMINATION Section 16.28 See Addendum
If this lease is terminated by either party under any
provision hereof, and upon the expiration of the term of this
lease (collectively, the "termination date"), the following
shall pertain:
(a) Tenant shall, within fifteen (15) days after the
termination date, remove from the Premises all merchandise,
furniture, furnishings, equipment and movable trade fixtures
and shall surrender the Premises to Landlord in the condition
required by Sections 7.02(c), 7.03 and 7.04. Tenant shall, at
Tenant's cost, repair any damage to the Premises caused by
such removal. Any items which Tenant is permitted to remove
but fails to remove prior to the surrender of the Premises to
Landlord shall be deemed abandoned by Tenant, and Landlord may
retain or dispose of the same as Landlord sees fit without
claim by Tenant thereto or to any proceeds thereof. If
Landlord elects to remove and dispose of any such items
abandoned by Tenant, the cost of such removal and disposal
shall be additional rent payable by Tenant to Landlord upon
demand. Tenant shall pay all amounts payable by it through
surrender of possession following the termination date and any
costs charged pursuant to the immediately preceding sentence,
each of the parties shall bear their own costs and fees
incurred (including all costs incurred in performing their
respective obligations hereunder) through surrender of
possession following the termination date and from and after
surrender of possession following the termination date neither
party shall have any further obligations to the other, except
for those obligations set forth in this subsection, in Section
16.16 and in subsection (b) below.
(b) Notwithstanding the provisions of subsection (a),
upon any such termination or expiration, the following shall
pertain:
(i) Landlord agrees to defend, indemnify and hold
harmless Tenant from and against any and all claims, costs,
expenses, losses, damages, actions and causes of action for
which Landlord is responsible under this lease and which
accrue on or before surrender of possession following the
termination date.
(ii) Tenant agrees to defend, indemnify and hold
harmless Landlord from and against any and all claims, costs,
losses, expenses, damages, actions and causes of action for
which Tenant is responsible under this lease and which accrue
on or before surrender of possession following the termination
date.
(iii) Tenant shall remain liable for the cost of all
utilities used in or at the Premises through surrender of
possession following the termination date accrued and unpaid,
whether or not then billed, as of surrender of possession
following the termination date until full payment thereof by
Tenant. Tenant shall obtain directly from the companies
providing such services closing statements for all services
rendered through surrender of possession following the
termination date and shall promptly pay the same. If any
utility statement with respect to the Premises includes
charges for a period partially prior to and partially
subsequent to surrender of possession following the
termination date, such charges shall be prorated as between
Landlord and Tenant, with Tenant responsible for the portion
thereof (based upon a fraction the numerator of which is the
number of days of service on such statement through surrender
of possession following the termination date and the
denominator of which is the total number of days of service on
such statement) through surrender of possession following the
termination date and Landlord shall be responsible for the
balance. The party receiving any such statement which requires
proration hereunder shall promptly pay such statement and the
other party shall, within ten (10) days after receipt of a
copy of such statement, remit to the party paying the
statement any amount for which such other party is responsible
hereunder.
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(iv) Tenant shall remain responsible for any taxes of the
type described in Section 5.03 and assessed against the
Premises and the personal property located therein or thereon
with a lien date prior to surrender of possession following
the termination date, irrespective of the date of the billing
therefor, and shall indemnify and hold Landlord harmless with
respect to any claims for such taxes or resulting from non-
payment thereof.
TAX BENEFITS Section 16.29
Landlord shall be entitled to all tax benefits arising
from all construction by Landlord with respect to the Premises
and any allowance provided by Landlord to Tenant pursuant to
this lease. Subject to the immediately preceding sentence,
Tenant shall be entitled to all tax benefits arising from
Tenant's Work with respect to the Premises pursuant to Section
17.03, arising from any alterations to or renovation of the
Premises conducted by Tenant or arising from the installation
by Tenant in the Premises of furniture, furnishings and
equipment. Neither party shall claim or attempt to claim any
tax benefits which are the property of the other party
hereunder. Prior to payment to Tenant of any tenant allowance,
Tenant shall supply to Landlord a detailed list of the items
included in Tenant's Work and their respective costs,
including costs of installation.
ACCORD AND Section 16.30 See Addendum
SATISFACTION (a) The receipt, retention, cashing, depositing or
endorsement by Landlord of any check, draft or other
instrument of payment delivered by Tenant or any proposed
assignee of or successor to Tenant shall not be deemed to be
an acceptance by Landlord of any attempted alteration,
assignment or notation written on said instrument by the maker
thereof.
(b) No payment by Tenant or receipt by Landlord of a
lesser amount than the rent herein stipulated shall be deemed
to be other than on account of the earliest accruing rent, nor
shall any endorsement or statement on any check or any letter
accompanying any such check or payment be deemed an accord and
satisfaction. Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance
of such rent or pursue any other remedy provided for in this
lease or available at law or in equity.
FINANCING Section 16.31 See Addendum
If any lending institution with which Landlord has
negotiated or may negotiate for financing for the Center
requires any changes to this lease, Tenant shall promptly
execute and deliver an amendment to this lease prepared by
Landlord and embodying such changes, so long as such changes
do not materially increase Tenant's obligations hereunder. In
the event that Tenant shall fail to execute and deliver such
amendment within twenty (20) days after receipt thereof by
Tenant, such failure shall constitute a default hereunder by
Tenant and shall entitle Landlord to all remedies available to
a landlord against a defaulting tenant pursuant to a written
lease, including but not limited to those remedies set forth
in Article XIII.
LANDLORD'S Section 16.32 [Intentionally Deleted]
CONSENT
MORTGAGEE CURE Section 16.33
RIGHTS Within ten (10) days after receiving written notice from
the holder of any mortgage, deed of trust or other security
interest (collectively, a "Mortgage") to the effect that such
Mortgage covers the Premises as a part of the property
encumbered by such Mortgage, Tenant shall, so long as the
Mortgage is outstanding, give to the holder of the Mortgage
the same notice and opportunity to correct any default on the
part of Landlord as is provided to Landlord pursuant to
Section 13.03. Such notices by Tenant to the holder of the
Mortgage shall be sent to the holder at the address specified
in the written notice from the holder to Tenant, and any such
notice may be given by Tenant to Landlord and such holder
concurrently. Tenant shall not be liable for failure to give
notice of any default by Landlord to the holder of the
Mortgage, but if Tenant fails to notify the holder of a
Mortgage of a default by Landlord hereunder, the time within
which such holder shall have the right to cure such default by
Landlord shall not commence to run until such holder shall
have been notified by Tenant of the default on the part of
Landlord.
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OBLIGATIONS OF Section 16.34
A MORTGAGEE In connection with any assignment of this Lease and/or the
rents payable hereunder, whether as security or absolute, in
connection with financing on all or part of the Center, Tenant
agrees that the holder of a Mortgage who receives an
assignment of Landlord's interest in this lease and/or the
rents hereunder in connection with such financing shall never
be treated as a mortgagee in possession or be liable for any
obligations of Landlord, even if such holder shall have
commenced collecting rents hereunder, until such time as the
holder shall have obtained actual legal title to or actual
physical possession of the Premises. Further, no holder of a
Mortgage or any other person or entity acquiring title to the
Premises through foreclosure or transfer by or in lieu of
enforcement of the lien of a Mortgage shall ever be
responsible or liable to Tenant for (a) damages or offset for
any default or act or omission by any predecessor landlord,
(b) any credit against Tenant's obligations under this lease
for rents prepaid more than one month in advance, (c) any
termination or assignment of this lease except strictly in
accordance with the terms of this lease and with the consent
of such holder, (d) any deposit or other sum held or on behalf
of Landlord as security for Tenant's performance hereunder
unless such security is transferred to such holder, (e) any
change to this lease made without the prior written consent or
written joinder of such holder or (f) any unperformed
construction obligation or other defaults of a continuing
nature which are cured within a reasonable time following the
acquisition by any such party of title to the Premises.
Further, notwithstanding anything to the contrary contained in
Section 16.27 or elsewhere in this lease, no holder of a
Mortgage or any other person or entity acquiring title to the
Premises through foreclosure or transfer by or in lieu of
enforcement of the lien of a Mortgage shall be personally
liable for the obligations of Landlord under this lease, nor
shall any resort be had to any assets of such holder or other
person other than such holder's or other person's interest in
the Center.
ARTICLE XVII.
CONSTRUCTION OF PREMISES
CONDITION OF Section 17.01 See Addendum
PREMISES Tenant accepts the Premises "AS IS" and after inspection
by Tenant, which inspection is confirmed by Tenant's signature
hereto. Tenant acknowledges that neither Landlord nor any
agent of Landlord has made any representation or warranty with
respect to the Premises or the Center or the suitability of
either for the conduct of Tenant's business.
DESIGN REVIEW Section 17.02 See Addendum
On or before the date specified in the applicable
Fundamental Lease Provision, Tenant and Landlord's architect
shall hold a preliminary design meeting (the "PDM"), to review
and discuss Tenant's Work pursuant to Section 17.04. The PDM
shall be subject to and in accordance with the following:
(a) Tenant shall be responsible to schedule the PDM
promptly upon receipt by Tenant of a fully executed copy of
this lease. The PDM shall be scheduled through Landlord's
architectural department at (714) 546-0110. Tenant shall not
commence preparation of working drawings and specifications
until the PDM has been held, and in no event will Landlord
review and approve working drawings and specifications until
the PDM has been held.
(b) Tenant shall cause its architect and any other
person(s), such as interior design consultants and
electrical/mechanical engineers employed by Tenant in
connection with Tenant's Work, whom Tenant believes will be
involved in the design of Tenant's Work, to attend the PDM.
Landlord shall cause its architect and any consultant(s)
deemed necessary by Landlord to participate in the PDM. If
Tenant or its architect/consultants are not located in the
geographical area in which the Center is located, the PDM may
be held by conference telephone call after submission of the
items required pursuant to subsection (c).
(c) At least three (3) days prior to the PDM, Tenant
shall deliver to Landlord's architect each of the following:
(i) A conceptual color board with colors and
materials which Tenant intends to use as part of Tenant's
Work;
(ii) A conceptual dimensioned storefront elevation
with all colors and materials identified and Tenant's sign
depicted on the Premises storefront or, in the alternative,
photographs, artists' renderings or a study model of
storefronts previously constructed by Tenant;
(iii) Material samples of the conceptual interior
floor covering and entry floor covering which Tenant proposes
to use in the Premises; and
(iv) Any other samples, photographs or renderings of
other Tenant locations which Tenant believes will be useful to
Landlord in reviewing and considering Tenant's proposed
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concept for the Premises. All materials submitted by Tenant
shall be tagged or otherwise identified to Tenant and shall be
dated. All such materials will be retained by Landlord until
completion of Tenant's Work.
(d) At the PDM, the following shall occur:
(i) Landlord's architect shall review Tenant's
submission and shall orally and in writing advise Tenant of
any items which do not meet the requirements of Exhibits "C"
and "E."
(ii) Landlord and Tenant shall establish a design
and construction schedule (in bar-chart form) for design and
construction of Tenant's Work. However, nothing contained on
such schedule shall be deemed or construed to alter or affect
the Rent Commencement Date.
(iii) Tenant shall designate one individual employee
or agent who shall be authorized to act on behalf of Tenant
with respect to all matters pertaining to this lease,
including all matters relative to Tenant's Work. Landlord may
treat any approval or consent given by such person as the
approval or consent of Tenant. Tenant may, by written notice
to Landlord, change its designated representative with respect
to matters arising after the date of Landlord's receipt of
such notice.
(e) The PDM is not a substitute for working drawings and
specifications, and no approvals given at the PDM shall be
construed as relieving Tenant of its responsibility to prepare
and submit such items. Any approvals given by Landlord at the
PDM will be as to concept only, and shall not relieve Tenant
of its obligation to comply with the specific criteria set
forth in Exhibits "C" and "E" nor eliminate Landlord's right
to require changes upon submission by Tenant of working
drawings and specifications. Required participation in a PDM
shall be waived only under special circumstances and only in a
writing signed by Landlord.
PLANS FOR Section 17.03 See Addendum
TENANT'S WORK (a) Promptly upon completion of the PDM, Tenant, at
Tenant's sole cost and expense, shall cause to be prepared and
delivered to Landlord for Landlord's approval four (4) sets of
working drawings and specifications ("working drawings")
prepared in conformity with the applicable provisions of
Exhibits "C" and "E" by a licensed architect approved by
Landlord. Landlord shall promptly notify Tenant of the
respects, if any, in which said working drawings fail to
conform to the applicable provisions of Exhibits "C" and "E,"
and Tenant shall promptly make any revisions necessary to
correct such matters and obtain Landlord's approval.
Landlord's approval, which shall not be unreasonably withheld
or delayed, shall be evidenced by Landlord's causing one (1)
set of such working drawings to be initialed on its behalf and
returned to Tenant.
(b) After Landlord's approval of the working drawings, no
change shall be made therein except as provided in this
subsection (b):
(i) No change may be made by either party without
the prior written consent of the other party (which shall not
be unreasonably withheld or delayed); and
(ii) All architectural services necessitated shall
be rendered by Tenant's architect at the expense of the party
requesting the change.
(c) For purposes of design and approval of Tenant's Work:
(i) Tenant's working drawings shall contain
detailed depictions of all aspects of Tenant's Work, and shall
be at least as detailed as the sample drawing and storefront
elevation attached to Exhibit "E."
(ii) Tenant shall be solely responsible to ensure
compliance with Divisions 1-4 of Title 24 of the California
Administrative Code. Accordingly, at or prior to the date that
Tenant submits its working drawings to Landlord, Tenant shall
submit to Landlord (A) engineered electrical drawings for the
Premises signed by an electrical engineer licensed in the
State of California and (B) a complete set of calculations
showing the electrical load for the Premises (upon completion
of Tenant's Work) and demonstrating compliance, both as to
electrical and mechanical requirements, with Title 24.
(iii) Landlord's review and approval of
specifications and working drawings pursuant to this Section
shall indicate no more than aesthetic approval. Approval by
Landlord shall not relieve Tenant of its obligation to obtain
all approvals and permits from all governmental authorities
having jurisdiction or constitute a warranty that any items
approved by Landlord comply with applicable law or any
requirements of governmental authorities having jurisdiction.
(d) [Intentionally Deleted]
TENANT'S WORK Section 17.04 See Addendum
(a) As a material consideration for the execution by
Landlord of this lease, Tenant agrees to construct tenant
improvements in the Premises with quality work using first
class materials. Such work of redecorating, remodeling and
renovating ("Tenant's Work") shall include a new storefront
and sign, new fixtures, and new wall and floor coverings.
Landlord and Tenant agree
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that Landlord shall, in exercising its approval rights with
respect to Tenant's Work, have the right to insist on a
distinctive, high quality store using only first class
materials and workmanship and meeting the specific criteria
set forth in this lease. Moreover, Landlord's insistence upon
production of a higher quality store (in terms of design,
materials and workmanship) than previously constructed by
Tenant in the Center or in any other location, as a condition
to the grant of any approval required to be obtained by Tenant
from Landlord, shall not be deemed to render Landlord's
approval or disapproval unreasonable. Subject to the
foregoing, however, Landlord's approvals pursuant to Section
17.03 shall not be unreasonably withheld so long as Tenant's
Work complies with all applicable requirements of Exhibits "C"
and "E" and governmental authorities having jurisdiction and
provides for a store of a quality commensurate with that of
the Center. Without limiting the generality of the foregoing,
Tenant's obligation to comply with applicable governmental
requirements shall include but not be limited to (i)
construction and equipping of any bathroom(s) required in the
Premises and (ii) compliance of Tenant's Work with the Act,
ADA and AB13, all as defined in Section 16.19. If Tenant
permits the smoking of tobacco products in any portion of the
Premises, Tenant shall be solely responsible to comply with
all requirements of AB13, including those requiring
modifications or additions to the ventilation system serving
the Premises. In such event, ventilation of smoke shall not be
to the Enclosed Mall or to Landlord's system serving the
Center, but must instead be through a separate ventilation
system to the outside air. Any such ventilation system shall
be subject to the prior written approval of Landlord and shall
not interfere with Landlord's ventilation system for the
Center.
(b) Tenant shall cause Tenant's Work to be performed by a
licensed general contractor or contractors approved by
Landlord, which approval must be obtained prior to
solicitation of contract bids. Tenant's Work shall be
commenced on or before the outside date for commencement of
such work specified in the applicable Fundamental Lease
Provision. Tenant shall cause Tenant's Work to be completed in
accordance with the applicable provisions of Exhibits "C," "E"
and "F" on or before the Rent Commencement Date and shall open
the Premises for business upon such completion, having
theretofore, at its sole expense, completed the equipping,
decoration and stocking of the Premises to the extent
necessary to enable it to so open for business. Tenant
acknowledges that it has ascertained those portions, if any,
of Tenant's Work which require a long lead time for
fabrication or delivery, that all such items will be available
in sufficient time to permit Tenant to complete Tenant's Work
by the Rent Commencement Date and that no delays arising from
late delivery of such items shall delay or affect the Rent
Commencement Date.
(c) Tenant's Work shall be at Tenant's sole cost and
expense and there shall be no allowance or abatement of any
kind by Landlord to or for Tenant on account of Tenant's Work,
or the cost thereof. The provisions of Section 16.16 shall be
specifically applicable to Tenant's Work, and Tenant shall
promptly furnish to Landlord upon completion of Tenant's Work
(i) a copy of a Notice of Completion with respect to Tenant's
Work showing thereon the recording stamp of the Orange County
Recorder, (ii) evidence reasonably satisfactory to Landlord
that all of Tenant's Work has been paid in full and that no
claim of any mechanic or materialman may become a lien on the
Premises and (iii) a copy of the inspection card for Tenant's
Work with all final signatures thereon. As and when progress
payments are made by Tenant with respect to Tenant's Work,
Tenant shall obtain, from each person furnishing labor or
material with respect to Tenant's Work, unconditional waivers
and releases of lien claims in the forms required by
California Civil Code Section 3262.
(d) Landlord and Tenant acknowledge that review by the
City of Costa Mesa (the "City") of plans for and issuance of a
permit with respect to Tenant's Work may require several weeks
due to the backlog of projects currently in the City awaiting
review and approval. Landlord has made arrangements to
expedite such process by use of an independent engineer
approved by the City. Accordingly, in connection with Tenant's
Work, Tenant shall enter into an Accelerated Building Plan
Review Agreement (the "Agreement") with the City and an
engineer approved by the City and substantially in the form of
Exhibit "F" attached hereto. All plans with respect to
Tenant's Work requiring City approval shall be submitted to
such engineer for review and approval and all fees and costs
incurred in such review and approval process shall be borne by
Tenant. Landlord shall cooperate with Tenant as required in
effecting such review and approval (including executing the
Agreement if required), but all costs and fees in connection
therewith shall be borne by Tenant.
(e) Prior to commencement of Tenant's Work in the
Premises, Tenant or Tenant's general contractor shall deposit
with Landlord the sum of $3,000 if the Floor Area of the
Premises is less than 3,000 square feet and $5,000 if the
Floor Area of the Premises is 3,000 square feet or larger, to
insure the full and faithful compliance by Tenant's contractor
of its clean-up and trash removal obligations pursuant to
Exhibit "E" and completion of all punch-list work. If Tenant's
contractor defaults with respect to any such obligation,
Landlord may use, apply or retain any part of this deposit for
the payment of any amount which Landlord may spend or become
obligated to spend by reason of Tenant's contractor's default,
or to compensate Landlord for any other loss or
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damage which Landlord may suffer by reason of Tenant's
contractor's default. Landlord shall not be required to keep
this deposit separate from its general funds, and the
depositor shall not be entitled to interest on such deposit.
If Tenant's contractor shall fully and faithfully perform each
of its clean-up, trash removal and punch-list obligations,
this deposit shall be applied against any other amounts owed
by the depositor to Landlord at the time of such fulfillment
of Tenant's contractor's obligations and any balance thereof
shall be returned to the depositor within the time specified
in California Civil Code Section 1950.7.
(f) [Intentionally Deleted]
(g) Any additional work of remodeling during the lease
term shall be subject to all of the provisions of Sections
7.03 and 16.16, this Article XVII and the applicable
provisions of Exhibits "C," "E" and "F" hereto, subject,
however, in each case to the use of such time period(s) and
date(s) therefor as shall be agreed upon by Landlord and
Tenant.
(h) Failure of Tenant to perform its obligations pursuant
to this Article XVII in timely fashion shall be deemed a
default by Tenant pursuant to this lease entitling Landlord to
exercise all remedies available to a landlord against a
defaulting tenant, including but not limited to those provided
in Article XIII.
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IN WITNESS WHEREOF, the parties have executed this lease, consisting
of the foregoing provisions, any typed addenda appended hereto and all Exhibits
attached hereto, on the dates indicated below, the latter of which shall be
deemed the date of execution of this lease.
SOUTH COAST PLAZA, a partnership
By C. J. Segerstrom & Sons, a general partnership,
Managing General Partner
By /s/ HENRY T. SEGERSTROM
--------------------------------------------
Manager
By /s/ JEANETTE E. SEGERSTROM
--------------------------------------------
Manager
"Landlord"
Date: June 10, 1998
---------------------------
ST. JOHN KNITS, INC.,
a California corporation
[CORPORATE SEAL]
By /s/ DAN DEMILLE V.P.
--------------------------------------------------
Title
By Dan DeMille V.P.
--------------------------------------------------
Title
"Tenant"
Date: June 9, 1998
---------------------------
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ADDENDUM TO LEASE DATED JUNE 5, 1998
BETWEEN SOUTH COAST PLAZA,
a CALIFORNIA GENERAL PARTNERSHIP,
as LANDLORD, and ST. JOHN KNITS, INC.,
a CALIFORNIA CORPORATION, as TENANT
-----------------------------------
Section 1.01 Premises
- ------------ --------
Notwithstanding anything to the contrary contained in Section 1.01 of the
lease form:
(a) All work by Landlord pursuant to clauses (a) and (b) of such Section
shall be performed in a manner which causes the least practicable interference
with the operation of Tenant's business in the Premises.
(b) In the event of any work by Landlord pursuant to either or both of such
clauses (a) and (b), Landlord shall, promptly upon completion of such work and
at Landlord's cost, repair, restore and redecorate all affected portions of the
Premises to substantially the same condition as prior to the commencement of
such work by Landlord.
(c) The last sentence of Section 1.01 of the lease form shall have no
application with respect to this lease.
(d) The Floor Area of the Premises includes certain mezzanine space which
Tenant may or may not retain when Tenant performs Tenant's Work pursuant to
Addendum Section 17.02. Whether or not Tenant retains some or all of such
mezzanine space (i.e., Tenant may demolish some or all of the mezzanine), (i)
the Minimum Rent shall be based upon the current Floor Area of the Premises as
set forth in the applicable Fundamental Lease Provision assuming that all of the
mezzanine remains intact and (ii) additional rent shall be based upon the actual
Floor Area of the Premises, measured as provided in Section 16.04 of the lease
form after giving effect to Tenant's Work (i.e., removal of some or all of the
mezzanine).
Section 2.02 Commencement Date and Rent Commencement Date
- ------------ --------------------------------------------
(a) Tenant acknowledges that the Premises are currently operated by the
proprietor of the Barneys New York store ("Old Tenant") pursuant to a lease (the
"Old Lease") which terminates by its own terms on July 31, 1998 (the "Surrender
Date"). Landlord and Tenant agree that:
(i) Landlord shall not extend the term of the Old Lease or Old
Tenant's right to occupy the Premises beyond the Surrender Date.
(ii) In the event that Old Tenant fails to vacate and surrender
the Premises on or before the Surrender Date, Landlord shall use reasonable
efforts to cause Old Tenant to vacate and surrender possession as promptly as
practicable thereafter. Such reasonable efforts may, but need not, include the
filing by Landlord of a legal action to recover possession of the Premises from
Old Tenant.
(iii) Promptly following recovery of possession of the Premises
from Old Tenant, Landlord shall perform any work required pursuant to Addendum
Section 17.01 and deliver possession to Tenant in the manner provided in
subsection (b) below.
(b) The Lease Commencement Date of this lease shall be that date on which
Landlord shall deliver to Tenant possession of the entire Premises. Delivery of
possession shall be by not less than five (5) days prior written notice from
Landlord to Tenant setting forth the date on which the Premises shall be
available and ready for Tenant to commence Tenant's Work pursuant to Section
17.04 of the lease form and Addendum Section 17.02. Landlord and Tenant
acknowledge that they contemplate that the Lease Commencement Date shall be on
August 1, 1998. From and after the Lease Commencement Date, Tenant shall
observe and perform all obligations of the tenant pursuant to this lease, other
than those requiring the payment of Minimum Rent, Percentage Rent and additional
rent.
(c) The Rent Commencement Date of this lease shall be the 120th day
following the Lease Commencement Date. From and after the Rent Commencement
Date, Tenant shall observe or perform all obligations of the tenant pursuant to
this lease, including those requiring the payment of Minimum Rent, Percentage
Rent and additional rent.
(d) Within thirty (30) days following the Rent Commencement Date, Landlord
and Tenant shall execute a letter agreement setting forth the Lease Commencement
Date and the Rent Commencement Date of this lease. However, failure of Tenant
to execute and deliver such letter agreement shall not affect Landlord's
determination of the Lease Commencement Date and Rent Commencement Date in
accordance with the provisions of this lease.
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(e) Notwithstanding anything to the contrary in this lease, if Landlord
does not deliver possession of the Premises to Tenant by August 30, 1998, Tenant
may elect not to open for business in the Premises until February 14, 1999. If
Tenant so elects, the Rent Commencement Date shall not occur, and Tenant shall
not be obligated to pay rent until the earlier of February 14, 1999 or the date
upon which Tenant opens for business in the Premises.
(f) In the event that Landlord does not deliver possession of the entire
Premises to Tenant on or before November 30, 1998 (the "Adios Date"), then
Tenant shall have the option to terminate this lease. Such option shall be
exercised, if at all, by written notice from Tenant to Landlord given at any
time after the Adios Date and prior to the date upon which Landlord delivers
possession of the entire Premises to Tenant pursuant to subsection (b) above.
If Tenant is not entitled to exercise such option or is entitled to exercise
such option but fails to do so in the manner and within the time herein
specified, such option shall lapse and thereafter shall not be exercisable.
If Tenant is entitled to exercise such option and timely and properly does
so, then (i) this lease shall terminate on the date of Landlord's receipt of
Tenant's notice of exercise, (ii) Landlord shall promptly return to Tenant any
funds deposited by Tenant pursuant to this lease, (iii) each party shall bear
its own costs and fees incurred in the negotiation and preparation of this lease
and in performing its respective obligations hereunder through the date of
termination and (iv) neither party shall have any further rights or obligations
pursuant to this lease. Pending any termination of this lease pursuant to this
subsection, each party shall diligently pursue its respective obligations
pursuant to this lease.
Section 2.04 Termination of Existing Lease
- ------------ -----------------------------
Landlord and Tenant acknowledge that Tenant currently operates a "St. John
Knits" store in Suites 2401 and 2407 (the "Current Premises") pursuant to a
lease dated June 25, 1992 (the "Current Lease"). Within three (3) days
following the date upon which Tenant opens for business in the Premises, Tenant
shall relocate from the Current Premises to the Premises, vacate the Current
Premises and surrender the Current Premises to Landlord. Such relocation,
vacation and surrender shall be in accordance with the following:
(a) Such relocation shall be the sole responsibility of Tenant, both as to
performance and payment of the costs thereof. Moreover, such relocation shall
be conducted in accordance with all reasonable instructions or directions of the
general manager of the Center or his designee.
(b) Vacation and surrender of the Current Premises shall be in accordance
with Section 16.28 of the Current Lease, except that such surrender shall be
effected within three (3) days after Tenant opens for business in the Premises.
(c) Upon surrender of possession of the Current Premises and the keys
thereto to Landlord, the Current Lease shall terminate. Such termination shall
be in accordance with Section 16.28(b) of the Current Lease.
(d) In connection with the surrender of the Current Premises, Tenant may
remove such movable items as Tenant elects to remove and shall not be required
to demolish any of the improvements to the Premises.
Section 3.01 Minimum Rent; Increases
- ------------ -----------------------
(a) Subject to the provisions of subsection (b) below, and Sections
10.01(e) and 16.04(b) of the lease form, monthly Minimum Rent shall be as
follows:
(i) For the period from the Rent Commencement Date through
January 31, 2003, the sum of $76,920 ($60.00 per square foot of Floor Area per
year).
(ii) For the period from February 1, 2003 through January 31,
2007, the sum of $84,612 ($66.00 per square foot of Floor Area per year).
(iii) For the period from February 1, 2007 through January 31,
2011, the sum of $93,586 ($73.00 per square foot of Floor Area per year).
(iv) For the balance of the lease term, the sum of $102,560
($80.00 per square foot of Floor Area per year).
(b) In the event that, pursuant to Section 16.04(b) of the lease form, the
final Floor Area of the Premises is determined to be greater or lesser than that
set forth in the applicable Fundamental Lease Provision, monthly Minimum Rent
shall be redetermined using the final Floor Area of the Premises as so
determined and one-twelfth (1/12th) of the per annum rates set forth in
subsection (a) above.
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(c) The second sentence of Section 3.01(a) of the lease form shall be
deleted. The first monthly payment of Minimum Rent shall be made on or before
the Rent Commencement Date.
(d) The language "a thirty (30) day" appearing in the last sentence of
Section 3.01(a) of the lease form shall be amended to read "an actual calendar."
The term "360" appearing in such sentence shall be amended to read "365."
Section 3.03 Percentage Rent
- ------------ ---------------
(a) Subject to the provisions of subsection (b) below, the annual
Percentage Rent breakpoints shall be as follows:
(i) For the period from the Rent Commencement Date through
January 31, 2003, the sum of $15,384,000.
(ii) For the period from February 1, 2003 through January 31,
2007, the sum of $16,922,400.
(iii) For the period from February 1, 2007 through January 31,
2011, the sum of $18,717,200.
(iv) For the balance of the lease term, the sum of $20,508,000.
(b) In the event of any change in the Minimum Rent pursuant to Sections
10.01(e) or 16.04 of the lease form or Addendum Section 3.01(b), the annual
Percentage Rent breakpoints shall be redetermined in the manner provided in
Section 3.03(a) of the lease form.
(c) The term "lease year" appearing in Section 3.03(a) of the lease form
shall be amended to read fiscal year each place where such term appears. The
term "partial lease year" appearing in such Section shall be amended to read
"partial fiscal year." The term "360" appearing in the last sentence of the
first paragraph of such Section shall be amended to read "365."
(d) The first sentence of Section 3.03(b) of the lease form shall have no
application with respect to this lease. The language "place the Percentage Rent
on a lease year basis" appearing in the second sentence of such Section shall be
amended to read "reflect accounting changes to Tenant's gross sales for such
full or partial lease year." The last sentence of such Section shall have no
application with respect to this lease.
(e) The following shall be deleted from Section 3.03(c)(i) of the lease
form:
(i) The language "the amount allowed upon any `trade-in'."
(ii) The language "all direct mail sales . . . at the Premises."
(iii) The language "and from advertising . . . for others."
(iv) The language "without deduction . . . credit accounts."
In addition, the words "gross proceeds" appearing in the first sentence of such
Section and the words "gross receipts" appearing in the second sentence of such
Section shall be amended to read "net proceeds" and "net receipts." the words
"such transaction is entered into" appearing in the next to last sentence of
such Section shall be amended to read "such sale is recorded as a sale on
Tenant's books and records."
(f) The words "from the Premises" appearing in the first sentence of
Section 3.03(c)(ii) shall be deleted.
(g) Notwithstanding anything to the contrary contained in Section 3.03 of
the lease form, during each fiscal year (as defined in subsection (j) below) or
partial fiscal year, Tenant shall not be required to make monthly payments on
account of Percentage Rent to and until Tenant's aggregate fiscal year to date
gross sales exceed Tenant's Percentage Rent breakpoint for such fiscal year or
partial fiscal year. Accordingly, for the month in which Tenant's fiscal year
to date aggregate gross sales first exceed Tenant's Percentage Rent breakpoint
for such fiscal year or partial fiscal year, Tenant shall pay, on account of
Percentage Rent, an amount equal to six percent (6%) of such excess. For each
succeeding month of such fiscal year or partial fiscal year, Tenant shall pay,
on account of Percentage Rent, an amount equal to six percent (6%) of Tenant's
gross sales for such month. All such payments shall be made concurrently with
Tenant's delivery of its gross sales statement for such month (i.e., within
twenty (20) days after the expiration of each calendar month).
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(h) Any refund due to Tenant on account of an overpayment by Tenant of
Percentage Rent for any fiscal year shall be credited against the next rent
payable by Tenant to Landlord pursuant to this lease. If such overpayment is
equal to or greater than one month's Minimum Rent, such overpayment shall be
refunded to Tenant, without interest, within thirty (30) days after
determination of the amount of the overpayment. At the expiration or earlier
termination of this lease, any such overpayment shall be offset against any
amounts owed and unpaid by Tenant to Landlord pursuant to this lease and the
balance shall be refunded to Tenant, without interest, within thirty (30) days
after such expiration or earlier termination.
(i) Notwithstanding anything to the contrary contained in Section 3.03(b)
of the lease form:
(i) Deposits received by Tenant for purchase of merchandise or
services at the Premises shall be included in gross sales only upon the first to
occur of completion of the sale generating such deposit or the occurrence of the
date (by passage of time or otherwise) upon which Tenant is no longer required
to refund such deposit to the depositor.
(ii) Gross receipts from direct mail sales by Tenant (or any
affiliate or parent of Tenant) and from catalog sales, telephone sales,
televideo and other electric and electronic media sales of all types by Tenant
(or any affiliate or parent of Tenant) shall be allocated to the gross sales of
the Premises or other premises of Tenant or Tenant's parents or affiliates in
accordance with Tenant's general operating policies, provided that such policies
do not have the effect of unfairly discriminating against allocation to the
Premises.
(iii) Gross sales shall not include (or if included there shall be
deducted to the extent of such inclusion):
(A) Uncollected or uncollectible credit accounts, bounced
checks and other bad debts. In the event that Tenant recovers any amount on
account of an item deducted pursuant to this clause, the amount so recovered
shall be included in gross sales for the month of such receipt.
(B) Sales taxes, excise taxes, gross receipts taxes, and
other taxes now or hereafter imposed upon the sale or value of merchandise or
services and collected from customers or included in the retail selling price,
except that no value added tax, no franchise or capital stock tax, and no
income, gross receipts or similar tax based upon income, profits or gross
receipts shall be deducted or excluded from gross sales.
(C) Any exchange or transfer of goods or merchandise between
the stores, outlet stores or warehouses of Tenant, except to the extent Landlord
can reasonably demonstrate by a preponderance of the evidence that specific
exchanges were made for the purpose of depriving Landlord of the benefits of a
sale that otherwise would have been made at or from the Premises.
(D) The amount of any cash or credit refund made in respect
of any merchandise or services returned to or issued from the Premises.
(E) Merchandise or services sold or made available by Tenant
to its employees at the Premises at a discount of not less that thirty-three
percent (33%) of the retail price.
(F) Returns to shippers or manufacturers.
(G) Sales of fixtures, machinery or equipment which are not
a part of Tenant's stock in trade.
(H) Charges by Tenant to its customers for shipping and
alterations, where such charges approximate Tenant's costs of providing such
services.
(I) Direct cash donations made by Tenant to recognized tax-
exempt charities or organizations which represent a portion of sales made as
part of charity benefits or other fund-raising events for such charities or
organizations held in the Premises.
(J) The value of any trading stamps or similar promotional
devices or methodology issued or used by Tenant for the benefit of its customers
and without charge to its customers upon redemption of such stamps in the
Premises.
(K) Credits or payments in settlement of claimed losses.
(L) Punitive damages or treble damages received in antitrust
litigation.
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(M) Receipts from public telephones and vending machines
used solely by Tenant's employees.
(N) Proceeds from sales of gift certificates from the
Premises. Upon redemption of any gift certificates at the Premises (irrespective
of the place of sale of such certificates) the amounts redeemed shall be
included in gross sales at or from the Premises.
(O) Charges or discounts (on payments to Tenant) made by
credit card issuers in connection with credit card sales accepted by Tenant at
the Premises.
(P) Wholesale sales made by the wholesale division of
Tenant, including wholesale sales at trunk shows, as defined in clause (vii)
below.
The amount excluded by Tenant pursuant to clauses (E) and (I) for any fiscal
year or partial fiscal year shall not exceed, in the aggregate, two percent (2%)
of Tenant's gross sales for such fiscal year or partial fiscal year, determined
prior to such exclusions.
(iv) Gross receipts from telephone sales by Tenant (or any
affiliate or parent of Tenant) shall be allocated to the gross sales of the
Premises or other premises of Tenant or Tenant's parent or affiliate in
accordance with Tenant's general operating policies, provided that such policies
do not have the effect of unfairly discriminating against allocation to the
Premises.
(v) Each sale made upon an installment or credit basis or made on
a so-called "layaway" basis shall be treated as a sale for the full price of the
merchandise and services sold in the month in which such sale is treated as a
sale or income by Tenant.
(vi) With respect to any trunk show, as defined below, held by
Tenant within the area described in Section 6.03 of the lease form, only fifty
percent (50%) of the gross receipts from such trunk show shall be included in
gross sales from the Premises. For the purposes of this provision, a trunk show
shall mean a preview sale or show which (A) is held not more than twice per year
within the area described in Section 6.03 of the lease form, (B) is by
invitation to customers or potential customers of Tenant, (C) consists of
merchandise which is not yet in stock at the Premises and which will not be in
stock at the Premises for at least thirty (30) days following the trunk show,
(D) includes merchandise bearing the labels which Tenant carries or is permitted
to carry in the Premises and (E) is conducted as a special event for which
Tenant provides special items not normally included with a periodic sale at the
Premises, such as models, catering and travel for special sales representatives
from Tenant's corporate offices. For the purposes of this provision, Landlord
and Tenant agree that a trunk show shall be a special event as recognized in
Tenant's industry, as opposed to a normal periodic sale.
(j) Notwithstanding anything herein to the contrary, Tenant shall calculate
its gross sales and pay its Percentage Rent due thereon, if any, on the basis of
Tenant's fiscal year. Such fiscal year is presently the period from November 1
through the next succeeding October 31. In the event that the Minimum Rent rate
and Percentage Rent breakpoint change during any fiscal year or partial fiscal
year pursuant to Addendum Section 3.01 and this Section, Landlord and Tenant
shall make any adjustments required to determine a Percentage Rent breakpoint
for such fiscal year or partial fiscal year and Tenant shall pay its Percentage
Rent for such period on the basis of the Percentage Rent breakpoint determined
for such period. The parties acknowledge that there shall be a partial fiscal
year ending October 31, 1999 at the commencement of the term of this lease and a
partial fiscal year ending January 31, 2014 at the expiration of the term of
this lease. The Percentage Rent breakpoint for any partial fiscal year at the
commencement and expiration (or earlier termination) of the lease term shall be
prorated in the manner provided in Section 3.03(a) of the lease form.
Section 3.04 Rent Defined
- ------------ ------------
The term "ten (10)" appearing in Section 3.04 of the lease form shall be
amended to read "thirty (30)."
Section 4.01 Records
- ------------ -------
(a) Clauses (f), (g), (h) and (j) of Section 4.01 of the lease form shall
have no application with respect to this lease. The following shall be added at
the end of the next to last sentence of such Section: "which observations shall
not interfere with the conduct of Tenant's business."
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(b) Notwithstanding anything to the contrary contained in Section 4.01 of
the lease form:
(i) By its signature hereto, Landlord approves Tenant's use in the
Premises of an STS cash register system or such other point of sale system which
automatically records sales made for reporting and retaining sales information.
(ii) Initially, upon any audit conducted by or at the direction of
Landlord, Landlord shall be entitled to review or audit only Tenant's records as
to gross sales. Landlord shall be entitled to review other records pertaining
to sales of the types described in such Section only if, in Landlord's
reasonable judgment, Tenant's gross sales records are insufficient for Landlord
to reasonably determine the amount of Tenant's gross sales from the Premises for
any period.
(iii) For so long as Tenant's financial statements (alone or
consolidated with any parent of Tenant) are audited by any reputable national or
regional independent certified public accounting firm, Tenant need not maintain
the records described in clauses (a) through (h) of such Section but may
maintain only those records described in clause (i) of such Section.
Section 4.02 Statements of Gross Sales
- ------------ -------------------------
(a) The term "fifth (5th)" appearing in Section 4.02(a) of the lease form
shall be amended to read "twentieth (20th)." The word "retail" shall be added
before the word "calendar" in such Section.
(b) The term "tenth (10th)" appearing in Section 4.02(b) of the lease form
shall be amended to read "sixtieth (60th)." The term "lease year" appearing in
such Section shall be amended to read "fiscal year" in each place where such
term appears.
(c) The language "such form . . . reasonably determines" appearing in the
first sentence of Section 4.02(c) of the lease form shall be amended to read
"the form of Exhibit "J" attached hereto."
(d) Within thirty (30) days after the end of each fiscal year or partial
fiscal year, Tenant shall supply to Landlord by telephone Tenant's then best
estimate of Tenant's gross sales for such fiscal year or partial fiscal year.
Such telephone call shall be initiated by Tenant to Landlord's accounting
department and shall be without prejudice to any year end adjustments to such
gross sales initiated by Tenant or Tenant's auditors. Tenant shall supply to
Landlord its final, certified statement of gross sales for each fiscal year or
partial fiscal year within sixty (60) days after the expiration of such fiscal
year or partial fiscal year, which statement shall set forth Tenant's final
gross sales after giving effect to any such adjustments.
Section 4.03 Audit
- ------------ -----
(a) The term "five (5) days" appearing in the first sentence of Section
4.03(b) of the lease form shall be amended to read "thirty (30) days." The last
sentence of such Section shall have no application with respect to this lease.
(b) Notwithstanding anything to the contrary contained in Section 4.03 of
the lease form:
(i) In the event that Landlord does not commence an audit of
Tenant's gross sales for any fiscal year or partial fiscal year within three (3)
years after delivery to Landlord of Tenant's final certified gross sales
statement with respect to such fiscal year or partial fiscal year, the gross
sales as reported by Tenant for such fiscal year or partial fiscal year shall be
final and conclusive upon Landlord and Tenant.
(ii) Landlord's audit right shall be limited to those records
which Tenant is required to maintain pursuant to Addendum Section 4.01.
(iii) Any audits of Tenant's gross sales conducted by Landlord
shall be no more frequent than once during any fiscal year. In addition, no more
than one (1) such audit shall be conducted by Landlord with respect to any
fiscal year.
(iv) If Tenant shall not, within sixty (60) days after receipt of
an audit report, in writing in reasonable detail object to such report, such
report shall be conclusive and binding upon Landlord and Tenant.
(v) If Tenant shall object to any audit report in the manner and
within the time specified in clause (iv), Tenant and Landlord shall endeavor to
agree upon any deficiency (or lack thereof) with respect to the period(s)
covered by such audit. Any such agreement shall be reduced to writing, executed
by Landlord and Tenant and conclusive and binding upon Landlord and Tenant.
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(vi) If Tenant shall object to any audit report in the manner and
within the time specified in clause (iv), and if such objection shall not be
disposed of pursuant to clause (v) within sixty (60) days after Tenant's
objection, then either party may demand by written notice to the other that the
matter be resolved by arbitration. In such event, the following shall pertain:
(A) The arbitration shall be conducted in Orange County,
California in accordance with the then rules of the American Arbitration
Association and this subsection.
(B) Within twenty (20) days after arbitration is demanded by
written notice, each party shall designate one arbitrator by written notice to
the other party. Within twenty (20) days after the designation of the second
arbitrator, the two arbitrators shall select a third arbitrator. If either party
shall fail to designate its arbitrator within such twenty (20) day period, the
other party may appoint such arbitrator at any time thereafter and prior to such
designation. If the two designated arbitrators shall fail to select a third
arbitrator within twenty (20) days after the designation of the second
arbitrator, the third arbitrator shall be appointed by the presiding judge of
the Orange County Superior Court (or his or her designee) upon application by
either party. Each arbitrator designated or selected pursuant to this subsection
shall be a licensed certified public accountant with ten (10) years of
experience in retail sales.
(C) The arbitration shall be held as promptly as practical
after the selection of the third arbitrator and in any event within sixty (60)
days after such selection. The decision of the arbitrators or any two of them
shall be conclusive and binding upon Landlord and Tenant and may include a
designation of a prevailing party.
(D) If either party shall be designated as the prevailing
party in such proceedings (i.e., the decision of the arbitrators most closely
approximates such party's position), the other party shall bear the reasonable
costs and fees of all three arbitrators. If no party is designated as the
prevailing party, then each party shall bear the costs and fees of the
arbitrator designated by it and one-half (1/2) of the costs and fees of the
third arbitrator. Each party shall also bear its own expenses, including
attorneys' fees, incurred in the arbitration proceeding.
(E) Pending the decision of the arbitrators, Tenant shall
not be required to pay any deficiency set forth in the audit report (or the cost
of the audit, if applicable). Within thirty (30) days after receipt of the
decision of the arbitrators, Tenant shall pay any deficiency determined by the
arbitrators, the reasonable costs of the audit, if applicable, interest on any
deficiency as provided in Section 4.03(c) of the lease form, and if Landlord is
declared the prevailing party, the reasonable costs and fees of the three
arbitrators. Within thirty (30) days after receipt of the decision of the
arbitrators, Landlord shall refund to Tenant any overpayment determined by the
arbitrators with interest thereon as provided in Section 4.03(c) of the lease
form, pay the reasonable costs of the audit incurred by Tenant and Tenant's
costs and fees incurred in connection with the arbitration, if applicable, and
if Tenant is declared the prevailing party, the reasonable costs and fees of the
three arbitrators. The pendency of an arbitration proceeding pursuant to this
subsection shall not stop the accrual of interest pursuant to Section 4.03(c) of
the lease form.
(F) Either party may have judgment entered in any court of
competent jurisdiction upon any arbitration decision rendered pursuant to this
subsection.
(vii) If either party shall fail to designate its arbitrator
within the time specified herein, the other party may, by written notice to the
party failing to so designate, elect to have the matter determined by the sole
arbitrator designated by such electing party. In such event, the decision of
such sole arbitrator shall be final and binding upon the parties and the costs
and fees of such sole arbitrator shall be divided equally between Landlord and
Tenant.
(viii) If neither party elects an arbitration within thirty (30)
days after the expiration of the sixty (60) day period specified in clause (iv)
above, either party shall be free to thereafter file a legal action to have such
dispute determined. In the event that such legal action is filed and served
prior to an election to arbitrate, such dispute shall be settled pursuant to
such action rather than through arbitration.
(c) In the event that there shall be no increase in Tenant's gross sales as
the result of any audit conducted by Landlord, then Landlord shall pay to
Tenant, within twenty (20) days after Landlord's receipt of reasonable
documentary evidence as to such costs, the reasonable out-of-pocket costs
incurred by Tenant in connection with such audit, including Tenant's fees and
costs incurred in connection with any arbitration proceeding pursuant to
subsection (b) above.
Section 5.02 Definitions
- ------------ -----------
(a) The words "commonly known as real estate taxes and" shall be added
after the word "surcharges" in clause (i) of Section 5.02(a) of the lease form.
The language "but not including special assessments with respect to the original
construction of the Center" shall be added at the end of the clause (ii) of such
Section. The words "and used exclusively in the operation and maintenance of
the Center" shall be added at the end of clause (ii) of such Section.
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(b) For the purposes of clauses (iii), (iv) and (v) of Section 5.02(a) of
the lease form, the taxes payable by Tenant thereunder shall be limited to (i)
taxes imposed in lieu of taxes upon real property or increases in taxes upon
real property and (ii) taxes and other charges used to fund a service provided
by any governmental authority for which funding was historically provided by
taxes upon real property.
(c) Landlord represents and warrants to Tenant that:
(i) There is no work currently in process or pending at the Center
which will be the subject of a special assessment after the date of this lease
and there is no special assessment against the Center which is being paid as of
the date of this lease.
(ii) The management offices of the Center are, and will be during
the term of this lease, limited only to servicing the Center. Neither Landlord
nor any other person or entity is conducting in such offices a general real
estate, real estate brokerage or other business.
Section 5.03 Other Taxes
- ------------ -----------
The words "if requested by Tenant" appearing in the third sentence of
Section 5.03 of the lease form shall be deleted. The words "of payment"
appearing in such sentence shall be amended to read "twenty (20) days after
demand."
Section 6.01 Use of Premises
- ------------ ---------------
(a) The word "entire" appearing in the third sentence of Section 6.01 of
the lease form shall be deleted. The words "continuously and uninterruptedly"
appearing in the fourth sentence of such Section shall be deleted. The words
"time to time . . . including Sundays" appearing in such fourth sentence shall
be amended to read "set forth in Addendum Section 6.01." The language "Except
as provided in Addendum Section 6.01," shall be added at the beginning of the
fifth sentence of such Section. The sixth sentence of such Section shall be
deleted in its entirety.
(b) The Premises consists of space located on the second and third levels
of the Center. Tenant shall, as a part of Tenant's Work pursuant to Addendum
Section 17.02, develop the Premises as two separate but physically connected
stores as follows:
(i) One store shall be a fashion apparel and accessories store
operated under the tradename "St. John Knits" ("Store No. 1"). Store No. 1
shall be on two (2) levels and shall, subject to clause (vi) below and Addendum
Section 6.03(g), consist of not less than 5,000 square feet of Floor Area and
not more than 10,000 square feet of Floor Area, with a vertical connection
between the two levels.
(ii) The other store shall be a home store operated under the
tradename "Amen Wardy Home" ("Store No. 2"). Store No. 2 shall initially be on
two (2) levels and shall, subject to clause (vi) below, consist of not less than
3,000 square feet of Floor Area and not more than 10,000 square feet of Floor
Area.
(iii) Each of Store No. 1 and Store No. 2 shall be physically
connected on each level and each store shall have a separate customer entrance
and separate storefront signage on each level.
(iv) Notwithstanding the development of the Premises as Store No.
1 and Store No. 2, the Premises shall be treated as a single store for purposes
of calculation of Minimum Rent, gross sales, Percentage Rent and additional rent
pursuant to this lease.
(v) Subject to the limitations contained in clauses (i), (ii) and
(iii) above, Tenant may during the term of this lease change the allocations of
Floor Area as between Store No. 1 and Store No. 2. Any remodeling or renovation
required in connection with such reallocation of Floor Area shall be the sole
responsibility of Tenant, both as to performance and payment of the costs
thereof, and shall be subject to all applicable provisions of this lease.
(vi) Notwithstanding the provisions of clauses (i), (ii), (iii)
and (v) above, Tenant may eliminate the Amen Wardy Home store at the Premises,
subject to each of the following:
(A) Tenant concurrently eliminates (i.e., closes) all Amen
---
Wardy Home stores then operated by Tenant or any parent, subsidiary or affiliate
of Tenant.
(B) Concurrently with such elimination Tenant adds the
portion(s) of the Premises previously operated as an Amen Wardy Home store to
the St. John Knits store at the Premises (i.e., the entire Premises are operated
as a St. John Knits store). Any remodeling or renovation required in connection
with clause (A) above and
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this clause (B) shall be the sole responsibility of Tenant, both as to
performance and payment of the costs thereof, and shall be subject to all
applicable provisions of this lease.
(C) If Tenant eliminates the Amen Wardy Home store from the
Premises pursuant to this clause (vi), neither Tenant nor any parent, subsidiary
or affiliate shall thereafter, during the term of this lease or any renewals or
extension thereof, open a home store within Orange County, California, either
under the name Amen Wardy or under any other name used or developed by Tenant or
its parents, subsidiaries or affiliates (such as St. John Knits Home).
(c) Subject to clause (vi) of subsection (b) above and Addendum Section
6.03(g), Store No. 2 shall be used solely for the retail sale of furniture and
home accessories as typically carried at the Amen Wardy Home stores at the Forum
Shops in Las Vegas, Nevada and in Aspen, Colorado.
(d) Store No. 1 shall be used principally and primarily for the retail sale
of fashion ladies ready to wear apparel and secondarily for the retail sale of
closely related accessories. As used herein, the term "principally and
primarily" shall mean that such merchandise shall occupy at least seventy-five
percent (75%) of the sales area of Store No. 1. The term secondarily shall mean
that such merchandise shall not occupy more than twenty-five percent (25%) of
the sales area of Store No. 1.
With respect to the apparel carried in Store No. 1 at least
sixty-five percent (65%) of such apparel shall bear the label "St. John Knits."
The balance of such apparel shall bear labels or brand names proprietary to
Tenant or its parents, subsidiaries or affiliates, such as "St. John Sport" and
"Griffith & Gray," except that not more than ten percent (10%) of such apparel
may bear labels or brands not proprietary to Tenant or its parents, subsidiaries
or affiliates, but with label or brand name quality comparable to the quality of
the St. John Knits label. The accessories carried in Store No. 1 may but need
not bear labels or brands proprietary to Tenant or its parents, subsidiaries or
affiliates so long as such labels or brands have a quality comparable to the
quality of the "St. John Knits" label.
(e) Tenant shall be required to be open for business in the Premises only
during the following hours on the following days:
Non-Holiday Season
(January 1 to November 7
------------------------
Monday-Friday 10:00 a.m. to 9:00 p.m.
Saturday 10:00 a.m. to 7:00 p.m.
Sunday 11:00 a.m. to 6:30 p.m.
Holiday Season
(November 8 to December 31
---------------------------
Monday-Friday 10:00 a.m. to 10:00 p.m.
Saturday 10:00 a.m. to 10:00 p.m.
Sunday 10:30 a.m. to 7:30 p.m.
There are certain exceptions to such hours, such as:
Easter Sunday Closed
Memorial Day 10:00 a.m. to 6:00 p.m.
Independence Day 10:00 a.m. to 6:00 p.m.
Labor Day 10:00 a.m. to 6:00 p.m.
Thanksgiving Day Closed
Day After Thanksgiving 9:00 a.m. to 10:00 p.m.
Christmas Day Closed
News Years Day 11:00 a.m. to 6:00 p.m.
Moreover, such hours are subject to change, from time to time, by Landlord upon
notice to tenants of the Center, based upon changes in shopping patterns, the
days of the week upon which certain holidays fall, wind-drift and other factors
deemed relevant by Landlord.
(f) Notwithstanding the foregoing subsection (e), Tenant shall be obligated
to be open for business only on those hours and during those days when (i) any
two (2) of the Sak's, Macy's Men's, Nordstrom and Macy's stores are open for
business and (ii) seventy-five percent (75%) of the other stores in the Sak's,
Macy's Men's, Macy's, Nordstrom wing of the Center (upper and lower levels) are
open for business. For the purposes of this provision and any other provision
of this lease where reference is made to the Sak's, Macy's Men's, Nordstrom and
Macy's stores, such reference shall mean the store buildings currently operated
under such names, and both parties recognize that such store buildings may be
hereafter operated under other names by successors or assigns of the current
operators. For the
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purposes of this provision, the Sak's, Macy's Men's, Nordstrom and Macy's wing
of the Center shall mean that portion of the Center located to the West of the
dotted line appearing on Exhibit "A" attached hereto.
(g) Notwithstanding the foregoing subsections (e) and (f), Tenant may be
closed during any period (i) of repair or restoration following a casualty or
condemnation to the extent reasonably required thereby or in connection with any
remodeling or renovation of the Premises by Tenant, (ii) where such closure is
otherwise specifically permitted pursuant to this lease and (iii) not more than
five (5) days per calendar year for the purposes of taking inventory at the
Premises, redecorating the Premises or such other business activities with
respect to the Premises which reasonably require such closure. No such closure
pursuant to clause (iii) shall be during the holiday season as defined in
subsection (e) above.
(h) Notwithstanding the provisions of Section 6.01 of the lease form,
Tenant may, without the prior written consent of Landlord, change the tradename
of Store. No. 2 to the same tradename to which Tenant (or its parents,
subsidiaries and affiliates) concurrently changes the tradename of all stores
then operated by Tenant or its parents, subsidiaries or affiliates under the
tradename "Amen Wardy Home." Provided, that with respect to any such change in
tradename pursuant to this subsection:
(A) The new tradename shall reflect or denote a quality of
use comparable to the high quality of use of the Premises required by this lease
and shall not indicate any off-price, discount, cut-rate, wholesale or other low
end use of Store No. 2.
(B) The last sentence of clause (vi)(B) of subsection (b)
above shall apply with respect to any change in Tenant's signage for Store No. 2
as a result of such change in tradename.
(C) Neither Tenant nor any parent, subsidiary or affiliate
of Tenant shall, during the term of this lease or any renewals or extensions
thereof, open or operate any store in Orange County, California under the
tradename "Amen Wardy Home," any variant thereof or any tradename which includes
such tradename.
Section 6.02 Restrictions on Use
- ------------ -------------------
(a) The words "standard All Risk insurance" shall be added before the word
"coverage" in the first sentence of Section 6.02(a) of the lease form. The
words "tend to" appearing in the third sentence of such Section shall be
deleted. The words "create an ultrahazardous . . . reputation of the Center"
appearing in such Section shall be deleted. The words "standard policy of all
risk" shall be added before the word "insurance" in such Section.
(b) The word "absolutely" appearing in the first sentence of Section
6.02(e) of the lease form shall be deleted. The following shall be added at the
end of such Section: "unless and only to the extent permitted by applicable
laws and regulations."
(c) Landlord hereby represents and warrants to Tenant that:
(i) Tenant's proposed use of the Premises as specifically
permitted by this lease complies with the applicable zoning for the Premises.
(ii) In the event that Tenant constructs Tenant's Work
solely for the purposes specifically permitted pursuant to this lease, the only
governmental approvals which shall be required in connection with such
construction shall be a demolition permit, a building permit and a certificate
of occupancy (which will be based upon periodic governmental inspections of
Tenant's Work as Tenant's Work proceeds). The foregoing representation and
warranty does not extend to a kitchen, special exhaust systems or any special
equipment not typically found in a retail clothing store.
(d) Notwithstanding the provisions of Section 6.02(a) of the lease form:
(i) Tenant may accept deliveries to the Premises at any time
when the Center is open to the public. Any deliveries after 10:00 a.m. on days
when the Center is open for business shall be through the rear service door of
the Premises.
(ii) Any regulations adopted by Landlord pursuant to such
Section shall not and shall not be enforced so as to unduly interfere with the
conduct of Tenant's business in the Premises as specifically permitted by this
lease.
(e) The rules and regulations provided for in Section 6.02 of the lease
form shall be enforced in a uniform and nondiscriminatory manner against tenants
of the Center other than the department stores.
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(f) Landlord shall indemnify, defend and hold harmless Tenant, and its
successors, assigns, partners, officers, employees, agents, lenders and
attorneys from and against any and all claims, liabilities, losses, actions,
costs and expenses (including reasonable attorneys' fees and costs of defense
incurred by such indemnified persons, or any of them) as a result of (i) the
introduction into or about the Center by Landlord or Landlord's agents,
employees, contractors, invitees or other persons claiming under Landlord (other
than tenants) of hazardous materials, (ii) the usage, storage, maintenance,
generation, production or disposal by Landlord or Landlord's agents, employees,
contractors, invitees or other persons claiming under Landlord (other than
tenants) of hazardous materials in or about the Center, (iii) the discharge or
release in or about the Center by Landlord or Landlord's agents, employees,
contractors, invitees or other persons claiming under Landlord (other than
tenants) of any hazardous materials, (iv) any injury or death of persons or
damage to or destruction of property resulting from the use, introduction,
maintenance, storage, generation, disposal, disposition, release or discharge by
Landlord or Landlord's agents, employees, contractors, invitees or other persons
claiming under Landlord (other than tenants) of hazardous materials in or about
the Center and (v) any failure by Landlord or Landlord's agents, employees,
contractors, invitees or other persons claiming under Landlord (other than
tenants) to observe the restrictions set forth in Section 6.02(c) of the lease
form.
(g) Any termination of this lease by Landlord pursuant to the next to last
paragraph of Section 6.02(c) of the lease form shall be only after Tenant fails
to perform an obligation pursuant to such Section, Landlord gives to Tenant a
notice to cure pursuant to Section 13.01 of the lease form and Tenant fails to
cure or commence to cure within the applicable grace period.
(h) Landlord has caused an inspection to be made of the Premises for the
purpose of determining the presence therein of asbestos bearing materials. Such
inspection was performed at Landlord's cost by an inspection firm selected by
Landlord and licensed to conduct such inspections. Landlord shall cause such
firm to prepare a report of such inspection. Landlord shall cause a copy of
such report to be delivered to Tenant promptly upon completion of such report.
Based upon an oral report by Landlord's consultant and Landlord's ownership and
operation of the Center since its construction, Landlord represents and warrants
that there are no asbestos bearing materials in the Premises and that there will
be no such materials in the Premises upon delivery of possession to Tenant.
In the event that any such materials are discovered by Tenant during
the course of Tenant's Work in the Premises, then:
(i) Tenant shall promptly notify Landlord in writing;
(ii) Landlord shall, as promptly as practicable and at Landlord's sole
cost and expense, remove all such materials from the Premises; and
(iii) The Rent Commencement Date shall be extended by a period of
days equal to the number of days of delay in completion of Tenant's Work
occasioned by the presence of such materials, the removal thereof by Landlord,
interference with Tenant's Work, the need to redo or reconstruct any of such
Tenant's Work following Landlord's removal of such materials and any scheduling
problems for Tenant's contractor occasioned by the presence or removal of such
materials.
(i) Notwithstanding anything to the contrary contained in the third and
fifth paragraphs of Section 6.02(c) of the lease form, Tenant shall be required
to reimburse Landlord for the cost of any such audit, inspection or testing only
if the audit, survey or testing discloses the presence in the Premises of
hazardous materials brought into the Premises by Tenant or any agent, employee,
contractor or other person for whom Tenant is responsible.
Section 6.03 Other Locations
- ------------ ---------------
(a) The words "Except as otherwise provided in Addendum Section 6.03,"
shall be added at the beginning of Section 6.03(a) of the lease form.
(b) The sale by Tenant (or any parent, subsidiary or affiliate of
Tenant) of merchandise at wholesale to department store and specialty store
operators who are not franchisees, licensees, parents, subsidiaries or
affiliates of Tenant and who operate stores within the prohibited area shall not
violate the provisions of Section 6.03 of the lease form.
(c) Those trunk shows specifically permitted by clause (vi) of
Addendum Section 3.03(i)(vii) shall not be deemed to violate the provisions of
Section 6.03 of the lease form.
(d) A shop-in-shop shall not include a department in a department
store operated under the name of or bearing signage with the name of "St. John
Knits" so long as such department is not operated by Tenant or any parent,
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subsidiary, affiliate, franchisee, licensee or concessionaire of Tenant and
Tenant does no more then sell merchandise at wholesale to the operator of the
store.
(e) The provisions of Section 6.03 of the lease form shall not be
violated by the acquisition by Tenant or any parent, subsidiary or affiliate of
Tenant of any store or chain of stores so long as any store operated in Orange
County, California is not a "competing store" as defined in Section 6.03(c)(ii)
of the lease form and subsection (f) below. The provisions of this subsection
shall permit both:
(i) The acquisition of an existing store or group of stores, one or
some or all of which may be located in Orange County, California; and
(ii) The acquisition of an existing store or group of stores, all of
which are located outside of Orange County, California, and the subsequent
addition to such store or stores of an additional store or stores of the same
type and tradename in Orange County, California,
so long as any such store(s) operated in Orange County, California (whether
- ----------
acquired or opened after the acquisition) are not "competing stores." For this
purpose, any such store operated in Orange County, California shall be a
competing store only if (A) such store is operated under one of the tradenames
"St. John Knits," "Amen Wardy" or any tradename identified or described in
subsection (f) below and/or (B) such store sells merchandise bearing the labels
"St. John Knits," "Amen Wardy" or any tradename identified or described in
subsection (f) below. By way of example, operation of a store under the
tradename or selling merchandise under the label "St. John Sport" would be
prohibited by this subsection (unless specifically permitted under another
provision of this lease), while operation of a store under the tradename or
selling merchandise under the labels "Mondy" or "T.J. Maxx" would be permitted.
(f) For purposes of the definition of a competing store in Section
6.03(c)(ii) of the lease form, "merchandise" shall include merchandise bearing
the labels "St. John Knits," "St. John Sport," "Griffith & Gray" and any other
proprietary label hereafter developed by Tenant or any parent, subsidiary or
affiliate of Tenant, such as "St. John Knits Men's." With respect to St. John
Sport apparel, Griffith & Gray apparel and any apparel sold under any
proprietary tradename hereafter developed by Tenant or any parent, subsidiary or
affiliate of Tenant (such as St. John Knits Men's), for the first five (5) full
lease years of the lease term, Tenant shall not be permitted to own or operate a
competing store within the prohibited area described in Section 6.03 of the
lease form. If, as to any such line of merchandise, Tenant desires to operate a
separate store after such five (5) year period, Tenant shall first, in writing,
offer to Landlord the opportunity to lease a separate, free-standing store at
the Center. Upon receipt of such offer, Landlord and Tenant shall, in good
faith, attempt to agree upon the terms of a lease for such line of merchandise.
If Landlord does not have a space suitable for such store, or if Landlord and
Tenant are unable to reach agreement upon the terms of a lease for such store
within sixty (60) days after such offer by Tenant, then, in either such event,
Tenant shall be free to lease and operate a competing location for such line of
merchandise within the prohibited area but outside of the area depicted on
Exhibit "B-2(B)." The provisions of this subsection (f) shall be separately
applied with respect to each of the merchandise lines described in this
subsection (i.e., St. John Knits men's apparel, St. John Sport, Griffith & Gray,
etc.). Moreover, the provisions of this subsection shall be separately applied
on each occasion that Tenant approaches Landlord for a location at the Center
for each such merchandise line. The provisions of this subsection shall not
apply to a store under the tradenames "St. John Knits" or "Amen Wardy."
(g) In the event that, at any time during the term of this lease, Tenant
determines that it needs the entire Premises for the operation of the "St. John
Knits" store (including the non-St. John Knits label merchandise permitted to be
sold in such store), Tenant shall so advise Landlord in writing and offer to
lease space for a separate, free-standing "Amen Wardy" store in the Center or in
South Coast Plaza Crystal Court (the "Other Center"). Such offer ("Tenant's
Offer") shall indicate the approximate size of the space required for such "Amen
Wardy" store. Upon receipt of Tenant's Offer, Landlord shall in good faith
reasonably attempt to locate and offer in writing to Tenant space in the Center
and/or in the Other Center for such "Amen Wardy" store meeting the size
requirement specified by Tenant, and shall use reasonable efforts to offer to
Tenant in writing at least two such spaces (in the Center, in the Other Center
or one each in the Center and the Other Center). Any such written offer or
proposal by Landlord ("Landlord's Proposal") shall identify the space(s) offered
to Tenant, the Floor Area(s) of such space(s) and the rent, lease term and other
terms and conditions upon which Landlord proposes to lease such space(s) to
Tenant. Landlord's Proposal shall also include the estimated date of
availability of each space identified therein.
Following delivery of Landlord's Proposal, Tenant shall in good faith in
writing accept or reject the space offered to Tenant and, if more than one space
is offered to Tenant, may accept one space and reject the other or may reject
all spaces offered to Tenant. If Tenant accepts any space offered to Tenant (a
"Tenant Acceptance"), Landlord and Tenant shall proceed in good faith to
prepare, attempt to agree upon and execute and deliver a new lease covering the
space identified in the Tenant Acceptance.
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If (i) Landlord is unable to locate and offer to Tenant a space or spaces
within twelve (12) months after Tenant's Offer, or (ii) Tenant rejects all
space(s) covered by Landlord's Proposals within such twelve (12) month period or
(iii) there is a Tenant Acceptance as to any space offered but Landlord and
Tenant are unable to agree upon and execute and deliver a new lease covering the
space identified in the Tenant Acceptance, then, in any such event, Tenant shall
be free to (A) close the "Amen Wardy" store in the Premises, (B) expand the "St.
John Knit" store into the entire Premises and (C) lease and operate an "Amen
Wardy" store within Orange County, California outside of the area depicted on
Exhibit "B-2(B)."
(h) Notwithstanding the provisions of Section 6.03 of the lease form,
ownership by any officer or director of Tenant of any stock or profit and loss
interest in any entity which operates a competing store shall not violate the
provisions of such Section 6.03 so long as (i) such officer or director is not
an officer, director, employee, general partner or otherwise in a position which
permits such shareholder to direct the policies of such entity and (ii) such
officer or director is not otherwise active in the operations of such entity.
Section 7.01 Landlord's Obligations
- ------------ ----------------------
For the purposes of Section 7.01 of the lease form:
(a) Landlord's maintenance and repair obligations shall include all
utilities lines serving other portions of the Center (not including the
Premises) but located within the Premises and all utilities mains serving the
Center, including the Premises.
(b) Tenant's maintenance and repair obligations shall include all
utilities lines exclusively serving the Premises, whether located outside of or
within the Premises, to Tenant's points of connection to Landlord's mains. For
this purpose, Landlord warrants that the sewer and water lines serving the
Premises are already located under and within the Premises and that Tenant's
electrical connection for the Premises will be an electrical board sufficient
for 100 amperage service within fifty (50) feet of the demising line of the
Premises.
(c) Features to be maintained and repaired by Landlord will include roof
decking, the subfloor of the Premises, the structural components of the Center,
including the Premises, not constructed by Tenant and those elements which
require maintenance and repair as the result of negligent or intentional failure
of Landlord to perform its maintenance and repair obligations pursuant to such
Section.
(d) Repair and maintenance costs pursuant to such Section to be included
in common area costs shall not include any costs classified under generally
accepted accounting principles as capital in nature.
(e) Any cost incurred by Landlord pursuant to Section 7.01 of the lease
form for which Landlord is actually reimbursed from insurance proceeds,
condemnation proceeds, a warranty, another tenant or any other source shall not
be included in common area costs to the extent of such reimbursement. Any such
cost incurred by Landlord for which Landlord is entitled to be reimbursed from
insurance proceeds, condemnation proceeds, another tenant or any other source
not including a warranty shall not be included in common area costs to the
extent of such entitlement, whether or not Landlord actually receives such
reimbursement. Any such cost incurred by Landlord for which Landlord is
entitled to be reimbursed from a warranty shall not be included in common area
costs only to the extent of the reimbursement actually received by Landlord from
the maker of such warranty.
Section 7.02 Tenant's Obligations
- ------------ --------------------
(a) The language "and for which this lease is terminated pursuant to
Article IX" appearing in Section 7.02(c) of the lease form shall be deleted.
(b) Except for items which affect other tenants of the Center, Tenant's
cure period after notice from Landlord shall be fifteen (15) days. In the event
that Tenant commences to cure any problem as to which Tenant has received notice
from Landlord within any applicable cure period, and for so long as Tenant
diligently pursues such cure, Landlord shall not be entitled to undertake such
work for the account of Tenant. For this purpose, "commences to cure" shall
mean initiation of action required to effect a cure, such as ordering of parts
or materials or solicitation of bids from contractors.
Section 7.03 Alterations and Additions
- ------------ -------------------------
(a) The language "Landlord shall direct Tenant to remove such items"
appearing in the first sentence of Section 7.03(b) of the lease form shall be
deleted.
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(b) Notwithstanding the provisions of Section 7.03(a) of the lease form,
Tenant may, without Landlord's prior written consent, make non-structural
alterations to the interior of the Premises which are consistent, as to style,
quality, materials and color, with the interiors, from time to time, of the
other stores operated in the continental United States by Tenant, its parents,
subsidiaries and affiliates under the same tradename then in use at the
Premises. All such alterations shall be high quality. Such alterations may
include new paint, wall and floor coverings, and replacement of fixtures,
furnishings and equipment. All such work shall be the sole responsibility of
Tenant, both as to performance and payment of costs, shall comply with all
applicable provisions of this lease and all governmental authorities having
jurisdiction of the Premises and shall be high quality and professionally done.
(c) Except as provided in subsection (b) above (covering work as to which
Landlord's approval is not required), Landlord's approval of any proposed
alterations or additions by Tenant shall not be unreasonably withheld or delayed
so long as the items for which approval is requested shall be consistent in
quality with the Tenant's Work originally approved by Landlord.
(d) Notwithstanding the provisions of Section 7.03(b) of the lease form:
(i) Tenant may, at Tenant's cost and within fifteen (15) days after
the expiration or any earlier termination of this lease, remove all non-
structural decorative items and trade fixtures from the Premises. Tenant shall
repair any damage caused by such removal and leave the Premises in a safe
condition, all at Tenant's cost.
(ii) At the expiration or earlier termination of this lease, Tenant
need not demolish (or restore) the Premises so long as Tenant's improvements to
the Premises are typical for a retail store. If Tenant proposes to construct
any non-typical features in the Premises, Landlord may, at time of submission of
plans for such features to Landlord for approval, notify Tenant in writing that
Tenant must remove such features within fifteen (15) days after the expiration
or any earlier termination of this lease. In the event that Tenant elects to
proceed with such non-typical features after notice from Landlord or proceeds
with such features without requesting approval by Landlord, Tenant shall, at
Tenant's cost (and upon notice from landlord pursuant to Section 7.03(b) of the
lease form as to non-typical features not submitted to Landlord for approval)
remove the same upon the expiration or earlier termination of this lease. Such
removal shall be in accordance with clause (i) above.
(e) Section 7.03(c) of the lease form shall be amended to read, in its
entirety, as follows:
"Tenant shall, at all times during the term of this lease, maintain
the Premises in a first class condition and shall, at Tenant's sole
cost and expense, perform such work in or to the Premises as and when
necessary to comply with the foregoing covenant, including but not
limited to refixturization, repainting and replacement of wall and
floor coverings as and when required. Any such work shall be subject
to all applicable provisions of this lease and Exhibits "C" and "E"
hereto, including the requirement of obtaining Landlord's prior
written consent as and when required, which approval is not required
with respect to work described in Addendum Section 7.03(b).
Section 7.05 Health Matters
- ------------ --------------
(a) The first sentence of Section 7.05 of the lease form, the first three
sentences of Section 7.05(a) of the lease form and the first two sentences of
Section 7.05(b) of the lease form shall all be deleted. The words "arising out
of Tenant's operations" shall be added after the word "authorities" in Section
7.05(e) of the lease form.
(b) Landlord agrees that it shall enforce the provisions of subsections
(c) and (d) of Section 7.05 of the lease form in a uniform and non-
discriminatory manner against the tenants of the Center other than department
stores.
Section 8.01 Liability Insurance-Premises
- ------------ ----------------------------
(a) The language "(which automobile coverage may be maintained by Tenant
under a separate insurance policy)" shall be added after the words "automobile
coverage in clause (b) of Section 8.01 of the lease form.
(b) The language "recommended by such Reviewing Broker" appearing in the
third sentence of the first paragraph following clause (b) in such Section shall
be amended to read "maintained by tenants or users." The words "tenants or
users of" appearing in the same sentence shall be deleted. The words "or
decrease" shall be added after the word "increase" in each place where the word
increase appears in the fourth sentence of such paragraph. The last sentence of
such paragraph shall be deleted.
(c) The language "other persons designated . . . in the Premises
"appearing in the first sentence of the last paragraph of Section 8.01 of the
lease form shall be amended to read "trust deed beneficiary, mortgagee, ground
lessor or
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managing agent designated by Landlord." The words "within thirty (30) days after
Tenant's receipt of notice from Landlord" shall be added after the word "added"
in the same sentence.
Section 8.02 Fire Insurance - Fixtures, Equipment and Tenant Improvements
- ------------ ------------------------------------------------------------
(a) The language "including but not limited . . . and malicious mischief"
appearing in clauses (i) and (ii) of Section 8.02 of the lease form shall be
deleted. The word "reasonably" shall be added before the word "required" in
clause (i) of such Section. The last sentence of such Section shall be deleted.
(b) Tenant shall not be required to carry plate glass coverage or the
insurance required by Section 8.02(c) of the lease form. In the event that the
tenant hereunder elects not to carry either or both of such coverages on the
basis of this subsection and there occurs a casualty for which insurance
proceeds would have been available but for such decision not to maintain such
insurance, such tenant shall use its own funds to replace the proceeds which
would have been available but for the decision not to carry such insurance.
(c) Upon the occurrence of any casualty which does not result in a
termination of this lease, the proceeds of the insurance maintained by Tenant
pursuant to Section 8.02(a) of the lease form shall be applied to cover the
obligations of Tenant to repair or restore pursuant to Article IX of the lease
form, up to the exhaustion of such proceeds. Any proceeds in excess of the
amount necessary to pay the costs of such repair or restoration shall be the
property of Tenant.
(d) Upon the occurrence of any casualty which results in the termination
of this lease, Landlord shall be entitled to all proceeds of the insurance
maintained by Landlord pursuant to Section 8.03 of the lease form and Tenant
shall be entitled to the balance of the proceeds from the insurance maintained
by Tenant pursuant to Section 8.02(a) of the lease form.
Section 8.03 Fire Insurance - Premises
- ------------ -------------------------
Notwithstanding anything to the contrary contained in this lease:
(a) Landlord's All Risk insurance pursuant to Section 8.03 of the lease
form shall be in an amount equal to the full replacement value of all
improvements comprising the Center, other than those improvements owned by Sears
and May and those improvements constructed by tenants of the Center. With
respect to the improvements owned by Sears, May and the other parties to the
reciprocal easement agreement covering the Center, Landlord shall indemnify and
hold harmless Tenant from and against any and all claims, costs, expenses
(including attorneys' fees and/or court costs) and liabilities arising from or
in respect of any damage to the property of the other parties to the reciprocal
easement agreement caused by any act or omission whatsoever, to the extent such
act or omission involves negligence, of Tenant or Tenant's agents, servants and
employees. Landlord's indemnification obligation pursuant to this subsection
shall be as extensive as Landlord's indemnification obligation pursuant to
Paragraph 10(a)(ii) of such reciprocal easement agreement (Exhibit "K" to this
lease). Landlord shall maintain with respect to such obligation a contractual
obligation endorsement to the public liability insurance policy maintained by
Landlord pursuant to this lease (and/or pursuant to the reciprocal easement
agreement), naming Tenant as an additional insured thereunder (it being
understood, however, that Landlord's liability under this Addendum Section
8.03(a) shall not be limited to the proceeds of insurance). Landlord agrees
that it shall, throughout the term of this lease, carry public liability
insurance with respect to the Center with an aggregate liability coverage of not
less than $50 million and that, throughout the term of this lease, Tenant shall
be named, directly or indirectly, as an additional insured on all public
liability insurance actually carried by Landlord with respect to the Center,
whether or not some of such insurance is required pursuant to the provisions of
this subsection (a). Tenant acknowledges that Landlord may maintain such public
liability insurance pursuant to a so-called blanket policy covering the Center
and other properties owned by Landlord and its affiliates, and that Landlord's
aggregate liability requirement pursuant to this subsection may be met by use of
a primary liability policy and one or more excess or umbrella policies, so long
as the obligations of Landlord pursuant to this subsection are in fact met.
With respect to the other tenants of the Center, Landlord shall use its best
efforts to obtain in all leases executed after the date hereof provisions which
are substantively identical to Section 8.05 of the lease form.
(b) Landlord's rental interruption insurance pursuant to Section 8.03 of
the lease form may be for any period of time determined, from time to time, by
Landlord. However, Landlord may include in common area costs only such premium
(or portion thereof) as covers the first twelve (12) months of any such
interruption.
(c) The cost of reserves and deductibles which are maintained by Landlord
which may be charged to common area costs for any calendar year shall not exceed
the amount of premiums saved for such year by maintaining such reserves and
deductibles.
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Section 8.04 Insurance Policies
- ------------ ------------------
(a) The language "and licensed or . . . State of California" appearing in
the first sentence of Section 8.04 of the lease form shall be deleted. The
language "to Landlord" appearing at the end of the fourth sentence of such
Section shall be amended to read "as provided in Addendum Section 8.02."
(b) Tenant shall be required to maintain each of the provisions specified
in the fourth (4th) sentence of Section 8.04 of the lease form only to the
extent that such required provision is available to Tenant at no additional cost
other than a nominal service charge.
(c) Prior to the Rent Commencement Date, Tenant may maintain course of
construction or similar insurance rather than the insurance required pursuant to
Section 8.02(a) of the lease form.
Section 8.05 Waiver of Subrogation
- ------------ ---------------------
(a) The following shall be added at the beginning of the first sentence of
Section 8.05 of the lease form:
"To the extent permitted by the insurance policies maintained by the
respective parties,"
(b) In the event that either party shall be unable to obtain from its
insurance carrier a waiver (or an agreement to recognize such party's waiver) of
the type described in Section 8.05 of the lease form, such party shall add the
other party as an additional or named insured, as applicable, on any such policy
carried by the first party. Such additional or named insured added pursuant to
this Section shall have no obligations pursuant to the policy maintained by the
other party.
Section 8.06 Indemnity
- ------------ ---------
(a) The word "reasonable" shall be added before the word "attorneys'" in
the first sentence of Section 8.06 of the lease form. The language "use or
occupation of . . . of this lease by" appearing in the same sentence shall be
amended to read "acts or omissions of." The last sentence of such Section shall
be amended to read as follows:
"Provided, however, that the foregoing shall not extend to any damage
or injury which was caused by the negligence of Landlord, its agents
or others for whom Landlord is responsible pursuant to Addendum
Section 8.06."
(b) In the event that each party hereto shall be determined by a court of
competent jurisdiction to be partially liable for any damage or injury of the
types specified in Section 8.06 of the lease form, each party shall be
responsible for that portion of the total liability assessed (including
attorneys' fees and costs) which bears the same relation to the total as such
party's percentage of liability bears to one hundred percent (100%).
(c) To the fullest extent permitted by law, Landlord shall indemnify,
defend and hold harmless Tenant from and against any liability or expense
(including but not limited to reasonable attorneys' fees and costs of defense)
for any damage or injury to persons or property in or about the Center which may
result from the acts or omissions of Landlord, or its agents, employees,
contractors, invitees or other persons claiming under Landlord (other than other
tenants). In addition, if any person not a party to this lease shall institute
any other type of action against Landlord in which Tenant, involuntarily and
without cause, shall be made a party defendant, Landlord shall indemnify, hold
Tenant harmless from and defend Tenant from all liability by reason thereof. It
is understood and agreed that payment shall not be a condition precedent to
enforcement of the foregoing indemnity. Landlord's defense obligation hereunder
shall include the obligation, upon demand, to defend Tenant against any claim or
action of the types herein specified by legal counsel reasonably satisfactory to
Tenant. Provided, however, that the foregoing shall not extend to any damage or
injury which was caused by the negligence or intentional action of Tenant, its
agents, employees or others for whom Tenant is responsible pursuant to Section
8.06 of the lease form.
Section 8.07 Exemption of Landlord
- ------------ ---------------------
(a) The following shall be added at the beginning of the first sentence of
Section 8.07 of the lease form:
"Unless caused by the acts or omissions of Landlord, its agents or
employees, invitees or other persons claiming under Landlord (other
than tenants),"
(b) The last sentence of such Section shall be amended to read, in its
entirety, as follows:
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"Provided, however, that the foregoing shall not apply to any damage
or injury which was caused by the negligence of Landlord, its agents
or employees."
Section 8.08 Landlord's Security
- ------------ -------------------
(a) The language "Under no circumstances shall the Indemnified Parties"
appearing in the fourth sentence of Section 8.08 of the lease form shall be
amended to read "Provided that Landlord complies with Addendum Section 8.08,
Landlord shall not."
(b) Notwithstanding anything to the contrary contained in Section 8.08 of
the lease form, Landlord shall at all times during the term of this lease
maintain such security with respect to the Center as shall be consistent with
good shopping center management practices, from time to time, for similar
centers in the geographical area which includes the Center.
Sections 9.02 and 9.03 Major Damage to Center
- ---------------------- ----------------------
Notwithstanding anything to the contrary contained in Sections 9.02 and
9.03 of the lease form:
(a) Landlord shall not be entitled to terminate this lease pursuant to
either such Section unless Landlord concurrently terminates the leases of all
tenants located in the Sak's, Macy's Men's, Macy's, Nordstrom wing of the Center
(as defined in Addendum Section 6.01).
(b) In the event of a casualty to the Premises and/or the Center which
does not result in the termination of this lease:
(i) Landlord shall repair or restore those portions of the Center and
the Premises originally constructed by Landlord. For this purpose, the Premises
shall be rebuilt by Landlord to a shell condition. A shell condition shall mean
concrete slab, exposed stud demising walls on the Premises side, exposed
underside of slab above ceiling line and all main utility lines serving the
Center and points of connection for Tenant's individual lines (but not
individual lines serving the Premises). Tenant shall repair or restore the
balance of the Premises.
(ii) Abatement of rent shall be pursuant to Section 9.05(a) of the
lease form (including total, if applicable) and shall be from the date of the
occurrence of the casualty to and until the earlier of (A) the date on which
Tenant completes its work in the Premises and reopens the entire Premises for
business or (B) the 90th day after Landlord completes its work of repair or
restoration to the extent reasonably necessary for Tenant to commence its work
of repair or restoration in the Premises and to continue the same to completion
without interruption. Landlord shall, prior to the expiration of such abatement
period, complete its repair and restoration work with respect to the Premises
and the Center as necessary for Tenant to reopen and conduct its business as
permitted pursuant to this lease.
(c) In the event that (i) the Center is damaged so as to render the
Premises unusable with respect to more than fifty percent (50%) of the sales
area of the Premises or (ii) the damage to the Center causes the Premises to be
partially or totally inaccessible by customers and (iii) Landlord is unable to
complete its repair or restoration so as to eliminate the conditions described
in clauses (i) and (ii) above within one hundred eighty (180) days after the
occurrence of such damage, then Tenant shall have the right to cancel and
terminate this lease upon the conditions set forth below. Within thirty (30)
days after the occurrence of a casualty which results in either condition
specified in clauses (i) and (ii), Landlord shall provide to Tenant a written
estimate of the time required for Landlord to complete its repair or restoration
work so as to eliminate such condition. In the event that Landlord's estimate
indicates that more than one hundred eighty (180) days from the date of the
casualty will be required to complete such repair or restoration, or in the
event that Landlord's estimate is less than one hundred eighty (180) days from
the date of the casualty but such work is not completed within such one hundred
eighty (180) day period, Tenant may terminate this lease by written notice to
Landlord given within fifteen (15) days after the receipt of Landlord's estimate
or at any time after the expiration of such one hundred eighty (180) day period
from the date of the casualty and prior to completion of such work, whichever is
applicable.
Section 9.04 Damage Near End of Term
- ------------ -----------------------
The provisions of Section 9.04 of the lease form shall be mutual so that
either party may terminate this lease in the event of a casualty described in
such Section. Any such notice of termination shall be given within the time
period specified in such Section. If neither party elects to terminate, repair
or restoration shall be in accordance with Sections 9.01, 9.02 or 9.03 of the
lease form.
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Section 9.05 Abatement of Rent; Remedies for Non-Performance
- ------------ -----------------------------------------------
(a) The language "reasonably practicable" appearing in the first sentence
of Section 9.05(a) of the lease form shall be amended to read "that Tenant
determines it is reasonable to do so." The following shall be added at the end
of such sentence:
"; otherwise tenant can close the Premises until completion of repairs
and restoration."
The language "but only to the extent . . . pursuant to Section 8.03" appearing
at the end of the second sentence of such Section shall be deleted. The fourth
sentence of such Section shall be deleted in its entirety.
(b) Any claims by Tenant against Landlord for any damage suffered by
Tenant by reason of any damage, destruction, repair or restoration shall be
subject to the provisions of Section 8.05 of the lease form and Addendum Section
8.05.
Section 10.01 Assignment and Subletting
- ------------- -------------------------
(a) The language "but only to the extent permitted by law" shall be added
before the word "terminate" in the fourth sentence of Section 10.01(a) of the
lease form. The term "twenty-five percent (25%)" appearing in the last sentence
of the first paragraph of such Section shall be amended to read "fifty percent
(50%)." Moreover, the language "or new issuance" appearing in such last
sentence of the first paragraph of such Section 10.01(a) shall be deleted. The
following shall be added at the end of such sentence ", except to the extent
permitted by Addendum Section 10.01."
(b) The language "One Thousand Five Hundred Dollars ($1,500)" appearing in
the second paragraph of Section 10.01(a) of the lease form shall be amended to
read "Seven Hundred Fifty Dollars ($750.00)" each place where such language
appears in such paragraph. The language "Two Thousand Five Hundred Dollars
($2,500)" appearing in such paragraph shall be amended to read "One Thousand
Seven Hundred Fifty Dollars ($1,750)."
(c) The language "an outline of" shall be added at the beginning of clause
(iii) of Section 10.01(b) of the lease form. The language "including a copy . .
. such terms and provisions" appearing in such clause shall be deleted. The
language "if tenant is requesting a release from liability under this lease"
shall be added at the beginning of clause (iv) of such Section. The language
"(which may be a balance sheet prepared for internal use only)" shall be added
after the word "consent" in such clause (iv). The term "two year" appearing in
such clause (iv) shall be amended to read "one year."
(d) The third sentence of Section 10.01(d) shall be deleted in its
entirety. The last sentence of such Section shall be amended to read, in its
entirety, as follows:
"Approval of any assignment of Tenant's interest shall, whether or not
expressly so stated, be conditioned upon such assignee assuming in
writing all obligations of Tenant hereunder accruing subsequent to the
date of the assignment by a written instrument in form and substance
reasonably satisfactory to Landlord."
(e) The term "sixty (60) days" appearing in Section 10.01(g) of the lease
form shall be amended to read "one hundred twenty (120) days."
(f) Notwithstanding anything to the contrary contained in Section 10.01 of
the lease form, the provisions of Section 10.01 of the lease form shall not
apply to, Landlord's consent shall not be required in connection with and
Landlord shall not share in any rent or other consideration in connection with:
(i) An assignment of Tenant's interest in this lease or a
subletting of the Premises to any subsidiary, parent or affiliate of Tenant (as
the terms subsidiary, parent and affiliate are defined in Section 6.03 of the
lease form) or to any entity which is controlled by, under common control with
or which controls Tenant;
(ii) A sale or transfer of all or substantially all of the
outstanding capital stock of Tenant, a sale or transfer of all or substantially
all of the assets of Tenant or a sale or transfer of seventy percent (70%) or
more of the stores then operated under the same tradename then in use at the
Premises; and
(iii) An assignment of Tenant's interest in this lease as a part of a
merger or consolidation to which Tenant is a party.
Provided, however, that in connection with any such transaction:
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(1) Except as permitted by this lease, there shall be no change in
Tenant's tradename in use at the Premises and no substantial change in the
business conducted at the Premises without, in each instance, the prior written
consent of Landlord.
(2) Except in the case of a merger or consolidation as to which
Tenant is not the surviving party and in which the assignee assumes the
obligations of Tenant hereunder as a matter of law, the assignee, transferee or
surviving corporation shall execute and deliver to Landlord a written assumption
of the obligations of Tenant pursuant to this lease accruing from and after the
effective date of such transaction in form and substance reasonably satisfactory
to Landlord. Such delivery shall be made concurrently with the notice provided
for in clause (5) below.
(3) No such assignment or subletting shall relieve Tenant from any of
its obligations hereunder.
(4) Any subletting shall be subject to all of the terms and
provisions of this lease and shall, to the extent permitted by law, be
terminable by Landlord upon the expiration or any earlier termination of this
lease, including a termination resulting from the agreement of Landlord and
Tenant.
(5) Within twenty (20) days after the effective date of the
transaction, Tenant shall deliver to Landlord a written notice of the assignment
or subletting identifying the assignee or subtenant, the effective date of the
transaction, the facts which bring such transaction within the scope of this
subsection and any change in the address for notices and billings to the tenant
pursuant to this lease. Upon request by Landlord, Tenant shall also deliver to
Landlord a copy of the sublease or assignment documents.
(g) Notwithstanding the provisions of Section 10.01(e) of the lease form:
(i) The allocation provided for in such subsection shall include an
allocation to all assets, both tangible and intangible, which may be reasonably
deemed to have a value to the assignee or subtenant, such as trademarks,
tradenames, customer lists, logos and contract rights. There shall not,
however, be any allocation to "goodwill."
(ii) In determining the amount, if any, to be allocated for the use
of the Premises or the leasehold estate, there shall be deducted form the gross
amount received or to be received by Tenant each of the following:
(A) The aggregate amount allocated to all other assets
pursuant to Section 10.01(e) of the lease form and clause (i) above;
(B) All actual out-of-pocket costs incurred by Tenant in
connection with such transaction. Such costs shall include brokerage fees and
commissions, fees and costs paid by Tenant to professionals employed by Tenant
in connection with such transaction (such as attorneys and accountants),
attorneys' fees and costs reimbursed by Tenant to Landlord, escrow fees and
costs, costs of remodeling and renovation of the Premises for such assignee or
subtenant and costs of advertising or soliciting for such assignee or subtenant
and other costs incurred in effecting the transfer of physical possession of the
Premises; and
(C) The then unamortized cost of improvements to the Premises
constructed and paid for by Tenant. For this purpose, amortization shall be on
a straight line basis over the useful lives of such improvements, but not longer
than the term of this lease.
(iii) The amount to be paid by Tenant to Landlord pursuant to Section
10.01(e) of the lease form shall be equal to fifty percent (50%) of the net
excess rent or consideration (as the terms rent and consideration are defined in
such subsection) after (A) the allocation provided for in clause (i) above and
-----
such subsection and (B) the deductions provided for in clause (ii) above.
(iv) The provisions of Section 10.01(e) of the lease form shall not
apply to any transaction described in subsection (f) above.
(v) In the event that rent or consideration is paid on an
installment or deferred payment basis to Tenant in connection with any such
assignment or subletting, Landlord shall receive its portion thereof on the same
basis and as and when received by Tenant. For example, if consideration for an
assignment is in the form of a promissory note payable in four (4) equal
quarterly installments, then Landlord shall receive its proportionate share of
each such quarterly installment as and when received by Tenant.
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Section 11.02 Partial Taking
- ------------- --------------
The language "spend more on . . . award or to" appearing in the last
sentence of Section 11.02 of the lease form shall be deleted. The following
shall be added at the end of such Section:
"Upon any reduction in the Minimum Rent, the Percentage Rent
breakpoints shall be adjusted as provided in Section 3.03(a) of the
lease form."
Section 11.03 Taking of Center
- ------------- ----------------
(a) Notwithstanding the provisions of Section 11.03 of the lease form,
Landlord shall not be entitled to terminate this lease pursuant to such Section
unless Landlord concurrently terminates the leases of all tenants located in the
Sak's, Macy's Men's, Macy's and Nordstrom wing of the Center (as defined in
Addendum Section 6.01).
(b) In addition to Landlord's right to terminate pursuant to Section 11.03
of the lease form, Tenant shall also have the right to terminate in the event of
a taking of a major portion of the Center. For the purposes of this provision,
taking of a major portion of the Center shall mean a taking of (a) two or more
of the Macy's, Sak's, Macy's Men's and Nordstrom stores or (b) other stores
located in the Macy's, Sak's, Macy's Men's and Nordstrom wing of the Center (as
defined in Addendum Section 6.01) with an aggregate Floor Area of 70,000 square
feet or more. Tenant shall also have the right to terminate this lease in the
event of a taking which interferes, in Tenant's reasonable business judgment, in
a material way with the conduct of business by Tenant in the Premises as
permitted by this lease. Such a taking shall include a taking which (i)
materially adversely affects customer access to or the view of the Premises from
the Enclosed Mall or which (ii) includes a taking of more than 3,500 square feet
of Floor Area of the Premises. Such right to terminate shall be exercised, if
at all, by written notice from Tenant to Landlord given within thirty (30) days
after Tenant's receipt of written notice from Landlord as to the portion of the
Center to be taken. If Tenant is entitled to terminate this lease pursuant to
this Section and timely and properly does so, this lease shall terminate on the
date upon which the condemning authority requires possession, and the provisions
of Section 16.28 of the lease form shall apply with respect to such termination.
Section 11.04 Awards
- ------------- ------
The last sentence of Section 11.04 of the lease form shall be amended to
read, in its entirety, as follows:
"Nothing contained herein, however, shall be deemed to preclude Tenant
from obtaining, or to give Landlord any interest in, any award to
Tenant for loss of or damage to Tenant's trade fixtures and removable
personal property, for damages for cessation or interruption or
relocation of Tenant's business, or for unamortized costs of fixtures
and leasehold improvements paid for by Tenant and not reimbursed to
Tenant by Landlord."
Section 11.05 Sale Under Threat of Condemnation
- ------------- ---------------------------------
The words "under threat of condemnation" shall be added after the words
"and/or convey" in the second sentence of Section 11.05 of the lease form.
Section 12.02 Furnishing of Services
- ------------- ----------------------
The language "the lesser of Landlord's cost of providing such services or"
shall be added after the word "exceed" in the first sentence of Section 12.03 of
the lease form. The words "without notice" in the last sentence of such Section
shall be amended to read "on the same terms as a regulated purveyor of such
service could discontinue."
Section 12.03 Interruption of Service
- ------------- -----------------------
Notwithstanding the provisions of Section 12.03 of the lease form, in the
event that any failure or interruption of the type described in such Section
continues for three (3) or more consecutive days, then all rent payable by
Tenant pursuant to this lease shall be abated for the period of such
interruption in proportion to the degree of interference with Tenant's
operations in the Premises, including totally, if applicable. For this purpose,
"degree of interference" shall be determined taking into account the actual
interference with or prevention of Tenant's business in the Premises, and Tenant
may, in its reasonable judgment, close the Premises entirely during such failure
or interruption if, in Tenant's reasonable judgment, Tenant is unable to
reasonably operate during such period. No such abatement shall, however, defeat
or diminish Landlord's right to recover upon any rental interruption insurance
maintained by Landlord.
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<PAGE>
[MAP OF CENTRAL ORANGE COUNTY AREA LOCATING THE FOLLOWING SHOPPING CENTERS]
1. SOUTH COAST PLAZA
2. FASHION ISLAND
3. HUNTINGTON CENTER
4. WESTMINSTER MALL
5. MAIN PLACE
6. THE CITY
7. BUENA PARK MALL
8. ANAHEIM PLAZA
9. ORANGE MALL
10. BREA MALL
11. LAGUNA HILLS MALL
12. MISSION VIEJO MALL
SOUTH COAST PLAZA
EXHIBIT B-2
-----------------
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<PAGE>
[MAP OF CENTRAL ORANGE COUNTY AREA LOCATING THE FOLLOWING SHOPPING CENTERS]
1. SOUTH COAST PLAZA
2. FASHION ISLAND
3. HUNTINGTON CENTER
4. WESTMINSTER MALL
5. MAIN PLACE
6. THE CITY
7. LAGUNA HILLS MALL
8. MISSION VIEJO MALL
SOUTH COAST PLAZA
EXHIBIT B-2
-----------------
CENTRAL
ORANGE COUNTY
AREA
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EXHIBIT "B-2(B)"
<PAGE>
South Coast Plaza
Management Offices
3333 Bristol Street
South Coast Plaza, CA 92626
Attn: General Manager
Re: Lease Dated June 5, 1998
Gentlemen:
This letter is directed to you in connection with the referenced lease
(the "Lease") and Section 6.03 thereof. The undersigned hereby represents and
warrants to you that the undersigned is, at the date hereof, in compliance with
the provisions of such Section of the Lease. In other words, neither the
undersigned nor any parent, affiliate or subsidiary of the undersigned (as those
terms are defined in such Section 6.03), directly or indirectly operates,
manages or has any interest in any competing store with that operated under the
Lease and located within the areas described in such Section of the Lease.
Very truly yours,
St. John Knits, Inc.
By
------------------------------
Title
----------------------------
Dated:
---------------------------
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Exhibit B-3
<PAGE>
SOUTH COAST PLAZA
GENERAL
DESCRIPTION OF LANDLORD'S WORK*
AND OF
TENANT'S WORK
- -------------------
* NOTWITHSTANDING ANY OF THE PROVISIONS OF THIS OR ANY OTHER EXHIBIT, THERE
SHALL BE NO LANDLORD'S WORK WITH RESPECT TO THE PREMISES COVERED BY THE LEASE TO
WHICH THIS EXHIBIT IS ATTACHED UNLESS SET FORTH SPECIFICALLY IN AN ADDENDUM OR
AMENDMENT TO THIS LEASE, AND ANY SUCH LANDLORD'S WORK SHALL BE LIMITED ONLY TO
THOSE ITEMS SPECIFICALLY SO SET FORTH. SUCH LANDLORD'S WORK, IF ANY, SHALL BE
PERFORMED IN ACCORDANCE WITH THE STANDARDS SET FORTH HEREIN.
Exhibit C
<PAGE>
Section 13.01 Defaults
- ------------- --------
(a) The second sentence of Section 13.01(a) of the lease form shall have
no application with respect to this lease.
(b) The words "in either case" shall be added after the word "Landlord"
the first time such word appears in Section 13.01(b) of the lease form. The term
"three (3) days" appearing in such Section shall be amended to read "five (5)
business days after Tenant's receipt of."
(c) The term "ten (10)" appearing in the first sentence of Section
13.01(c) of the lease form shall be amended to read "twenty (20)" in each place
where such word appears. The third sentence of such Section shall be deleted in
its entirety.
(d) Clauses (i), (ii), (iii) and (v) of Section 13.01 (d) shall be deleted
in their respective entireties. The term "thirty (30)" appearing in clause (iv)
of such Section shall be amended to read "ninety (90)."
(e) The term "abandonment" as used in Section 13.01(a) of the lease form
shall include removal by Tenant of its merchandise, fixtures and equipment from
the Premises accompanied by either (i) a closure thereof with a duration of five
(5) consecutive days and removal of Tenant's signs or other objective evidence
that Tenant does not intend to reopen for business in the Premises or (ii)
delivery of Premises keys to Landlord or its agents. Abandonment shall not
include any permitted closure of the Premises (irrespective of the duration
thereof) for remodeling, rebuilding or as otherwise expressly permitted by this
lease. Nothing herein shall prevent Landlord from establishing in any court of
competent jurisdiction an abandonment of the Premises by any other facts
accepted by such court.
(f) Notwithstanding the provisions of Section 13.01(d) of the lease form,
the occurrence of an event described in clause (iv) thereof shall not constitute
a default by Tenant pursuant to this lease unless such seizure continues for the
ninety (90) day period therein described and for five (5) days after Tenant's
receipt of a notice of default with respect thereto given by Landlord after the
expiration of such ninety (90) day period.
Section 13.02 Remedies
- ------------- --------
(a) The following shall be added after the word "lease" in the first
sentence of Section 13.02(a) of the lease form:
"(for all purposes of this lease, Tenant shall not be in default, and
a default shall not be deemed to have occurred unless Tenant has
failed to perform an obligation of Tenant hereunder, Landlord shall
have given to Tenant a notice thereof and such failure shall continue
beyond any applicable grace period)"
(b) The language "amount of such loss . . . be reasonably avoided"
appearing in clause (A) of Section 13.02(a)(i) of the lease form shall be
amended to read "fair market rental value of the Premises for the balance of the
term."
(c) Sections 13.02(c) and the first sentence of Section 13.02(f) of the
lease form shall each be deleted in their respective entireties. The following
shall be added at the end of Section 13.02(e) of the lease form:
", but only after a default (i.e., failure to perform, Landlord's
notice to perform and Tenant's failure to cure within the applicable
grace period)."
Section 13.03 Default by Landlord
- ------------- -------------------
Notwithstanding the provisions of Section 13.03 of the lease form, Tenant
shall not be required to provide the thirty (30) days notice specified in such
Section but may instead make repairs or otherwise cure for Landlord at
Landlord's expense under the following circumstances:
(a) The problem or condition necessitating such repair or cure shall be an
emergency or shall materially interfere with Tenant's ability to operate in the
Premises as permitted by this lease. As used herein, an emergency shall be a
condition or state of facts which constitutes an imminent danger of damage to
property or physical harm to persons.
(b) Tenant shall first notify Landlord of the emergency or problem and
Landlord shall fail to cure the problem within a reasonable period of time after
such notice. The notice required by this subsection may be oral, and what
constitutes a reasonable period of time shall be determined with reference to
the nature of the danger posed by such emergency or the interference caused by
such problem.
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(c) The repair work conducted by Tenant at Landlord's expense shall be
limited to that reasonably necessary to cure the problem or condition as to
which Tenant has notified Landlord, and may not include any change to the
structure of the Center or any main electrical, water, plumbing or gas line or
the main heating, ventilating and air conditioning system for the Center, all as
reasonably determined by Tenant in its good faith judgment.
(d) Promptly upon completion of such work, Tenant shall pay the cost
thereof and supply to Landlord a paid receipt or other documentary evidence
reasonably satisfactory to Landlord as to the nature and cost of such work.
Landlord shall reimburse Tenant for the cost of such work within twenty (20)
days after receipt of such evidence as to the nature and cost of the work so
performed by Tenant.
(e) In no event may Tenant exercise its right under this Section if
landlord commences to cure the problem or condition within a reasonable period
of time after notice by Tenant and thereafter diligently pursues the same to
completion.
Section 13.04 Expense of Litigation
- ------------- ---------------------
(a) The second sentence of Section 13.04 of the lease form shall have no
application with respect to this lease.
(b) For the purposes of Section 13.04 of the lease form, the term
"prevailing party" shall mean (i) the party determined to be the prevailing
party by the judge or arbitrator before whom a matter is determined, if a matter
is determined before a judge or arbitrator or (ii) if a matter is resolved
without a judge or arbitrator, the party whose claim is closest to the actual
resolution of a matter. By way of example of the operation of clause (ii), a
resolution which results in payment by Tenant of all amounts claimed by Landlord
or performance by Tenant of all obligations claimed to be due by Tenant would
render Landlord as the prevailing party, while a resolution which results in
payment by Tenant of less than one-half (1/2) of the amount claimed by Landlord
or performance of only a portion of the obligations claimed to be due by Tenant
would render Tenant as the prevailing party. Nothing herein shall prevent the
parties, in any resolution of a claim or claims between them, from reaching a
different agreement as to a prevailing party or that there is no prevailing
party. In addition, if any dispute or claim is resolved without the filing of
an action (or an arbitration proceeding under Addendum Section 4.03 or Section
13.09 of the lease form) (such as payment after a notice to pay or quit), there
shall be no prevailing party and no entitlement to recovery of attorneys' fees
unless the parties specifically agree to the contrary.
Section 13.05 Holding Over
- ------------- ------------
(a) The language "If Landlord so . . . year term; otherwise" appearing in
the second sentence of Section 13.05 of the lease form shall be deleted.
(b) Notwithstanding the provisions of Section 13.05 of the lease form,
Minimum Rent for the first 120 days of any holding over shall be in an amount
equal to one hundred fifty percent (150%) of the monthly Minimum Rent in effect
at the end of the term. Thereafter for the duration of the holding over Minimum
Rent shall be in an amount equal to three hundred percent (300%) of the monthly
Minimum Rent in effect at the end of the term. In addition, clauses (b) and (c)
of such Section shall apply only to a holding over with a duration of forty-five
(45) days or more.
Section 13.06 Landlord's Rights
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The first sentence of Section 13.06 of the lease form shall have no
application with respect to this lease. The words "this Article" appearing in
the second sentence of such Section shall be amended to read "Article XIII."
the term "ten (10)" appearing in the fourth sentence of such Section shall be
amended to read "thirty (30)." The last sentence of such Section shall be
deleted in its entirety.
Section 13.07 Waiver of Landlord's Lien
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Landlord hereby waives all lien rights with respect to all personal
property, equipment, machinery and fixtures of Tenant placed by Tenant in the
Premises. Landlord shall, within twenty (20) days after receipt of written
request therefor from tenant, execute and deliver to Tenant or Tenant's lender a
waiver of any lien of Landlord upon Tenant's personal property in the Premises
and a consent to a lien on such personal property by any such lender. Provided,
however, that in connection with any such waiver and consent:
(a) The lien granted to any such lender may extend to Tenant's leasehold
hereunder but shall not include the possessory interest pursuant to this lease
without the prior written consent of Landlord, which may be granted or withheld
in Landlord's sole discretion.
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(b) Landlord shall not be obligated to assist any lender or its agents in
gaining entry to the Premises or in removing any personal property therefrom.
Landlord shall, however, provide to one (1) such lender whose name and address
are furnished to Landlord in writing by Tenant a copy of each notice thereafter
given by Landlord to Tenant pursuant to Section 13.01 of the lease form. Such
notice shall be furnished to such lender concurrently with service thereof upon
Tenant. In addition, Landlord shall provide to such lender, upon any
termination (but not expiration) of this lease, written notice as to the
termination of this lease and an opportunity for fifteen (15) days following
such notice to remove from the Premises all property of Tenant in which such
lender claims a lien. Such removal right shall not extend to any item which is
the property of Landlord pursuant to this lease.
(c) Landlord shall not be obligated to permit any lender or its agents to
conduct any auction or similar sale in the Premises, or to permit Tenant or any
lender or its agents to store any such personal property in the Premises more
than fifteen (15) days after the expiration or any earlier termination of this
lease.
(d) Upon any removal of Tenant's personal property, fixtures and equipment
from the Premises, Tenant's lender or such lender's agents shall, concurrently
with such removal and at the sole cost and expense of such lender, repair any
damage to the Premises caused by such removal and otherwise take such action as
necessary to eliminate any unsafe condition (such as capping of any exposed
utility lines) in the Premises caused by such removal.
(e) The form and substance of such instrument shall be reasonably
satisfactory to Landlord.
Section 14.01 Common Area Definition
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(a) Notwithstanding the provisions of Section 14.01 of the lease form, no
such changes by Landlord shall materially adversely affect customer access to or
visibility of the Premises store-front from the Enclosed Mall. The foregoing
provision shall not apply to any improvements located in the Enclosed Mall as of
the date of this lease, any low (i.e., not to exceed three (3) feet in height)
items such as benches, planters and trash receptacles or any temporary items
used in connection with any work of repair or maintenance of the Enclosed Mall,
such as scaffolding. Any such scaffolding located in front of the Premises
storefront shall (i) be located in such manner as shall not prevent customer
access to the Premises from the Enclosed Mall and (ii) be located in front of
the Premises only for the minimum period reasonably necessary to accomplish the
work for which such scaffolding is erected.
(b) Landlord shall not convert the Center from an enclosed mall center to
an open air mall center.
(c) Notwithstanding the provisions of Section 14.01 of the lease form,
Landlord shall not during the term of this lease make any material change to the
Center which shall cause (i) the Center to cease to be a regional enclosed mall
retail center or (ii) substantially and adversely alter the quality of the
Center. For the purpose of this subsection, examples of the types of changes
which would violate the provisions of this subsection would be conversion of a
substantial portion of the Floor Area of the Center or parking for the Center to
non-retail use such as offices, miniature golf, bowling alleys, amusement parks,
manufacturing or hotel usage, conversion of a substantial portion of the Center
to a discount or outlet type operation, any substantial addition to the Center
which consists of one or more of the foregoing types of uses and any conversion
of a substantial portion of the Center (or substantial addition to the Center)
which is devoted solely to restaurant and/or fast food uses. For this purpose,
"substantial" shall mean (iii) thirty-five percent (35%) or more of the Floor
Area of the Center as of the date of this lease or (iv) twenty-five percent
(25%) of the Floor Area of the Sak's, Macy's, Macy's Men's and Nordstrom wing of
the Center, as defined in Addendum Section 6.01. For the purposes of this
subsection, examples of changes which would not be a violation of the provisions
of this subsection would be replacement of any department store with another
department store of comparable quality, the addition to the Center of not more
than two (2) additional department stores of comparable quality to those
currently at the Center, the addition to the Center of additional Enclosed Mall
stores, the addition to the Center of any parking (including structure parking)
necessary to serve any additions to or changes to the Center not prohibited by
the provisions of this subsection and replacement, from time to time, of
Enclosed Mall tenants at the Center with other tenants with uses of comparable
or better quality.
Section 14.02 Use
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All rules and regulations established by Landlord pursuant to Section 14.02
of the lease form shall be enforced in a uniform and non-discriminatory manner
against all tenants at the Center other than major department stores.
Section 14.03 Control by Landlord
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(a) The language "such manner as . . . to be appropriate" appearing in the
first sentence of Section 14.03(a) of the lease form shall be amended to read "a
first class manner consistent with the current image of the Center."
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(b) The language "Subject to the provisions of subsection (a) above,"
shall be added at the beginning of the first sentence of Section 14.03(b) of the
lease form. The language "in the opinion of Landlord" appearing in the fourth
sentence of such Section shall be deleted. The words "use reasonable effort to"
shall be added before the word "restrain" in the same sentence.
(c) The language "assume responsibility for compliance by" appearing in
the fourth sentence of Section 14.03(c) of the lease form shall be amended to
read "notify" and the word "with" in such sentence shall be amended to read
"of." The language "charge Tenant, as . . . those so designated" appearing in
the fifth sentence of such Section and the language "Tenant acknowledges that
Landlord may" appearing in the sixth sentence of such Section shall be deleted.
(d) The words "elects or" appearing in the first sentence of Section
14.03(d) of the lease form shall be deleted. The words "and voluntary"
appearing in the first sentence of clause (i) of such Section shall be deleted.
The words "or voluntary association" appearing in clause (iii) of such Section
shall be deleted.
(e) Notwithstanding the provisions of Section 14.03(b) of the lease form:
(i) Landlord shall notify Tenant in writing with respect to any
vehicle of Tenant or Tenant's employees improperly parked at the Center (other
than vehicles parked in no-parking areas). In the event that such vehicle is
again improperly marked, no notice shall be given and Landlord may simply tow or
cause such vehicle to be towed.
(ii) With respect to any vehicle parked in an area marked as a no-
parking area, no notice shall be required. Landlord may tow or cause such
vehicle to be towed.
(iii) With respect to any vehicles towed pursuant to this Section,
the owner of the vehicle shall be responsible to pay the towing and storage
charges incurred as a condition to reclaiming the vehicle.
(iv) For so long as Landlord operates a valet parking service at the
Center, Landlord shall maintain a valet park station at either of (A) the
entrance to the Enclosed Mall located between the Macy's Men's Store and Sak's
or (B) in the westerly portion of the north parking structure or at the entrance
to the Enclosed Mall westerly of such north parking structure.
(v) The third sentence of such Section shall be enforced in a
uniform and non-discriminatory manner against the tenants of the Center.
(f) The provisions of Section 14.03(c) of the lease form shall be enforced
in a uniform and non-discriminatory manner against the tenants of the Center.
(g) The words "required" and "mandatory" appearing in Section 14.03(d) of
the lease form and clause (i) thereof shall include any method or alternative
selected by Landlord to reach a governmentally required objective with respect
to parking or traffic management.
Section 14.04 Common Area Costs
- ------------- -----------------
(a) The language "Subject to the limitations set forth in Addendum Section
14.04," shall be added at the beginning of the first sentence of Section 14.04
of the lease form. The words "not separately metered to Tenants" appearing in
clause (a) of Section 14.04 of the lease form shall be amended to read "for
utilities not supplied to leasable premises." The parenthetical phrase
appearing in clause (h) of such Section shall be deleted.
(b) Notwithstanding the provisions of Section 14.04 of the lease form, the
following shall not be included in common area costs charged to Tenant:
(i) Costs incurred by Landlord which are, under generally accepted
accounting principles, required to be capitalized rather than expensed, other
than as specifically permitted pursuant to the provisions of clause (iii) and
subsections (f) and (g) below;
(ii) Depreciation of improvements to the Center; and
(iii) Amortization of the cost of improvements calculated to reduce
common area costs in excess of the costs so saved as the result of such
improvements in any calendar year.
(c) The inclusion of deductibles and reserves in common area costs shall
be subject to the limitations of Addendum Section 8.03.
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(d) Personal property taxes and vehicle taxes and fees included in common
area costs shall be limited to those with respect to personal property and
vehicles used in the operation and maintenance of the Center.
(e) The costs included in common area costs pursuant to clause (u) of
Section 14.04 of the lease form shall be limited to the compensation and
benefits of personnel employed in such offices, utilities furnished to such
offices, furniture, furnishings and supplies for such offices and the
maintenance of such offices.
(f) Capital costs incurred to comply with governmental requirements
applicable to the Center shall be limited to governmental requirements which
become applicable to the Center after June 25, 1992, and such costs shall be
amortized over the useful lives of the improvements constructed or purchased
with such capital expenditures, with such useful lives to be as reasonably
determined by Landlord in accordance with generally accepted accounting
principles. Only the amortization applicable to any calendar year shall be
included in common area costs for such calendar year.
(g) Notwithstanding the last paragraph of Section 14.04 of the lease form,
common area costs charged to Tenant shall not include any capital costs incurred
with respect to the original construction of the Center or with respect to any
addition to the Center, such as an additional department store, an additional
parking area or structure, additional enclosed mall area or a pedestrian bridge
across Bear Street. The costs of maintaining and operating any common area
additions to the Center shall, however, be included in common area costs,
subject to the other limitations on common area costs chargeable to Tenant
contained in this lease. Moreover, as to other capital expenditures included in
common area costs charged to Tenant, Landlord shall amortize such costs in
accordance with generally accepted accounting principles, and only the
amortization applicable to any calendar year shall be included in common area
costs charged to Tenant for such calendar year.
(h) Any cost incurred by Landlord pursuant to Section 14.04 of the lease
form for which Landlord is actually reimbursed from insurance proceeds,
condemnation proceeds, a warranty, another tenant or any other source shall not
be included in common area costs to the extent of such reimbursement. Any such
cost incurred by Landlord for which Landlord is entitled to be reimbursed from
insurance proceeds, condemnation proceeds, another tenant or any other source
not including a warranty, shall not be included in common area costs to the
extent of such entitlement, whether or not Landlord actually receives such
reimbursement. Any such cost incurred by Landlord for which Landlord is
entitled to be reimbursed from a warranty shall not be included in common area
costs only to the extent of the reimbursement actually received by Landlord from
the maker of such warranty.
(i) Notwithstanding anything to the contrary contained in this lease, in
no event shall the Other Center be treated as a part of the Center for purposes
of determining Tenant's common area costs or other additional rent payable by
Tenant pursuant to this lease. However, if Landlord constructs a pedestrian or
other bridge across Bear Street between the Center and the Other Center,
allocation by Landlord of the cost of operating and maintaining such bridge
between common area costs of the Center and common area costs of the Other
Center in a manner deemed reasonable by Landlord shall not violate the
prohibition contained in the first sentence of this subsection.
Section 14.05 Proportionate Payment
- ------------- ---------------------
(a) The first sentence of Section 14.05(a) of the lease form shall read,
in its entirety, as follows:
"Tenant's proportionate share of such common area costs shall be that
portion thereof which the Floor Area of the Premises bears to the
greater of (i) the Floor Area of premises from time to time leased and
occupied by Tenants of the Center or (ii) ninety-five percent (95%) of
the aggregate Floor Area of the Center, in each case excluding tenant
owned buildings and certain major tenants who pay on a basis other
than a proportionate share."
(b) Any overpayment by Tenant of common area costs to be credited or
refunded to Tenant shall bear interest at the rate determined pursuant to
Section 16.06 from July 1 of the calendar year for which collected until the
date such overpayment is credited or refunded to Tenant.
(c) The word "installments" appearing in the seventh sentence of Section
14.05(b) of the lease form shall be amended to read "rent."
Section 15.01 Prohibited Activities
- ------------- ---------------------
(a) The word "side" shall be added after the word "exterior" the first
time such word appears in clause (a) of Section 15.01 of the lease form. The
word "four" appearing in clause (b) of such Section shall be amended to read
"two" the first time such word appears in such clause. The language "are
objectionable to Landlord or which" appearing in
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clause (d) of such Section shall be deleted as shall the language "the effect of
which . . . outside the Premises" appearing in the same clause.
(b) Nothing contained in Section 15.01(b) of the lease form shall preclude
the use of posters as a part of Tenant's store window or store decorations,
shall preclude the use of professionally done price signs in Tenant's store
windows or prohibit the use of professionally done signs generally so long as
not located within two (2) feet of Premises doors and windows. For so long as
Tenant or a parent, subsidiary or affiliate of Tenant is the tenant pursuant to
this lease, the provisions of such Section shall apply only to items to be
affixed to the storefront of the premises.
(c) Landlord covenants and agrees to enforce the provisions of clauses
(c), (d) and (e) of Section 15.01 on a uniform and non-discriminatory basis
against tenants of the Center other than department stores.
(d) With respect to any request for Landlord's approval pursuant to
clauses (a), (b) or (d) of Section 15.01 of the lease form, Landlord's approval
shall not be unreasonably withheld taking into account the high quality of the
Center and the intended high quality of Tenant's store in the Premises.
(e) The term "professional quality" in Section 15.01(f) of the lease form
shall mean a quality compatible with the high quality of merchandise to be sold
in the Premises, even if not actually prepared by a professional sign maker.
Section 15.02 Maintenance
- ------------- -----------
For the purposes of Section 15.02 of the lease form, Landlord's right of
notice and self-help shall be limited to repair or replacement of broken items
and clean-up and removal of dust, dirt, debris and liquids.
Section 15.05 and 15.07 Tenant's Advertising
- ----------------------- --------------------
Notwithstanding the provisions of Sections 15.05 and 15.07 of the lease
form, for so long as Tenant or any assignee permitted without Landlord's consent
pursuant to Addendum Section 10.01 is the tenant pursuant to this lease:
(a) If and for so long as:
(i) Tenant continues in effect a national or corporate advertising
program; and
(ii) In advertisements for Tenant's continental United States stores
operated under the same tradename then in use at the Premises which list or
identify a number of locations with such tradename within the continental United
States, Tenant includes in such listing or identification the Premises with
equal prominence (i.e., tone, position, color, typeface, type style, etc.) to
the other locations listed therein,
the cost of such advertisements shall be credited against one percent (1%) of
Tenant's annual advertising requirement pursuant to Section 15.05 of the lease
form. Tenant shall conduct local advertising with an aggregate cost equal to
the lesser of (A) one percent (1%) of Tenant's gross sales on an annual basis or
(B) $50,000 on an annual basis (prorated for any partial lease year).
(b) Section 15.05(c) of the lease form shall have no application with
respect to this lease.
(c) Tenant shall be required to purchase an advertisement in only one of
Landlord's catalogs published each year pursuant to Section 15.07 of the lease
form. Tenant shall select the particular catalog in which to advertise each
year and need not select the same catalog in each year. The cost of such
catalog shall be applied against Tenant's annual local advertising requirement.
Section 15.06 Acceptance of Center Gift and Certificates
- ------------- ------------------------------------------
There shall be no charge or fee to Tenant and no discount on payments to
Tenant in connection with its acceptance of Landlord's gift certificates
pursuant to Section 15.06 of the lease form.
Section 15.08 Signs on Exterior Fascia
- ------------- ------------------------
Landlord covenants and agrees to enforce the policy set forth in Section
15.08 of the lease form in a uniform and non-discriminatory manner. Tenant
acknowledges that such policy does not prohibit (a) signage on the exterior
fascia of major department stores, (b) signage located on the exterior fascia of
certain restaurants located at the Center, (c) exterior signage for certain
tenants having entrances which open directly on the parking areas of the Center
and (d) exterior
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signage at entrances to the Enclosed Mall for a few existing tenants. Landlord
agrees that such Section does not apply to signage on the Premises storefront
onto the Enclosed Mall.
Section 16.01 Offset Statement
- ------------- ----------------
(a) Section 16.01(b) and the second sentence of Section 16.01(c) of the
lease form shall have no application with respect to this lease.
(b) Landlord shall at any time and from time to time upon not less than
twenty (20) days' prior written notice from Tenant execute, acknowledge and
deliver to Tenant a statement in writing (i) certifying that this lease is
unmodified and in full force and effect (or, if unmodified, stating the nature
of such modification and certifying that this lease, as so modified, is in full
force and effect) and the dates to which the Minimum Rent and additional rent
are paid in advance, if any, (ii) acknowledging that there are not, to
Landlord's knowledge, any uncured defaults on the part of Tenant hereunder, or
specifying such defaults, if any are claimed, and (iii) acknowledging (if true)
the accuracy of such other facts regarding Landlord or this lease as are
included in such statement by Tenant. Any such statement may be relied upon by
any prospective purchaser or encumbrancer of Tenant's interest in this lease or
any prospective sublessee of all or any portion of the Premises.
(c) Landlord shall be liable for all loss, cost or expense resulting from
the failure of any assignment, subletting or financing caused by any material
misstatement contained in any estoppel certificate supplied by Landlord.
Section 16.02 Landlord's Right of Access
- ------------- --------------------------
(a) The language "Access by Landlord . . . the Premises and" appearing in
the third sentence of Section 16.02 of the lease form shall be deleted. The
following shall be added at the end of such third sentence: "conducted in
compliance with Addendum Section 16.02." the word "No" appearing in the last
sentence of such Section 16.02 shall be amended to read "The mere." The word
"not" shall be added after the word "shall" in such sentence.
(b) In connection with any entry by Landlord pursuant to Section 16.02 of
the lease form which can be made without interfering with the operation of
Tenant's business in the Premises, Landlord shall make such entry in such manner
as shall not interfere with Tenant's business in the Premises. In connection
with any other entry by Landlord, including an entry in an emergency, Landlord
shall make such entry in such manner as shall interfere as little as possible
with the operation of Tenant's business in the Premises.
Section 16.05 Deposit and Financial Statements
- ------------- --------------------------------
Landlord and Tenant acknowledge and agree that Landlord currently holds a
security deposit under the Current Lease in the amount of $19,993.34. In
consideration of Tenant's execution of this lease, Landlord shall, within ten
(10) days after Tenant's execution and delivery of this lease, return such
security deposit to Tenant.
Section 16.06 Late Payments and Deliveries
- ------------- ----------------------------
The first sentence of Section 16.06(a) of the lease form shall be amended
to read, in its entirety, as follows:
"Any amount due from either party to the other party hereunder which
is not paid when due shall bear interest at the lesser of the Bank of
America (Los Angeles) reference rate plus three (3) points or the
maximum rate which the party to whom payment is due is then permitted
to charge by the applicable usury law, accruing from the later of
demand therefor or the date due until the same is fully paid.
Section 16.08 Time for Performance
- ------------- --------------------
The deletion of Section 16.08 of the lease form shall not be deemed or
construed to relieve either party of any of its obligations pursuant to this
lease or to extend the time for performance by either party of any obligation
pursuant to this lease beyond the time periods provided in this lease. Such
deletion shall be given no meaning at all by any court or other tribunal called
upon to interpret or apply the provisions of this lease.
Section 16.11 Notices
- ------------- -------
(a) The second sentence of Section 16.11 of the lease form shall be
deleted in its entirety. The language "to the Premises (for Tenant) or"
appearing in the third sentence of such section shall be deleted. The language
"as reflected on the delivery receipt" shall be added after the word "service"
in such third sentence of such Section.
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(b) Landlord and Tenant acknowledge that, at the request of Tenant,
Landlord has agreed that it will not serve notices upon Tenant at the Premises.
In consideration for such agreement by Landlord, Tenant hereby waives the
requirement of personal service of notices pursuant to Code of Civil Procedure
Section 1161 et seq. and of any other statute or rule of law which requires
-- ---
personal service of a notice upon Tenant as a condition to exercise by Landlord
of any remedy against Tenant with respect to Tenant's obligations pursuant to
this lease. Nothing herein shall be deemed or construed to relieve Landlord of
the obligation to serve any notice upon Tenant; rather, the parties instead
agree that any such notice shall be served upon Tenant at its address for notice
by any means permitted pursuant to Section 16.11 of the lease form. Any such
notice served upon Tenant at such address in any manner specified in Section
16.11 of the lease form shall be deemed effective upon the date determined
pursuant to such Section, notwithstanding any statute or rule of law which
specifies a later effective date for such service. Moreover, any statute or
rule of law which extends the time for response or action by Tenant as the
result of service of a notice other than by personal service shall not apply to
notices served pursuant to this subsection (b).
(c) The provisions of subsection (b) above shall also extend to the
service of any complaint and/or summons for breach of this lease or for recovery
of possession of the Premises on account of such breach by Tenant. Similarly,
service of such complaint and/or summons upon Tenant or Landlord at their
respective addresses specified in the applicable Fundamental Lease Provision in
any manner specified in Section 16.11 of the lease form shall be effective upon
the date determined pursuant to such Section, notwithstanding any statute or
rule of law which specifies a later effective date for such service. Finally,
any statute or rule of law which extends the time for a response by Tenant as
the result of service of such complaint and/or summons other than by personal
service shall not apply to a complaint and/or summons served pursuant to
subsection (b) above.
Section 16.12 Brokers
- ------------- -------
The language "claiming under or through Tenant" appearing in the second
sentence of Section 16.12 of the lease form shall be amended to read "with whom
Tenant has dealt directly." The last sentence of such Section shall be deleted
in its entirety.
Section 16.13 Waivers
- ------------- -------
The first two sentences of Section 16.13 of the lease form shall be mutual
and shall extend to actions, notices and options of each of Landlord and Tenant.
The words "by Landlord" appearing in the third sentence of such Section shall be
deleted.
Section 16.14 Recording
- ------------- ---------
The first sentence of Section 16.14 of the lease form shall be amended to
read, in its entirety, as follows:
"Neither party shall record this lease without the prior written
consent of the other."
Section 16.15 Advertising and Promotional Fund
- ------------- --------------------------------
(a) In lieu of the initial Fund contribution provided for in Section
16.15(c) of the lease form, Tenant shall hold a promotional event (the "Event")
in connection with the opening of the Premises. Such Event shall:
(i) Have a cost as determined by Tenant;
(ii) Be of a quality consistent with Tenant's store in the Premises
but be as selected by Tenant (such as a cocktail party, dinner, fashion show,
ocean cruise, golf tournament, etc.); and
(iii) Be held during the period from thirty (30) days prior to thirty
(30) days subsequent to the opening of the Premises for business.
If Tenant fails to hold an Event of the quality and within the time period
herein specified, Tenant shall make an additional contribution to the Fund in
the amount of $52,000. Such additional contribution shall be paid, as
additional rent, within sixty (60) days after the opening of the Premises for
business.
(b) Landlord covenants and agrees that Landlord does not and will not
derive any profit from promotional fund contributions.
(c) Notwithstanding the provisions of Section 16.15(b) of the lease form,
Tenant's annual contribution pursuant to the Fund for any year shall not exceed
one hundred eight percent (108%) of Tenant's annual contribution to
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the Fund for the immediately prior year. However, if such increases are made
less frequently than annually, the maximum increase shall be eight percent (8%)
for each year since the last increase.
Section 16.16 Liens
- ------------- -----
The language "or bonded as permitted by the applicable provision of the
California Civil Code" shall be added after the word "record" in the second
sentence of Section 16.16 of the lease form.
Section 16.17 Subordination
- ------------- -------------
Clause (b) of Section 16.17 of the lease form shall have no application
with respect to this lease.
Section 16.18 Tenant's Authority
- ------------- ------------------
The first sentence of Section 16.18 of the lease form shall be amended to
read, in its entirety, as follows:
"Each individual executing this lease on behalf of a party represents
and warrants that the execution and delivery of this lease on behalf
of such party is duly authorized, that he or she is authorized to
execute and deliver this lease on behalf of such party and that this
lease is binding upon such party in accordance with its terms."
Section 16.19 Safety and Health
- ------------- -----------------
Notwithstanding anything to the contrary set forth in this lease, Landlord
and Tenant acknowledge that, as a part of Tenant's Work, Tenant proposes to
install an elevator to connect the two levels of the Premises (the "Elevator").
The elevator will be located in a portion of the Premises which is located over
the existing Tiffany store at the Center ("Tiffany"). Notwithstanding anything
to the contrary set forth herein, Landlord and Tenant agree that:
(a) The ability of Tenant to install and operate such elevator on
economically feasible terms is a condition to the continued effectiveness of
this lease.
(b) As promptly as practicable, and in any event within fifteen (15) days
after Tenant's execution and delivery of this lease, Tenant shall deliver to
Landlord a conceptual plan showing the location of the Elevator in relation to
the Tiffany store and any required alterations to the Tiffany store to
accommodate the Elevator. Landlord shall promptly present such conceptual plan
to Tiffany with a request for approval by Tiffany of the location of the
Elevator and any required alterations to the Tiffany store. Thereafter.
Landlord and Tenant shall reasonably cooperate as necessary to obtain such
approvals by Tiffany, including supplying by Tenant of any information
reasonably requested by Tiffany.
(c) If (i) Tenant is unable to obtain any required governmental approval
for the installation of such elevator, (ii) the cost of such installation shall
exceed $110,000, or (iii) the operator of Tiffany shall refuse to permit any
alteration of Tiffany required to accommodate the installation of the elevator
or shall require any financial accommodation from Tenant, then, in any such
event, Tenant shall have the option to terminate this lease. For the purposes
of clause (iii) of this subsection, Tenant shall be responsible, both as to
performance and payment of the costs thereof, to make any alterations to the
Tiffany store required to accommodate the Elevator. The cost of such
alterations shall be counted toward the cost of the Elevator but shall not be
deemed a "financial accommodation" to Tiffany.
(d) Tenant's option to terminate this lease pursuant to subsection (b)
shall be exercised, if at all, by written notice to Landlord given between (A)
the thirtieth (30th) day following delivery to Landlord of the conceptual plan
provided for in subsection (b) above and (B) the sixtieth (60th) day following
delivery of such conceptual plan if (x) Tenant is unable by the date of Tenant's
notice to obtain any required governmental approval for the Elevator, (y) Tenant
reasonably determines that the cost of the Elevator will exceed $110,000 and/or
(z) Landlord and Tenant are unable to obtain the required approval of Tiffany.
If such option is not exercised in such manner and within such time period, such
option shall lapse and thereafter not be exercisable by Tenant. If Tenant is
entitled to exercise such option and timely and properly exercises such option,
then clauses (i) through (iv) of Addendum Section 2.02(f) shall apply and Tenant
shall promptly surrender possession of the Premises to Landlord, if possession
shall previously have been tendered to Tenant. Pending any termination of this
lease pursuant to this Section, each party shall diligently perform its
respective obligations pursuant to this lease.
LANDLORD'S TENANT'S
INITIALS INITIALS
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<PAGE>
Section 16.21 Non-Disclosure of Lease Terms
- ------------- -----------------------------
The word "attorneys" shall be added before the word "independent" in the
fourth sentence of Section 16.21 of the lease form. The words ", franchisee,
licensee or concessionaire" shall be added after the word "assignee" in the same
sentence of such Section. The following shall be added at the end of such
Section:
"Landlord and Tenant may each also disclose the terms hereof to their
respective parents, subsidiaries, affiliates and partners and to those
officers, directors and employees of such persons and entities
involved in administering this lease, performing the obligations of a
party hereunder or otherwise having a reasonable need to know such
terms."
Section 16.23 Force Majeure
- ------------- -------------
Notwithstanding the provisions of Section 16.23 of the lease form, such
Section shall apply with respect to delays of the types specified therein in the
performance of Tenant's Work, which delays shall operate to extend the time
period set forth in Addendum Section 2.02(c). For the purposes of this Section
and Section 16.23 of the lease form, delays which shall extend the time period
set forth in Addendum Section 2.02(c) shall be limited to any actual (i)
industry-wide delay or failure to perform by either party affecting all similar
works of construction in the Costa Mesa, California area or in the Center, due
to strikes, lockouts or other labor or industrial disturbance (whether or not on
the part of the employees of either party hereto), civil disturbance, future
order claiming jurisdiction, act of the public enemy, war, riot, sabotage,
blockade, embargo, inability to secure customary materials, supplies or labor
through ordinary sources by reason of regulation or order of any government or
regulatory body, (ii) delays due to the failure of Tenant to secure building
permits and approvals (including the failure to obtain a temporary certificate
of occupancy) within the same time periods that normally prevailed for obtaining
such permits and approvals in June 1998, and because of delays in completing its
space plan, construction documents or tenant improvements due to changes in
building and related codes, or the interpretation thereof, but if, and only if,
the failure to secure said permits and approvals, and such changes in codes or
interpretations thereof are (x) industry-wide, affecting all similar works of
construction in Costa Mesa, California, or Center-wide, or (y) are unique to the
Center and not caused by Tenant's unique design of the Premises, (iii) delays
due to lightning, earthquake, fire, storm, hurricane, tornado, flood, washout,
explosion which affect the Center and or the Premises, and (iv) or any industry-
wide or Center-wide causes beyond the reasonable control of Tenant, or any of
its contractors or other representatives. The inability of Tenant to obtain,
install or construct products, materials or equipment to complete its plans or
to obtain necessary building permits or approvals which are attributable to a
unique design of Tenant and not typical of a high fashion retail tenant for
similar space shall not constitute a force majeure delay and shall not delay the
Rent Commencement Date. Nothing herein shall be deemed to limit the effect of
subsections (a) or (c) of Section 16.23 of the lease form.
Section 16.26 No Option
- ------------- ---------
(a) The first sentence of Section 16.26 of the lease form shall have no
application with respect to this lease.
(b) The items to be delivered by Tenant to Landlord pursuant to Section
16.26 of the lease form prior to Landlord's delivery of the Premises to Tenant
shall be limited to the following:
(i) Six (6) copies of this lease, executed and initialed by Tenant
and without change from the form previously agreed upon by Landlord and Tenant.
(ii) Tenant's insurance certificate(s) required pursuant to Article
VIII of the lease form.
(iii) Documentary evidence meeting the requirements of Addendum
Section 16.18.
(iv) The financial statements required pursuant to Section 16.05(b)
of the lease form.
(v) The clean-up deposit required pursuant to Section 17.04(e) of
the lease form.
Section 16.28 Termination
- ------------- -----------
Notwithstanding anything to the contrary contained in Section 16.28 of the
lease form:
(a) Upon the expiration or any earlier termination of this lease, any
overpayments by Tenant pursuant to this lease shall be credited against any
amounts due from Tenant to Landlord hereunder, and any balance shall be refunded
to Tenant, without interest, within thirty (30) days after such expiration or
termination.
LANDLORD'S TENANT'S
INITIALS INITIALS
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H.T.S.
77
<PAGE>
(b) Landlord's right to remove and discard items of Tenant remaining in
the Premises upon surrender of the Premises to Landlord shall be subject to the
limitations upon Tenant's obligation to remove items from the Premises set forth
in Addendum Section 7.02.
Section 16.30 Accord and Satisfaction
- ------------- -----------------------
(a) The language "Tenant or" appearing in Section 16.30(a) of the lease
form shall be deleted. The word "alteration" appearing in such Section shall
also be deleted. The language "or notation written . . . by the maker thereof"
shall also be deleted.
(b) The language "nor shall any endorsement . . . accord and satisfaction"
appearing in the first sentence of Section 16.30(b) of the lease form shall be
deleted.
Section 16.31 Financing
- ------------- ---------
(a) Tenant's obligation pursuant to the first sentence of Section 16.31 of
the lease form shall also be subject to the condition that any such amendment
shall not decrease Tenant's rights pursuant to this lease in other than
immaterial ways.
(b) The provisions of the second sentence of such Section shall not
preclude Tenant from challenging any amendment which has an effect prohibited by
the first sentence of such Section, and shall apply only after the resolution of
any such challenge.
Section 17.01 Landlord's Work
- ------------- ---------------
(a) The language "Except as otherwise provided in this lease," shall be
added at the beginning of each sentence of Section 17.01 of the lease form.
(b) Except as specifically provided in this lease, Landlord shall have no
obligation, either as to performance or payment of the costs thereof, to remodel
or renovate the Premises for tenant's use thereof. All such matters shall be
the sole responsibility of Tenant pursuant to Article XVII of the lease form and
Addendum Section 17.02.
Section 17.02-17.04 Tenant's Work
- ------------------- -------------
In consideration for Landlord's execution of this Lease, Tenant agrees to
completely remodel, renovate and redecorate the Premises, including new wall and
floor coverings, a new ceiling, new fixtures and erection of a new Premises
storefront ("Tenant's Work"). Tenant's Work shall be in accordance with the
following:
(a) Tenant's Work shall be designed and constructed in accordance with all
applicable requirements of all governmental authorities having jurisdiction and
all applicable requirements of this lease and Exhibits "C," "E" and "F" hereto.
Without limiting the generality of the foregoing, Tenant's obligation to comply
with applicable governmental requirements shall include but not be limited to
(1) construction and equipping of any bathroom(s) required in the Premises and
(ii) compliance of Tenant's Work with the Americans With Disabilities Act,
Chapter 31A of the California Code of Regulations, the latest version of the
Uniform Building Code adopted by the City of Costa Mesa and all regulations and
other governmental pronouncements issued thereunder. In no event shall Tenant
commence construction of Tenant's Work until and unless working drawings with
respect to such work prepared by Tenant are submitted to and approved by
Landlord. Moreover, Tenant's Work shall include the construction of a
"flagship" quality store in the Premises with materials and design comparable in
quality to Tenant's stores in New York City, New York and the Forum Shops in Las
Vegas, Nevada.
(b) Tenant shall be solely responsible, for both performance and payment
of costs, for the design and construction of Tenant's Work.
(c) Design and construction of Tenant's Work shall be in accordance with
the following schedule:
(i) The PDM shall be scheduled to be held on or before June 15,
1998, and all submissions of Tenant pursuant to Section 17.02 of the lease form
shall be made at or prior to the PDM. The PDM may be held by conference
telephone call after the last of the submissions required by such Section.
(ii) All design work with respect to Tenant's Work shall be completed
and all required approvals with respect thereto shall be obtained on or before
the Lease Commencement Date.
LANDLORD'S TENANT'S
INITIALS INITIALS
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J.E.S. DD
H.T.S.
78
<PAGE>
(iii) Tenant's Work shall be commenced promptly following the Lease
Commencement Date and after Tenant obtains the last required approvals thereof,
shall be diligently pursued and shall be completed as promptly as practicable
following commencement thereof and in any event by the Rent Commencement Date.
(d) By its signature hereto, Landlord agrees that Landlord will not
require Tenant to replace the existing ventilating and air conditioning system
in the Premises as a part of Tenant's Work. Tenant shall, however, as a part of
Tenant's Work, make all changes, additions or replacements to such system
required for:
(i) Such system to comply with all applicable governmental
requirements; and
(ii) Accommodation of such system to changes in the configuration
(including the interior configuration) of the Premises effected by Tenant.
(e) So long as Tenant retains, as Tenant's general contractor for Tenant's
Work, Fisher Construction or another general contractor from Landlord's approved
list, Tenant shall not be required to comply with part F of Section I of Exhibit
"E" to this lease.
Section 18.01 Supplemental Storage Areas
- ------------- --------------------------
In the event that, as of the termination of the Current Lease, Tenant holds
and occupies any storage area(s) at the Center pursuant to supplemental storage
area addenda to the Current Lease, (i) such supplemental storage area addenda
shall terminate as of the date that Tenant opens for business in the Premises
and (ii) as a part of Tenant's relocation from and surrender of the Current
Premises pursuant to Addendum Section 2.04, Tenant shall vacate and surrender to
Tenant any storage area(s) occupied by Tenant pursuant to such addenda. Such
vacation and surrender shall be in accordance with Section 16.28 of the Current
Lease, except that such vacation and surrender shall be accomplished by the date
that Tenant opens for business in the Premises.
Section 19.01 Approval by Landlord's Lender
- ------------- -----------------------------
Landlord has advised Tenant that, due to the size of the Premises, this
lease is subject to the approval of Landlord's lender with respect to the Center
(the "Lender"). In connection with such approval, Landlord and Tenant agree as
follows:
(a) Promptly following the last execution of this lease, Landlord shall
submit the same to the Lender for written approval. Landlord shall use
reasonable efforts to obtain the approval of Lender to this lease, and for that
purpose, Section 16.31 of the lease form shall apply.
(b) Promptly upon receipt of written approval of this lease by Lender,
Landlord shall furnish a copy of such approval to Tenant.
(c) If the Lender declines to approve this lease, after utilization of
Section 16.31 of the lease form if possible, Landlord shall promptly so notify
Tenant in writing.
(d) In the event of such notice pursuant to subsection (c) above, the
following shall pertain:
(i) This lease shall terminate upon the date of Tenant's receipt of
Landlord's notice.
(ii) Each party shall bear its own costs and fees incurred in the
preparation and negotiation of this lease and in performing its respective
obligations hereunder through the date of termination. Notwithstanding the
foregoing, Landlord shall reimburse Tenant for up to $25,000 of out-of-pocket
costs incurred by Tenant with respect to design and construction of the
Premises. Such reimbursement shall be made, by delivery of Landlord's check,
within ten (10) days after the last to occur of (i) termination of this lease
pursuant to this Section or (ii) delivery to Landlord of documentary evidence
reasonably satisfactory to Landlord as to the out-of-pocket costs incurred by
Tenant with respect to such design and construction.
(iii) Neither party shall have any further rights or obligations
pursuant to this lease.
(iv) The Current Lease shall remain in full force and effect in
accordance with its terms.
Pending any termination of this lease pursuant to this Section, each party
shall diligently pursue its respective obligations pursuant to this lease.
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
79
<PAGE>
Section 20.01 Interpretation
- ------------- --------------
This Addendum is attached to and forms a part of a certain lease of even
date between Landlord and Tenant. In the event of any inconsistency between the
provisions of this Addendum and any other provision of the lease, the provisions
of this Addendum shall control.
<TABLE>
<S> <C>
ST. JOHN KNITS, INC., a California corporation SOUTH COAST PLAZA, a California partnership
By: /s/ DAN DEMILLE By C.J. Segerstrom & Sons, a California general
------------------------------------------ partnership, General Partner
Title: Dan DeMille, its V.P.
-------------------------------------- By /s/ HENRY T. SEGERSTROM
-----------------------------------------
Manager
By:
------------------------------------------ By /s/ JEANETTE E. SEGERSTROM
-----------------------------------------
Manager
Title:
--------------------------------------
"Tenant" "Landlord"
Dated: June 9 , 1998 Dated: June 10 , 1998
-------------------------------- ------------------------------------
</TABLE>
80
<PAGE>
[MAP OF SECOND LEVEL LEASING PLAN]
EXHIBIT A
SPACE #2533 & #3011
MAY 26, 1998
LANDLORD'S TENANT'S
INITIALS INITIALS
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J.E.S. DD
H.T.S.
<PAGE>
EXHIBIT B
TENANT LEASE PLAN
[DIAGRAM OF SECOND LEVEL] [DIAGRAM OF THIRD LEVEL]
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S DD
H.T.S.
<PAGE>
[MAP OF SOUTH COAST PLAZA]
THE SIZE AND LOCATION OF THE BUILDINGS AND RELATED STRUCTURES ARE APPROXIMATE.
THE CONFIGURATION OF THE DEVELOPMENT, THE DESIGN AND LOCATION OF BUILDINGS AND
RELATED STRUCTURES, PARKING, VEHICULAR ACCESS, STREETS, ROADS, ENTRANCES, COMMON
AREAS AND ALL OTHER IMPROVEMENTS, AND THE IDENTITY AND LOCATION OF OTHER
TENANTS, TO THE EXTENT DEPICTED, ARE SUBJECT TO CHANGE FOR ANY REASON DEEMED
SUFFICIENT BY LANDLORD WITHOUT NOTICE TO TENANT.
LANDLORD'S TENANT'S
INITIALS INITIALS
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J.E.S. DD
H.T.S.
EXHIBIT B-1
<PAGE>
I. LANDLORD'S WORK. The following work of construction has been performed
exclusively by Landlord at its sole expense:
A. Common Areas
1. Parking Areas, Roads and Sidewalks. Paved, drained, landscaped
and lighted parking areas, roads, and sidewalks, together with directional signs
and markers.
2. Utilities.
(a) Sanitary Sewer. Connections for Tenant's lines have been
provided to existing sewer mains at points determined by Landlord. Any
additional connections required by Tenant will be provided by Tenant at its
cost.
(b) Domestic Water. Mains have been furnished to approved points
of connection as determined by Landlord. Landlord has provided meter locations
(but not meters) for Tenant. Meters shall be installed by Tenant in locations
and manners directed by Landlord and in compliance with Mesa Consolidated Water
District specifications.
(c) Natural Gas. Mains have been furnished to approved points of
connection as determined by Landlord. Landlord has provided meter locations
(but not meters) for Tenant. Meters shall be installed by Tenant in locations
and manners directed by Landlord.
(d) Electrical Service. 120/208 volt, three phase, four wire
service. Service has been sized to allow approximately 4.5 watts per square foot
of Floor Area for lighting and power loads. Such wattage is an approximation
only, and actual power input will be determined based upon Tenant's requirements
in the Premises, but not to exceed 4.5 watts per square foot of Floor Area for
lighting and power.
(e) Telephone Service. A telephone terminal backboard with cable
capacity adequate for Tenant's use has been located in a common area as
determined by Landlord.
(f) Fire Sprinkler System. See Exhibit "E."
3. Interior Common Areas and Common Facilities.
(a) Toilet Facilities. Landlord has provided public toilet
facilities in common areas including furnishings, installation of toilet
fixtures, painting, ventilation, soap, tissue and paper towel dispensers (or
wall mounted electric hand dryer units) all in accordance with applicable
building codes.
(b) Corridors, Stairways, Escalators and Elevators. Have been
installed by Landlord in locations selected by Landlord and in accordance with
applicable building codes.
(c) Truck Receiving Facilities. Have been provided as determined
by Landlord.
(d) Trash Removal Facilities. Have been provided as determined
by Landlord.
(e) Enclosed Malls and Courts. Heated, ventilated, air
conditioned and lighted with architecture and landscaping treatment as
determined by Landlord. Ceiling is suspended acoustic or gypsum board ceiling
system. Floor finishes in the Enclosed Mall are concrete slab with decorative
finishes as selected by Landlord. Interior wall areas, other than storefronts,
are gypsum board with taped and floated joints, painted. A neutral strip above
the storefront line has been installed as selected by Landlord. Fire sprinklers
have been provided throughout the Enclosed Mall as required by applicable codes
in addition to a dry standpipe system with outlets in the Enclosed Mall as
required by the fire department. Low intensity lighting has been provided
throughout the Enclosed Mall with electrical outlets provided for seasonal
decorations, maintenance, and special promotions. A central public address and
music system with speakers in the ceiling has been provided throughout the
Enclosed Mall.
(f) Central Cold Air Distribution System. See Exhibit "E."
4. Exterior Malls and Courts. Have been lighted, paved and drained
as determined by Landlord.
B. Specialty Shops Building
1. Building Shell
(a) Frame-Lower and Upper Mall Levels. See Exhibit "E."
(b) Structural Clear Heights. For maximum clear heights measured
from the finished floor slab to the lowest structural member, see the design
drawings pertaining to the Premises, available from Landlord's architectural
department.
(c) Roof. Roof is either insulated and built-up composition
roofing or as specified by Landlord.
(d) Exterior Building Walls. Exterior walls enclose the building
shell, except at tenant storefront areas, and are of materials having a finished
appearance and decorative quality as selected by Landlord.
2. Interior Finishes
(a) Walls. Walls or partitions separating the Premises from
common areas are either finished on both sides or exposed metal stud
construction with drywall finish on the common area side only. Exposed metal
studs only will be installed on the Premises side for new demising walls.
(b) Doors. Where the Premises adjoin a common area corridor,
Landlord has provided one (1) doorway (but not a door) to connect the Premises
to such common area corridor. If required by applicable building codes, Landlord
will provide a door for emergency exits to corridors or stairs.
(c) Mall Access. Access to the Enclosed Mall has been provided
via common area service corridors and stairways located as determined by
Landlord and in accordance with applicable building codes.
Exhibit C-2
<PAGE>
3. Neutral Strips. A vertical neutral strip has been located at the
storefront line between stores; the center of said strip coincides with the
lease line between such stores.
II. TENANT'S WORK
A. Store Interior Finish Work. All work required to complete and place
the Premises in a finished condition for opening for business over and above
that work performed by Landlord pursuant to Part I above shall be done by
Tenant, except as provided herein or in Exhibit "E" to the contrary, and shall
be at Tenant's sole expense. All such work shall be in accordance with the
working drawings prepared by Tenant's architect in conformity with this Exhibit
"C" and Exhibit "E" and approved by Landlord as provided in Article XVII of the
lease. Said store interior finish work shall include, but shall not be limited
to, the following:
1. Ventilating and Air Conditioning. All air conditioning equipment
required within the Premises including insulated and non-insulated duct work,
zone terminal units, temperature controls, air diffusers, air grilles and other
air distribution specialties connected to Landlord's central variable volume
single duct conditioned air distribution system. Controls shall be electronic
controls as specified by Landlord for power and control to both the zone
terminal control system and the building fire alarm systems (see Exhibit "E").
If Tenant's ceiling covers over the existing or new zone system junction boxes,
then hinged, swing open panels allowing free local access to these devices by
Landlord's maintenance staff must be provided by Tenant. THE DESIGN FOR
TENANT'S HVAC WORK SHALL BE PREPARED BY AN AIR CONDITIONING ENGINEER APPROVED BY
LANDLORD. SUCH WORK SHALL BE AT TENANT'S COST AND SHALL BE UNDER A DIRECT
CONTRACT BETWEEN TENANT AND SUCH ENGINEER. THE WORK PURSUANT TO SUCH CONTRACT
SHALL INCLUDE PREPARATION OF ALL DRAWINGS AND ALL LOAD CALCULATIONS REQUIRED BY
EXHIBIT "E." Tenant's work pursuant to this paragraph 1 and pursuant to
paragraphs 9, 10, 11, 12 and 18, as applicable, shall comply with Landlord's
"Standard Mechanical Installation Practices" issued by Landlord's Engineering
Department (the "Standards"). Tenant or its general contractor shall be
responsible to obtain the latest version of the Standards from Landlord's
Engineering Department prior to commencing design of Tenant's work. In the
event of any conflict between the Standards, on the one hand, and this Exhibit
"C" or Exhibit "E," on the other hand, Landlord's determination shall control.
2. Electrical Systems, Equipment and Lighting Fixtures with Lamping.
Electrical power and distribution from Landlord's point of connection in
electrical room to and within the Premises including electrical subpanels,
conduits to Premises, outlet boxes, switch outlets, service fuses, copper
wiring, disconnect switch, meter and lighting fixtures with lamping. This work
includes Tenant's cost responsibility for all additional electrical service
capacity required if Tenant's combined lighting and power loads exceed 4.5 watts
per square foot. In no event shall Tenant's lighting and power loads exceed the
limitations in applicable governmental codes. (See Landlord's Work, Section I
above).
3. Plumbing. All plumbing distribution and fixtures shall be
provided by Tenant, including connection to utility and sewer mains provided by
Landlord for both employee and public restroom facilities within Premises.
Existing plumbing distribution and fixtures, if any, may be retained subject to
design requirements and applicable code and Landlord requirements. Any removal
and replacement of the existing structural slab shall be accomplished in a
manner prescribed by Landlord prior to commencement of such removal.
4. Ceiling. All finished ceilings.
5. Floor Coverings. Concrete floor fill where required and all floor
coverings and floor finishes, including hardwood, tile, brick, slate, marble and
terrazzo. Tenant's finished floor elevation shall match the Enclosed Mall
finished floor elevation.
6. Interior Painting. All interior painting and decoration.
7. Storefront Walls and Partitions with Finishes. All interior
partitions and walls within the Premises, storefront finishes, walls and
columns, including the wall surfacing and wall finishes required on exposed
metal or wood studs erected as part of Landlord's Work.
8. Doors. All doors and hardware within the Premises.
9. Roof Openings. Roof openings, including necessary curbs and
flashings to accommodate the installation of Tenant's Work. Roof openings shall
be located only as directed by Landlord. Reroofing of approved roof openings
will be performed by Landlord at Tenant's expense. Tenant shall not install any
roof vents without Landlord's consent and shall install roof vents only in
locations approved by Landlord. All roof openings and venting shall comply with
the applicable provisions of the Standards.
10. Public and Employee Toilet Rooms, Janitorial and Drinking
Fountain Facilities. Furnish and install together with work customarily
incidental thereto to applicable building code requirements.
11. Mechanical Equipment. All mechanical equipment, including dumb
waiters, elevators, freight elevators, conveyors and their shafts and doors
located within the Premises, including all electrical, mechanical and structural
work required for installation and operation of these items.
12. Food Preparation and Combustible Materials. In the event Tenant
engages in the preparation of food or baked goods, Tenant shall, at Tenant's own
cost and expense: (i) install dry chemical extinguishing devices (such as Ansul)
approved by the local fire insurance rating organization and Landlord's
insurance carriers, and keep such devices in good working order and repair and
regularly serviced under a maintenance agreement of the type required by
Landlord or by such fire rating organization or carriers; (ii) keep and maintain
all exhaust ducts and filters in a clean condition; (iii) place and store
Tenant's garbage and refuse in closed containers which shall be kept, until
collected, in a
Exhibit C-3
<PAGE>
self-contained, refrigerated area within the Premises set aside for the storage
of garbage and refuse; and (iv) install grease traps if required by Landlord
and/or applicable governmental authorities. In the event Tenant engages in the
use, sale or storage of flammable or combustible materials, Tenant shall install
and maintain chemical extinguishing devices similar to those referred to in
clause (i) above. In the event gas is used in the Premises, Tenant shall install
a proper gas cut-off valve. If Tenant shall fail to install any devices required
by this paragraph and/or to provide for the servicing thereof, Landlord shall
have the right to enter upon the Premises to provide such necessary
installations and servicing and charge the cost of such installations and/or the
servicing thereof to Tenant.
13. Lower and Upper Mall Level Access. Stairs, escalators, elevators
and other means of vertical transportation required by Tenant.
14. Telephone Facilities. Conduits, cabinets and outlets within the
Premises as required by the utility company supplying the service requested by
Tenant and extension of conduits to central telephone backboard.
15. Utility Meters and Connections.
(a) Water and Gas Meters. Shall be located within the Premises
at a meter location determined by Landlord or in a common meter area outside of
the Premises designated by Landlord and accessible by Tenant.
(b) Electrical Meter. Shall be located in an electrical meter
area provided by Landlord in a common area accessible by Tenant.
(c) Utility Connection Lines. All water, electric, gas and sewer
lines necessary to reach the point of connection to Landlord's utility and sewer
mains.
16. Intercom, Annunciator, Fire, Burglar, Speaker and Music Systems.
Furnish and install as required by Tenant or applicable governmental
requirements.
17. Garbage and Rubbish. Storage area for dry and/or wet rubbish
collection containers to be provided within the Premises readily accessible to
Tenant's service corridor areas.
18. Fire Sprinklers. Modification or extension of primary sprinkler
system through the ceiling to conform to Tenant's merchandising and ceiling
plans. Tenant shall, in writing, notify Landlord at least 48 hours prior to any
shut-down of Landlord's fire protection system during construction by Tenant.
With respect to any such shut-down, Tenant's contractor shall hire a security
company from Landlord's approved list of such companies. Such security company
shall be required to notify Landlord of the shut-down and the termination
thereof and shall maintain a continuous fire watch during the shut-down for the
Premises and any other premises which are affected by such shut-down. In
addition, Tenant shall indemnify, defend and hold harmless Landlord and its
partners, members, agents and employees from and against any and all claims,
damages, liabilities, costs and expenses (including attorneys' fees and costs of
defense) arising out of or relating to any occurrence during such shut-down and
preventable by such fire protection system but for such shutdown.
B. Temporary Services; Storefront Barricade and Signs. Tenant shall be
responsible for or shall bear the cost of all temporary or interim items
relative to the construction of the Premises and the completion of Tenant's Work
with respect thereto, including but not limited to the following:
1. Temporary Services. During the construction of Tenant's Work,
Tenant shall provide and pay for any new connections and meters required for
water, gas and electrical services brought to such point as Landlord shall
determine. Tenant shall pay for all water, gas and electrical current used
during the construction of Tenant's Work at rates based upon actual usage with
respect to all services required by Tenant during construction of Tenant's Work.
All such charges shall be paid directly to the purveyors of such services.
2. Storefront Barricade and Store Signage. Landlord shall erect
and/or realign and remove the temporary storefront barricade for the Premises to
reasonably accommodate the completion of Tenant's Work. Landlord shall also
provide to Tenant a store opening sign with respect to the Premises consisting
of Tenant's logo and/or trade name in Tenant's typestyle which shall be painted
on or affixed to the storefront barricade for the Premises by Landlord.
Landlord shall also provide additional Tenant identification as follows: rear
door signage (if the Premises have a rear door), tenant suite number installed
on storefront soffit, revisions necessary on loading dock maps to indicate
tenant location, insert strips for and any other changes required to illuminated
directories in the Center and any directional signage provided to direct
Tenant's customers to the Premises. Tenant shall pay to Landlord as additional
rent, upon demand, an amount based on Landlord's current charge rate per lineal
foot of the storefront of the Premises for Landlord's costs incurred in
providing such storefront barricade and barricade identification. Tenant shall
also pay to Landlord as additional rent, upon demand, amounts based upon
Landlord's current charge rates therefor for Landlord's costs of providing the
other services described herein.
C. Store Fixturing and Merchandising. Tenant shall bear the entire
expense and responsibility for providing within the Premises (whether affixed to
the Premises or not) all trade fixtures and merchandise, and all other property
incidental to the business to be operated by Tenant, all meeting the criteria
set forth in Exhibit "E," including, but not limited to, the following:
1. Furnishing and installation of all carpets, shelving, store
fixtures, furnishings, interior decorations, graphics, exterior and interior
signs, mirrors, cornices and all other fixtures, lighting and other special
effects.
2. Electrical and mechanical connection of all store merchandising
fixtures and equipment with related parts, including kitchen and food service
equipment and other equipment peculiar to Tenant's occupancy.
Exhibit C-4
<PAGE>
D. PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTION 25915.5,
LANDLORD HEREBY NOTIFIES YOU OF THE FOLLOWING:
1. LANDLORD HAS HAD AN ASBESTOS SURVEY PERFORMED BY THE PICKERING
FIRM, WHICH WAS A RECOGNIZED ASBESTOS CONSULTING FIRM (THE "SURVEY"). THE
SURVEY IS AVAILABLE FOR REVIEW AND/OR PHOTOCOPYING FROM THE CENTER'S DIRECTOR OF
OPERATIONS, WHO CAN BE REACHED AT THE MANAGEMENT OFFICES, LOCATED AT 3333
BRISTOL STREET, COSTA MESA, CALIFORNIA 92626, TELEPHONE NUMBER (714) 435-2000.
2. ACCORDING TO THE SURVEY, ASBESTOS WAS LOCATED IN PHASE I OF THE
CENTER (THE SEARS TO ROBINSONS-MAY WING) AND WAS PREDOMINATELY LOCATED IN
FIREPROOFING MATERIAL SPRAYED ON THE STRUCTURAL STEEL. THERE WERE ALSO A FEW
PLACES IN PHASE I WHERE THE CONCRETE SLAB FIREPROOFING, SPRAY APPLIED ACOUSTICAL
MATERIALS, CEILING TILES AND FLOOR TILES CONTAINED ASBESTOS. THE SPECIFIC
LOCATIONS OF ASBESTOS CONTAINING MATERIALS KNOWN TO LANDLORD TO HAVE BEEN
LOCATED WITHIN THE SPACE OCCUPIED BY TENANT OR THE COMMON AREA UTILIZED BY ALL
TENANTS ARE DESCRIBED IN EXHIBIT "H" HERETO.
3. GENERALLY, THE MATERIALS DESCRIBED IN EXHIBIT "H" REMAIN NON-
HAZARDOUS AS LONG AS THEY ARE NOT DISTURBED. IN ORDER TO MINIMIZE THE RISK OF
DISTURBING THE ASBESTOS-CONTAINING MATERIALS DESCRIBED IN EXHIBIT "H," LANDLORD
HAS ADOPTED THE OPERATIONS AND MAINTENANCE PLAN SUGGESTED BY THE PICKERING FIRM
(THE "O&M PLAN"). THE O&M PLAN, WHICH IS AVAILABLE FROM THE DIRECTOR OF
OPERATIONS, PROVIDES THAT SPECIAL ACTION IS TO BE TAKEN BEFORE ASBESTOS
CONTAINING MATERIALS ARE DISTURBED, AND ALL SUCH PRECAUTIONARY ASBESTOS WORK IS
TO BE PERFORMED BY OUTSIDE CONTRACTORS WHO ARE REQUIRED TO IMPLEMENT APPROPRIATE
PROCEDURES IN ORDER TO INSURE COMPLIANCE WITH THE O&M PLAN AND MINIMIZE THE RISK
OF DISTURBING THE ASBESTOS-CONTAINING MATERIALS DESCRIBED IN EXHIBIT "H." IT IS
IMPERATIVE THAT TENANT NOTIFY THE DIRECTOR OF OPERATIONS BEFORE COMMENCEMENT OF
ANY TENANT IMPROVEMENTS, REPAIR, RENOVATION OR REMODELING ACTIVITIES THAT MIGHT
DISTURB SUCH MATERIALS AND NOTIFY LANDLORD OF ANY DETERIORATION IN SUCH
MATERIALS. UNTIL TENANT HAS BEEN ADVISED THAT THE NECESSARY PRECAUTIONS SET
FORTH IN THE O&M PLAN HAVE BEEN COMPLETED, TENANT SHALL NOT COMMENCE ANY
ACTIVITY WHICH WILL RESULT IN DRILLING, MOVING, BORING OR OTHERWISE DISTURBING
THE CEILING SYSTEMS OR THE ASBESTOS CONTAINING CONSTRUCTION MATERIALS DESCRIBED
IN EXHIBIT "H." LANDLORD'S RIGHT OF ENTRY PURSUANT TO SECTION 16.02 OF THE
LEASE SHALL INCLUDE THE RIGHT TO ENTER AND INSPECT THE PREMISES FOR VIOLATIONS
OF TENANT'S COVENANTS HEREIN. UPON ANY VIOLATION OF THE FOREGOING COVENANTS,
LANDLORD SHALL BE ENTITLED TO EXERCISE ALL REMEDIES AVAILABLE TO A LANDLORD
AGAINST A DEFAULTING TENANT, INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN
ARTICLE XIII OF THE LEASE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
TENANT EXPRESSLY AGREES THAT UPON ANY SUCH VIOLATION LANDLORD MAY, AT ITS
OPTION, IMMEDIATELY TERMINATE THIS LEASE. NO ACTION BY LANDLORD HEREUNDER SHALL
IMPAIR THE OBLIGATIONS OF TENANT HEREUNDER.
4. LANDLORD COMMENCED REMOVAL OF LANDLORD INSTALLED ASBESTOS-BEARING
MATERIALS IN THE COMMON AREA AT THE CENTER DURING 1986, AND VOLUNTARILY ADOPTED
A PROGRAM TO REMOVE ALL SUCH LANDLORD INSTALLED MATERIALS OVER A SEVERAL YEAR
PERIOD. LANDLORD ELECTED THE OPTION OF REMOVAL RATHER THAN LESS EXPENSIVE
ABATEMENT PROCEDURES SINCE REMOVAL AFFORDS THE GREATEST CERTAINTY FOR
ELIMINATING HEALTH RISKS ASSOCIATED WITH ASBESTOS. SUBSTANTIALLY ALL ASBESTOS-
BEARING MATERIALS HAVE BEEN REMOVED FROM THE ENCLOSED MALL. LANDLORD ALSO
UNDERTOOK A PROGRAM OF REMOVING ASBESTOS-BEARING MATERIALS FROM TENANT PREMISES
AS SUCH AREAS HAVE BECOME AVAILABLE FOR SUCH REMOVAL WORK (i.e., VACANT).
LANDLORD CONTINUES TO REMOVE LANDLORD INSTALLED ASBESTOS-BEARING MATERIALS FROM
TENANT OCCUPIED AREAS AND OTHER PORTIONS OF PHASE I AS THOSE AREAS BECOME
AVAILABLE TO LANDLORD FOR WORK. LANDLORD PRESENTLY INTENDS TO CONTINUE ITS
REMOVAL PROGRAM UNTIL ALL LANDLORD INSTALLED ASBESTOS-BEARING MATERIALS ARE
REMOVED FROM PHASE 1.
5. IN ORDER TO MINIMIZE THE POTENTIAL FOR RELEASE OF ASBESTOS FIBERS
PENDING THE COMPLETION OF LANDLORD'S REMOVAL PROGRAM, LANDLORD HAS UNDERTAKEN
VARIOUS PRECAUTIONS, INCLUDING MONITORING PHASE I ON A REGULAR BASIS TO VERIFY
THAT
Exhibit C-5
<PAGE>
RELEASES ARE NOT OCCURRING. THE PRECAUTIONS LANDLORD IS TAKING MEET OR EXCEED
ALL GOVERNMENTAL REQUIREMENTS WITH RESPECT TO ASBESTOS AND, SO FAR AS LANDLORD
IS AWARE, NO RELEASES ARE IN FACT OCCURRING. ALTHOUGH LANDLORD HAS BEEN
INFORMED THAT
NO ONE NEED FEAR EXPOSURE TO AIRBORNE ASBESTOS AS LONG AS THE ASBESTOS-
CONTAINING MATERIALS IN PHASE I ARE NOT DISTURBED, CALIFORNIA HEALTH AND SAFETY
CODE SECTION 25915.5 REQUIRES LANDLORD TO INFORM TENANT OF THE POTENTIAL HEALTH
RISKS WHICH MAY RESULT FROM DISTURBANCE OF ASBESTOS-CONTAINING MATERIALS. IF A
PERSON IS EXPOSED TO CERTAIN LEVELS OF ASBESTOS (WHICH LEVELS ARE THE SUBJECT OF
CONSIDERABLE DEBATE) THERE IS A RISK OF CANCER AND LUNG DISEASE. BECAUSE
LANDLORD DOES NOT HAVE ANY SPECIAL KNOWLEDGE OF THESE HEALTH RISKS, LANDLORD
ENCOURAGES TENANT TO CONTACT ONE OF THE STATE OR FEDERAL HEALTH AGENCIES WHICH
DEAL WITH ASBESTOS IF TENANT WISHES TO OBTAIN DETAILED INFORMATION ON THE
POTENTIAL HEALTH RISKS.
PURSUANT TO SECTION 25915.5, "RECEIPT OF THIS NOTICE BY AN OWNER, LESSEE OR
OPERATOR SHALL CONSTITUTE KNOWLEDGE THAT THE BUILDING CONTAINS ASBESTOS-
CONTAINING CONSTRUCTION MATERIALS...." CONSEQUENTLY, SECTION 25915 REQUIRES
TENANT TO GIVE A NOTICE SIMILAR TO THIS NOTICE, WITHIN FIFTEEN (15) DAYS AFTER
RECEIPT OF THIS NOTICE, TO (1) ALL OF TENANT'S EMPLOYEES WORKING WITHIN PHASE I,
(2) ANY SUBLESSEES OF TENANT'S SPACE AND (3) ANY CONTRACTORS WORKING WITHIN
TENANT'S SPACE. SECTION 25915 ALSO REQUIRES TENANT TO GIVE SUCH A NOTICE TO ANY
NEW EMPLOYEE, CONTRACTOR OR SUBLESSEE WITHIN FIFTEEN (15) DAYS AFTER HIRING OR
SUBLEASING.
Exhibit C-6
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
<PAGE>
SOUTH COAST PLAZA
TENANT COLD AIR
ANNUAL CHARGE SCHEDULE
GENERAL
Tenant's charge for cold air is calculated as an annual amount using
the rate, expressed on a per square foot basis, shown on the Base Rate Curve
Sheet attached as Schedule "A," applied against Tenant's Floor Area, with rate
adjustments as provided for in Sections II and III of this Exhibit "D."
I. CALCULATION OF ANNUAL CHARGE
The following procedure will be used in developing the annual charge to
Tenant:
A. The Floor Area of the Premises, calculated in accordance with
Section 16.04 of the lease, shall be used to determine Tenant's annual base
rate per square foot taken from the Base Rate Curve Sheet attached as
Schedule "A."
B. The annual rate per square foot in effect at the Rent Commencement
Date shall be the amount calculated in accordance with paragraph A above,
modified to the extent, in any, provided for in Sections II and III of this
Exhibit "D."
C. The annual rate per square foot as developed in Paragraph B above
shall then be multiplied by the Floor Area to develop the annual charge for
cold air to the Premises. The annual charge will be divided into 12 equal
installments with one such installment billed to Tenant each month. Such
monthly billings may include any applicable adjustments provided for in
Sections II and III below, or Landlord may separately bill Tenant for any
adjustment retroactive to the event causing such adjustment.
II. CALCULATION OF ANNUAL RATE ADJUSTMENT DUE TO ADDITIONAL TENANT COLD AIR AND
VENTILATION REQUIREMENTS BEYOND THE STANDARDS SET FORTH IN EXHIBIT "E"
A. The annual base rate per square foot shall be increased if:
1. The air supply quantity required by Tenant exceeds 1.2 cfm per
square foot of Floor Area; or
2. The internal sensible cooling load, including heat absorbed above
and below the ceiling but exclusive of roof and wall transmission and the
outside air contribution to total sensible cooling load, exceeds 19.4 BTUH
per square foot of Floor Area; or
3. The amount of air exhausted to the outdoors exceeds 0.10 cfm per
square foot of Floor Area; or
4. The required and optional hours of operation for the Center as a
whole are increased above 3,700 hours annually (the Base Rate Curve Sheet
is based upon required hours of 10:00 a.m. to 9:00 p.m. Monday through
Friday, and 10:00 a.m. to 6:00 p.m. Saturday, and optional opening hours of
6:00 p.m. to 9:00 p.m. Saturday and 11:00 a.m. to 6:00 p.m. Sunday); or
5. A tenant's hours of operation increases the hours of operation of
the Center's air conditioning and ventilation system over those hours used
for the Base Rate Curve Sheet attached as Schedule "A."
B. The adjustment to the annual base rate per square foot called for
under Paragraphs A1. and A2. above shall be computed as described under
Paragraphs B1. and B2. below.
1. For each 0.10 cfm per square foot of air required by Tenant above
the 1.2 cfm per square foot design criteria, the additional annual rate per
square foot will be determined from the Adjusted Base Rate Curve Sheet
attached as Schedule "B."
2. The additional annual rate per square foot for added internal
sensible cooling load shall be computed as follows:
Additional Current [ 1 Calculated Internal ]
Annual = Annual X ----- X Sensible Cooling Load -1
Rate Rate 19.4 -----------------------
Floor Area
C. The adjustment to the annual base rate per square foot under Paragraph
A3. above shall be computed as follows: For each additional 0.10 cfm of exhaust
air per square foot above the 0.10 cfm per square foot design standard, the
additional annual rate per square foot will be $0.20 (20 cents).
Note: This annual rate adjustment is subject to escalation using the
criteria set forth in Section III below.
Exhibit D-1
<PAGE>
D. The adjustment to the annual base rate per square foot under Paragraph
A4. above shall be computed as follows:
Additional Current [ Required and Optional Hours ]
Annual = Annual X of Operation Annually -1
Rate Rate ----------------------------
3,700
E. The adjusted annual rate per square foot shall be the sum of the above
separate annual rate adjustments added to the annual base rate per square foot
from Schedule "A," as escalated from time to time pursuant to Section III below.
F. The adjustment to the annual base rate per square foot called for under
paragraph A5. above shall be the sum of the above separate annual rate
adjustments added to the annual base rate per square foot from Schedule "A" and
computed as follows:
Additional Base Rate and all [ Required, Optional and Added ]
Annual = separate annual rate X Hours of Operation Annually -1
Rate adjustments ----------------------------
1
III. CALCULATION OF ANNUAL RATE ADJUSTMENTS DUE TO COSTS AND EXPERIENCE
A. Tenant's annual base rate per square foot of Floor Area shall be
increased or decreased due to (1) changes in utility costs and personnel and
other operating costs which are caused by escalations in the utility and other
rate schedules used as the criteria for establishing Schedule "A," (2) changes
based on Landlord's experience with the air conditioning system and (3) changes
in Tenant's cooling load as observed from periodic audits performed by Landlord
to determine if any Tenant alterations have been made which increase or decrease
the cooling load in the Premises (see Section 12.04 of the lease). The Base
Rate Curve set forth on Schedule "A" is based upon the consumption criteria and
utility rate schedules and other operating cost schedules indicated below.
Published changes in these base utility rates and changes in the other base
operating cost schedules will establish the basis on which adjustments to
Tenant's base rate per square foot of Floor Area will be determined as follows:
1. Utility Operating Cost Adjustment
a. Base Criteria
-------------
(1) Utility Base Year Consumption
The Base Rate Curve Sheet was established on the basis
of base year consumption figures calculated by
Landlord's system engineers for each of the following
utilities:
(a) Electricity
(b) Natural gas
(c) Water and sewer
The base year consumption figures were calculated to
reflect an operating year of full occupancy in the
Shopping Center.
(2) Utility Base Rate Schedules
The Base Rate Curve Sheet was established on the basis
of the Southern California Edison Company, Southern
California Gas Company and Mesa Consolidated Water
District rate schedules identified on Schedule "A," as
to electricity, natural gas and water and sewer,
respectively.
b. Method of Calculation. For every published change in the
---------------------
electricity, natural gas and water and sewer utility rates, there shall be made
a utility operating cost adjustment equal to Tenant's pro rata share of the
increase or decrease in utility operating cost. The increase or decrease in
utility operating cost shall be calculated by multiplying the published utility
rate increase by the appropriate base year consumption figure, as defined in
Paragraph A.1. above. Tenant's pro rata share of the utility operating cost
increase or decrease shall be a fraction, the numerator of which shall be
Tenant's Floor Area and the denominator of which shall be the aggregate Floor
Area of all tenants or other occupants connected to the central cold air
distribution system at the time of adjustment.
2. Operating and Maintenance Personnel Cost Adjustment
a. Base Criteria. The Base Rate Curve Sheet was established on
-------------
the basis of an average per hour base labor rate for system operating and
maintenance personnel calculated to reflect the average labor rate in effect in
the Center area labor market for equivalent type personnel at the date indicated
on Schedule `A.'
Exhibit D-2
<PAGE>
b. Method of Calculation. For each ten cent ($0.10) increase or
---------------------
decrease in the average base labor rate, Tenant's annual base rate per square
foot of Floor Area shall be correspondingly increased or decreased to the extent
of four-tenths of one cent ($0.004) per square foot of Tenant's Floor Area times
the number of operating and maintenance personnel employed or under contract for
the system at the time of adjustment.
3. Insurance and Tax Cost Adjustment
a. Base Criteria. The Base Rate Curve Sheet was established on
-------------
the basis of the insurance and tax costs experienced as of the date indicated on
Schedule `A.'
b. Method of Adjustment. Any increase or decrease in the costs
--------------------
used in subparagraph 3a. above shall be prorated. Tenant's pro rata share of
such insurance or tax costs increase or decrease shall be a fraction, the
numerator of which shall be Tenant's Floor Area and the denominator of which
shall be the aggregate Floor Area of all tenants or other occupants connected to
the central plant cold air distribution system at the time of adjustment.
4. Accounting and Administrative Personnel Cost Adjustment
a. Base Criteria. The Base Rate Curve Sheet was established on
-------------
the basis of the average accounting and administrative personnel cost
experienced as of the date indicated on Schedule `A.'
b. Method of Calculation. For each ten cent ($0.10) increase or
---------------------
decrease in the average per hour accounting and administrative personnel costs,
the annual base rate per square foot shall be correspondingly increased or
decreased to the extent of two-tenths of one cent ($0.002) per square foot of
Tenant's Floor Area times the number of accounting and administrative personnel
employed by Landlord at the time of adjustment.
5. Title 24 -- Energy Code Compliance
a. Base Criteria. All new tenant spaces shall comply with Title
-------------
24 of the California Administrative Code, as stated in Exhibit "E," Section IV,
paragraph C-2.
b. Method of Enforcement. At Landlord's discretion, periodic
---------------------
audits shall be made to verify continuous compliance by Tenant with the
requirements of Title 24. If these audits identify increases in consumption from
the base criteria, then Landlord, at its discretion, may direct Tenant to modify
its electrical consumption to meet the requirements of Title 24.
B. Experience Adjustment
In addition to the annual base rate adjustment provided in Paragraph A of this
Section III, Landlord reserves the right to increase or decrease the annual base
rate per square foot from time to time by the issuance of a revised rate
schedule based on Landlord's accumulated experience compiled from the operation
of the central cold air distribution system, including increased costs of
materials and supplies, costs incurred for governmental impositions and to meet
governmental requirements, unusual or extraordinary costs in maintaining or
repairing the central plant equipment and distribution system, costs experienced
for purchase and installation of new equipment and renovation of existing
equipment and the distribution system and costs incurred to utilize and add to
the plant equipment and distribution system new technological features.
Exhibit D-3
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
<PAGE>
[GRAPH OF BASE RATE CURVE SHEET @4060 HRS. - SCHEDULE A]
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
<PAGE>
[GRAPH OF ADJUSTED RATE CURVE SHEET - SCHEDULE B]
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
<PAGE>
SOUTH COAST PLAZA
DETAILED DESIGN CRITERIA AND STANDARDS FOR LANDLORD'S
WORK AND FOR TENANT'S WORK*
<TABLE>
<CAPTION>
Table of Begins on
Contents Page Number
- -------- -----------
<S> <C> <C>
SECTION I SPECIAL CONDITIONS FOR TENANT'S DESIGN AND CONSTRUCTION
WORK.................................................. E-2
SECTION II SPECIALTY SHOPS BUILDING SHELL.......................... E-4
SECTION III CENTRAL STATION AIR HANDLING SYSTEM..................... E-4
SECTION IV STORE FINISHING......................................... E-5
A. Architectural....................................... E-5
B. Signs............................................... E-5
C. Electrical.......................................... E-6
D. Description of Air Distribution System.............. E-7
E. Miscellaneous Tenant Responsibilities............... E-8
F. Requirements For Tenant's Work...................... E-9
G. Landlord and Tenant Work Design Criteria for
Plumbing and Gas Fitting.......................... E-9
SECTION V BID AND CONSTRUCTION PROCEDURES FOR TENANT'S CONTRACTOR. E-10
</TABLE>
_______________
* THIS EXHIBIT SETS FORTH, IN GREATER DETAIL, CERTAIN ASPECTS OF LANDLORD'S
WORK AND TENANT'S WORK SET FORTH GENERALLY IN EXHIBIT "C"' AND SHOULD BE READ IN
CONJUNCTION WITH EXHIBIT "C." EXHIBITS "C" AND "E" ARE INTENDED, TOGETHER WITH
THE STANDARD MECHANICAL INSTALLATION PRACTICES (THE "STANDARDS") DEVELOPED BY
LANDLORD'S ENGINEERING DEPARTMENT, TO SET FORTH COMPREHENSIVE STANDARDS AND
CRITERIA WITH RESPECT TO TENANT'S WORK IN THE PREMISES.
Exhibit E-1
<PAGE>
I. SPECIAL CONDITIONS FOR TENANT'S DESIGN AND CONSTRUCTION WORK. This Section
sets forth minimum standards of performance for Tenant's Work.
A. Codes and Standards. All work shall comply in all respects with the
following:
1. The Uniform Building Code and/or state, county, city or other
laws, codes, ordinances, and regulations, as each may apply according to
rulings or determinations of governmental authorities having jurisdiction
with respect to the Center.
2. Applicable standards of the National Board of Fire Underwriters,
the National Electrical Code, the American Gas Association, and the
American Society of Heating, Refrigerating and Air Conditioning Engineers.
3. Building material manufacturers' specifications.
B. Drawings and Specifications.
1. Design Plans shall include:
(a) Floor Plan and Merchandising Plan (1/8" or 1/4" scale)
showing the outline of the Premises and the location and extent of
interior partitions, sales fixtures, racks and fittings, decorative
treatments, signs and displays, storage, shelving, racks or other
devices, counters, and all other materials, equipment and features
(other than merchandise) installed or placed in the Premises.
(b) Reflected Ceiling Plan (1/8" or 1/4" scale) showing the
outline of the sales area and the location, type, and size of lighting
fixtures, air diffusers, grilles, acoustical ceiling pattern or
drywall and fire sprinkler heads.
(c) Storefront Elevations and Sections including sign design and
details (minimum 1/4" scale).
(d) Architectural cross sections and details as required (minimum
3/8" scale).
(e) All Interior Elevations (minimum 1/4" scale).
(f) Color and materials sample board.
2. Working Drawings shall be prepared by a licensed architect
(electrical and mechanical design and construction documents must be
prepared by a licensed, professional engineer) and shall include drawings
and specifications and bid forms of such scope as to completely delineate
the construction work to be performed including:
(a) Electrical Calculations showing:
1. Number of circuits
2. Connected load of each circuit
3. Number of spare circuits
(b) Mechanical Calculations showing:
1. The heating required (transmission and ventilation losses)
in each space.
2. The ventilation supply and exhaust required for each
space and the ventilation supply and exhaust provided, if any.
3. The cooling load in each space.
4. The total air flow in each space.
5. Mechanical systems shall utilize Center standard zone
terminal units, control ductwork and appurtenances with no
exceptions. The entire mechanical installation shall be performed
in strict accordance with the guidelines presented in the
"Standards." A copy thereof can be obtained from Landlord's tenant
coordinator.
(c) Mechanical Equipment Data showing:
1. Temperature Control System including control diagram and
specification of make.
2. Gas calculations as required by the gas company providing
service.
(d) Engineered electrical drawings signed by an electrical
engineer showing electrical loads in the Premises and accompanied by
detailed electrical and mechanical calculations demonstrating
compliance with Divisions 1-4 of Title 24 of the California
Administrative Code.
(e) Any other drawings and specifications required by the current
edition of the Standards or any governmental authority having
jurisdiction of the Premises.
C. Approval of Drawings, Specifications and Contractors. In this Exhibit
"E" any reference to "Landlord" shall mean Landlord or Landlord's tenant or
construction coordinator or other agents. The merchandising plans and working
drawings and specifications shall comply with the provisions set forth in
Exhibit "C" and this Exhibit "E" and shall be subject to Landlord's approval.
Later additions and/or alterations must also comply with Exhibits "C" and "E"
and must be approved by Landlord. Tenant shall use a tenant improvement general
contractor approved prior to the start of the work by Landlord to perform all
Tenant's Work. Tenant must receive Landlord's advance approval of the day when
Tenant may commence work.
Exhibit E-2
<PAGE>
D. Utilities. Tenant shall obtain and deliver to Landlord all approvals
with respect to electrical, gas, water and telephone work as may be required by
the utility companies supplying the services. Tenant shall obtain utility
service, including meters, from the utility companies which supply service
unless Landlord elects to supply service and/or meters. Landlord, an
independent contractor, or an authorized utility company, as the case may be,
shall have the right, subject to Landlord's prior written approval, to run
utility lines, pipes, conduits or ductwork, where necessary or desirable,
through plenum space (i.e., above the drop ceiling), column space, partitions,
beneath the floor slab, in or through other parts of the Premises and to repair,
alter, replace or remove the same, all in a manner which does not interfere
unnecessarily with Tenant's use thereof.
E. Casualty and Liability Insurance Requirements. Tenant shall cause to
be carried (i) insurance against damage by fire and other casualty to the
construction and improvements to be made by Tenant and (ii) insurance against
injury to persons and damage to the improvements and personal property of
Landlord and adjacent tenants resulting from Tenant's Work, including negligence
of Tenant contractors. Such insurance shall be in the amounts and with such
extended coverage and other endorsements as are required pursuant to Article
VIII of the lease and shall name Landlord as an additional insured. Certificates
for such insurance shall be delivered to Landlord before construction is started
or contractor's equipment is moved on the site. If during the course of Tenant's
Work any damage shall occur to the construction and improvements being made by
Tenant, or to the improvements and personal property of Landlord or adjacent
tenants, Tenant shall repair the same at Tenant's cost.
F. Bond. Prior to commencement of Tenant's Work in the Premises, Tenant
shall furnish either documentary evidence that all funds necessary to complete
Tenant's work are in an escrow account satisfactory to Landlord for disbursement
only for Tenant's work or a payment bond and a performance bond, both
satisfactory to Landlord, each in the amount of the construction contract, to
ensure the prompt and faithful performance of Tenant's Work and payment
therefor. In the event that, during the course of Tenant's Work, the amount of
the construction contract is increased, the principal amounts of such bonds
shall be increased to equal the increased contract amount. In the event of any
increase, in the aggregate, of twenty percent (20%) or more, Tenant shall obtain
and deliver to Landlord the written consent of the surety on such bonds to such
increase in contract amount and the commitment of such surety that its liability
on such bonds covers such increased contract amount.
G. Landlord's Right to Perform Tenant's Work. As described in Exhibit
"C," the design for Tenant's HVAC work shall be prepared by an air conditioning
engineer approved by Landlord, at Tenant's cost. In addition, all HVAC
construction work shall be performed by an air conditioning contractor approved
by Landlord, at Tenant's cost. Such design and construction shall comply with
the applicable provisions of the Standards. Landlord shall also have the right
(but shall not be obligated) to perform by its own contractor or subcontractor,
on behalf of and for the account of Tenant, any Tenant's Work which Landlord
determines should be so performed. Generally, such work shall be work which
affects any structural component, including but not limited to, the Specialty
Shops Buildings Shell or the general utility systems located within the
Specialty Shops Buildings Shell in which the Premises are located.
Landlord may, at its option, by written notice given at least five (5) days
prior to the commencement of such work, enter upon the Premises and perform such
work and Landlord's cost of planning and performing such work shall become due
and payable by Tenant as additional rent upon demand. Similarly, Landlord may,
if Tenant fails to properly perform or correct any of Tenant's Work within five
(5) days after written notice from Landlord to Tenant setting forth such failure
or deficiency, enter upon the Premises and perform such work and Landlord's cost
of planning and performing such work shall be payable by Tenant as additional
rent upon demand.
H. Cooperation. Tenant's architects, engineers, and contractors will work
in harmony with each other and with those of Landlord so as to insure proper
maintenance of good labor relationships.
I. Coordination. Tenant's Work shall be coordinated under Landlord's
direction with work being done by Landlord and other tenants in the Center, so
that Tenant's Work will not interfere with or delay the completion of any other
construction work in the Center.
J. Acceptance of Work; Completion of Punchlist Items. Landlord's
acceptance of Tenant's Work as being complete in accordance with the approved
working drawings and Exhibits "C" and "E" shall be subject to Landlord's
inspection and subsequent written approval. Such inspection shall be a two phase
process, as follows. At least two (2) days prior to the City's "rough work"
(plumbing, electrical, framing, etc.) inspection, Tenant shall notify Landlord
of the anticipated date of such inspection. Landlord shall conduct an inspection
of such rough work concurrently with or within 24 hours prior to or subsequent
to such City inspection. Similarly, Tenant shall give Landlord prior written
notification of the anticipated completion date of Tenant's Work and shall
schedule a "walk-through" concurrently with the final City inspection or within
24 hours prior to or subsequent to such final City inspection. Such final
inspection by Landlord shall be prior to opening the Premises for business. The
rough work inspection and the walk-through shall be attended by Tenant, Tenant's
architect, Tenant's contractor and a representative of Landlord. A "punchlist"
of items to be completed and/or corrected by Tenant shall be compiled with
respect to the rough work inspection and the final walk-through. Tenant shall
promptly correct and/or complete all items on such punchlists and failure to do
so within twenty (20) days
Exhibit E-3
<PAGE>
after the relevant inspection shall permit Landlord, without notice, to correct
and/or complete such items pursuant to Article VII of the lease. IN NO EVENT
SHALL TENANT OPEN PRIOR TO SUCH FINAL WALK-THROUGH.
K. Ownership of Improvements. Notwithstanding any other provision of this
Exhibit "E," title to all of Tenant's Work under construction or completed and
all alterations, improvements and additions thereto which are of a permanent
nature and affixed to the Premises shall vest in Landlord upon expiration or any
earlier termination of the lease, except trade fixtures and furniture installed
by Tenant.
II. SPECIALTY SHOPS BUILDINGS SHELL. This Section sets forth detailed
specifications as to the Specialty Shops Buildings Shell as constructed by
Landlord and described generally in Exhibit "C."
A. Structure.
1. Frame. A structural frame of steel and/or concrete with floors and
roofs designed to carry the following allowable live loads per square foot:
(a) Lower Mall Level................... 75 pounds
(b) Upper Mall Levels.................. 75 pounds
(c) Roof............................... 20 pounds
(d) Court and Malls.................... 100 pounds
2. Walls. The interior side of all exterior walls, interior
partitions separating tenant premises from common corridors and stairs and
the common area side of common corridors and stairs are AS IS as to
materials and finishes and comply with applicable governmental
requirements.
3. Exterior Finishes. Wall finish of a suitable nature and of
appropriate material, having a finished, high quality appearance and
decorative quality as designed by Landlord's architect.
4. Interior Finishes.
(a) Floors for Lower Level and Upper Level Tenant areas are
concrete with existing floor finishes and elevations. Tenant's
finished floor elevation shall match the adjacent Enclosed Mall
finished floor elevation.
(b) Ceilings for Tenant areas shall be exposed structural steel
and/or exposed concrete on both levels.
B. Utilities.
1. Electrical. See Exhibit "C."
2. Water. If Tenant should require water, Tenant may be individually
supplied from Tenant's meter which will be located in a common area
accessible to Tenant. Tenant shall be responsible for service lines from
connection with Landlord's main to the Premises. If any such water service
is supplied to Tenant by means of a common line serving Tenant and other
tenants and without a separate meter to measure Tenant's consumption,
Tenant shall be responsible for the service line from connection with the
common service line to the Premises. Tenants involved in food preparation
shall be responsible for both the service line from connection with
Landlord's main to the Premises and the meter at Tenant's sole expense.
3. Gas. If Tenant should require gas, Tenant will be individually
supplied from Tenant's meter which will be located in a common area
approved by Landlord and accessible to Tenant. Tenant shall be responsible
for the meter and service line from connection with Landlord's main to the
Premises.
4. Telephone. See Exhibit "C."
5. Fire Sprinklers. A complete system of fire sprinklers has been
installed throughout the Specialty Shops Buildings Shell as required by
applicable code.
III. CENTRAL STATION AIR HANDLING SYSTEM. There is a central air conditioning
plant and distributed air handlers which serve all areas by means of ducts. The
central plant is located in a penthouse on the roof of the Center and the air
handlers are at various locations on the roof of the Center. The ducts
distribute air to each store.
IV. STORE FINISHING. This portion of this Exhibit shall govern the design and
installation of architectural finishes, signs, mechanical, plumbing and
electrical systems for store finishing. Permission for any deviations by Tenant
from the provisions hereof must be obtained in writing from Landlord.
Exhibit E-4
<PAGE>
A. Architectural. All materials and methods of construction listed herein
are intended to indicate the minimum acceptable level of quality and
performance. Alternate or additional materials and methods of construction are
subject to the prior written approval of Landlord.
1. Areas in the Specialty Shops Buildings, Upper and Lower Levels,
accessible to customers, including but not limited to sales areas, dressing
and fitting rooms, restrooms, office areas, etc.:
(a) Ceilings shall be gypsum board or non-combustible acoustic
tile suspended on an adequate concealed spline suspension system
supported from hanger wires. The space above the ceiling line which is
not occupied by or allotted to Landlord's Work (structural members,
duct work, piping, etc.) may be used for installation of suspended
ceilings, recessed lighting fixtures, and duct work. Tenant ceiling and
storefront design shall be such that it meets the Building Code
requirements for smoke curtain drops.
(b) Interior. All partition walls separating tenants or tenant
areas from common areas will extend to a height of twelve feet with 1"
x 1" wire fabric or other security methods as approved by Landlord to
structure. Finish materials on partitions separating tenants or
separating tenant areas from common corridors or stairs will extend to
Tenant's finished ceiling. All such partitions shall be finished with
five-eighths inch (5/8") type X gypsum wallboard applied to metal studs
with mechanical fasteners in such a manner that the wall, when finished
on both sides, will be an approved one-hour fire resistant wall. Joints
shall be taped and floated.
(c) Partitions within the Premises shall meet fire resistance
specified in the applicable building code.
(d) Floors. Minimum standards for floor covering where required
shall be resilient, vinyl tile. All raised floor areas shall be of fire
resistant materials meeting applicable building code requirements or
shall be serviced by sprinklers meeting applicable code requirements.
(e) Storefronts. Security shall be by means of pre-finished
roll-up grilles with solid inserts or glass/wood doors or sliding glass
doors. The open front portion of all tenant stores having frontage on
the Enclosed Mall shall not exceed 8 feet in width if the storefront
width is less than 20 lineal feet and shall not exceed 10 feet in width
if the storefront width is greater than 20 feet, except for multiple
storefronts which will be determined on an individual basis. All
storefronts shall be designed and engineered so as to avoid excessive
deflection of plate glass panels. All storefront glass within sixteen
inches (16") of floorline and within three (3) feet of entry doors
shall be heat tempered or safety glass.
(f) Swinging Entrance Doors must be recessed in such a manner that
the door when open will not project beyond the lease line defining the
Premises. Entrance doors shall have concealed door closers. No
storefront or any part thereof shall project beyond the lease lines
defining the Premises. All glass in all entrance doors, and all glass
in door sidelights, shall be heat tempered or safety glass.
(g) All Planters shall be self-contained with no discharge of
water permitted and are subject to Landlord's approval.
(h) Structural Members. Tenant will perform all necessary
patching or repair work with respect to fireproofing on all monocoate
structural members in the Premises.
(i) Storage in both sales areas and stock areas shall be located
at least 3 inches above the finished floor of tenant Premises.
2. Areas not accessible to customers in the Specialty Shops Buildings
Shell. All areas in the Specialty Shops Buildings Shell on both mall
levels not accessible to customers shall have no less than the following
minimum finish:
(a) Ceiling Finish, Painting, Floor Covering not required.
(b) Interior Metal Stud Partitions separating tenants or
separating tenant areas from common corridors or stairs shall be
finished to structure subject to provisions for return air plenum, with
five eighths inch (5/8") thick type X gypsum wallboard applied to metal
studs with mechanical fasteners in such a manner that the wall when
finished on both sides will be an approved one-hour fire resistant
wall.
(c) Interior Partitions within Premises shall meet fire resistance
specified in the applicable governmental code.
(d) Storage shall be in accordance with 1(i) above.
B. Signs
1. Introduction. It is intended by these criteria that the signs for
tenant stores be developed in an imaginative and varied manner. The
development of signs with various styles and materials, consistent with the
design criteria set forth below, is encouraged.
2. Administration. Landlord's written approval of Tenant prepared
sign drawings and specifications is mandatory. Landlord reserves the right
to reject any sign design which in its sole opinion is not compatible with
the aesthetics of the Center. EXCEPTIONS TO SIGN CRITERIA WILL BE
EXTREMELY RARE AND MUST BE IN WRITING SIGNED BY LANDLORD OR ITS ARCHITECT.
Exhibit E-5
<PAGE>
3. Criteria. Interior Signs for Tenants in Specialty Shops
Buildings:
(a) All signs and identifying marks shall occur within the limits
of demised Premises between the floor line and twelve-foot ceiling line
except as allowed in (b) below.
(b) Signs shall not project beyond the line of the Premises
bordering common areas more than two inches (2") if less than eight
feet (8') above finished floor line or more than six inches (6") if
above eight feet (8').
(c) Signs may be placed at a right angle to the storefront only
inside the lease line of the Premises and only under special conditions
approved by Landlord.
(d) The wording of signs shall be limited to the store name only.
(e) Corporate crests, shields or insignia are acceptable.
Corporate crests, shields or insignia shall not exceed eighteen inches
(18") in width or height. The area of such items shall be included in
the aggregate allowable area of signage.
(f) Multiple or repetitive signs may be allowed provided the
aggregate area of such signs conforms to the limitations set forth
herein.
(g) Paper signs and stickers shall be prohibited.
(h) Signs shall have no moving or flashing lights.
(i) Letters may be back-illuminated with lamps contained wholly
within the depth of the letter and with maximum brightness not in
excess of 100 foot lamberts. Non-illuminated letters installed
entirely within the Premises may deviate from restrictions of height
and area only with the prior written approval of Landlord.
(j) Exposed neon tubing for signage will be reviewed on an
individual basis only. Acceptable exposed neon tubing will be at the
sole discretion of Landlord.
(k) No exposed conduit, tubing, raceways, switches, ballast boxes
or transformers will be permitted.
(l) Sign company names or stamps shall be concealed.
(m) The average height of letters shall not exceed eighteen inches
(18").
(n) The signs for each facade fronting on common area (Enclosed
Mall, side malls, and mall courts), shall be limited in total area by
the following formula: Area* of sign (in square feet) equals foot
frontage** of the Premises multiplied by 0.375.
* The area of a sign is defined as the area of a rectangle
surrounding all of the letters of the sign. Where upper and lower case
letters are used, the average height of the letters shall be used to
determine the height of the rectangle.
** Foot frontage of the Premises is defined as the length of
the facade measured along the lease line separating the Premises from
the adjacent Enclosed Mall, side malls, or mall courts.
(o) Working drawings must include sign design and specifications.
(p) "CAN" or "BOX" signs are not permitted.
C. Electrical
1. Electrical System design and installation shall be state of the
art and first class materials and workmanship.
2. Tenant's Electrical Load for lighting shall be designed to comply
with the most current version (as approved by Landlord) of Title 24 of the
California Administrative Code. Tenant shall, prior to commencement of
Tenant's Work, furnish to Landlord energy worksheets demonstrating
compliance with Title 24 and signed by an engineer registered in the State
of California.
3. Materials, Products and Equipment, including all components
thereof, shall be new and selected from the Underwriters Laboratories List
of Approved Items and shall meet requirements of ASTM, IESE, APCEA, NEC,
NEMA, CMB and other recognized standards and shall be sized in conformity
with requirements of the National Electrical Code and other applicable
codes, whichever is most stringent. Copper wiring will be used exclusively
in all installations.
4. Lighting Panelboards shall be the 3 phase, 4 wire distributed
phasing type. Cabinets shall be constructed of code gauge steel, totally
enclosed, wall mounted or free-standing.
(a) All breakers shall be of the bolted type.
(b) Lighting circuits shall be 20 ampere capacity, with connected
load not to exceed 70% of breaker trip rating.
(c) Circuit breakers shall be thermal magnetic type, molded case
with all two and three pole breakers of the common trip type. One
spare circuit breaker of 20 ampere capacity shall be provided for
every five active circuits.
Exhibit E-6
<PAGE>
5. Magnetic Motor Starters shall be used for integral horsepower
motors. Starters shall have three (3) overload elements. Combination
starters, when used, shall contain AB circuit breakers or fused switches
with double element fuses.
6. Illumination. Store lighting, especially as it pertains to heat
production, should be coordinated with the air conditioning design criteria
set forth in Paragraph D below. Exposed fluorescent fixtures will not be
permitted. No exposed surface track lighting is permitted in show windows.
7. Installation shall be as follows:
(a) All work shall be installed so as to be readily accessible
for operating, servicing, maintaining and repairing.
(b) Hangers shall include all miscellaneous steel, such as
channels, rods, etc., necessary for the installation of work. Hangers
shall be fastened to steel, concrete or masonry, but not to piping,
and the electrical work shall be installed in a manner which will not
overload the building structure.
(c) All conduits shall be concealed.
(d) Conductors shall be in conduits, ducts, or approved raceways.
(e) All wiring, including security, telephone and stereo systems
located above the tenant drop ceiling in the return air plenum must
either be in conduit or be city approved teflon wiring.
(f) Any entry way electronic detection devices, security system
or other surveillance equipment must be incorporated into the
storefront design. No exposed equipment, rails, suspended or
freestanding boxes, posts or columns shall be permitted.
8. Grounding shall be as follows:
(a) Conductors in conduit.
(b) Connections bolted or brazed.
(c) Connections to cold water lines for each conduit system and
neutrals of transformer.
9. Maintenance and Operation
(a) Tenant shall maintain all electrical equipment and
distribution systems within the Premises and promptly replace faulty
or burned-out lamps.
(b) Tenant shall keep the Premises adequately lighted at all
times when open for business.
(c) All 3-phase electrical systems are to be maintained in a
load-balanced condition at all times.
10. Electrical Data Tabulation. Tenant shall submit to Landlord, for
information and approval, two copies of an Electrical Data Tabulation Sheet
on Landlord's form, completed with required data for determination of
service and feeder size.
11. Distribution Panels shall be of the convertible type. Circuit
breakers shall be thermal magnetic type, molded case, with all two or three
pole breakers of the common trip type.
D. Description of Air Distribution System
1. Ventilating and conditioned air for the Enclosed Mall, arcades and
tenant areas will be provided from a Central Station Air Handling System.
All Mall Phases are equipped with single duct, variable volume systems.
2. Main air supply ducts will be provided by Landlord and will run
throughout each floor in the ceilings within tenant areas. Extension of
insulation ducts to zone terminal units and beyond to diffusers, registers
and grilles shall be part of Tenant's Work. Spaces above drop ceilings in
tenant areas will be utilized as return air plenums. Return air registers
in tenant area ceilings, sound attenuation along with suitable free area
openings in demising walls drywalled above the ceiling line to allow the
air to return through other tenant areas and back to the air handling
intake will be provided as part of Tenant's Work.
3. Tenant Mechanical Engineering Design Criteria (Tenant Area
Criteria)
1. Design Conditions--Heating
(a) Inside dry bulb temperature: 70 degrees F
(b) Outside dry bulb temperature: 40 degrees F
(c) Or as specified in the Standards
2. Design Conditions--Cooling
(a) Inside dry bulb temperature: 72 degrees F
(b) Maximum inside relative humidity: 50%
(c) Outside dry bulb temperature: 84 degrees F
Exhibit E-7
<PAGE>
(d) Outside wet bulb temperature: 68 degrees F
(e) Or as specified in the Standards
3. Information on Supply Air Quantities
(a) Upper and Lower Level: Maximum of 1.20 average CFM per
square foot over total Floor Area allowed. Tenant cooling loads
will be adjusted for air quantities greater than 1.20 average CFM
per square foot.
(b) Outside Air: Maximum of 0.1 CFM per square foot
(included in item (a)). Tenant cooling loads will be adjusted
for air quantities greater than 0.1 CFM per square foot.
(c) Air quantity in CFM for tenant retail and occupied areas
to be calculated using sensible heat gain to space and
temperature differences shown in table below:
MALL AREA TEMPERATURE DIFFERENCES
--------- -----------------------
Phase I.................................................. 15 TD
Phase II................................................. 19 TD
Phase III................................................ 19 TD
Phase IV (Nord. Wing).................................... 17 TD
4. Information On Supply Air Temperatures
(a) Design cooling load conditions.
(1) Cold Supply. 55 degrees F Dry Bulb minimum supply air
temperature.
(b) Design heating load conditions.
(1) Supply Air. 55 degrees F Dry Bulb minimum supply air
temperature.
4. All zone terminal control systems in Phases I, II and III will be
electronic direct digital controlled ("DDC") as outlined in the Standards.
Connections to zone terminal controls, base building energy control system
wiring loop and thermostats will be part of Tenant's Work.
5. All zone terminal control systems in Phase IV will be DDC as outlined
in the Standards and shall be electronic with a special relay network for
overriding the terminal damper for smoke evacuation purposes. Controls will
require 120 VAC to be furnished by the tenant at the zone terminal box control
panel. In addition, low voltage wiring and connections between the smoke
evacuation system will have a junction box furnished by Landlord located in or
near each tenant area, at a point to be determined by Landlord.
E. Miscellaneous Tenant Responsibilities
1. All odor and moisture producing areas must be exhausted by special
exhaust systems to atmosphere. This includes employee and public toilets,
kitchens, beauty parlors and alteration rooms. Special exhaust systems shall be
designed to prevent odors and/or moisture from entering the general air
conditioning system and from traveling beyond the Premises. Exhaust air
quantities shall not be less than required by code or the Standards.
2. Special exhaust systems shall be provided complete by Tenant. Work by
Tenant will include ductwork, fans, registers and grilles and must comply with
the Standards. Ductwork will terminate outside of the building above the roof
in locations approved by Landlord. Special exhaust systems shall not draw air
from the ceiling return air plenums. In all cases, ductwork shall connect
directly to exhaust hoods in ventilated spaces or to registers or grilles
mounted in the ceiling in ventilated spaces.
3. Any special exhaust systems will have to be compensated by additional
outside air make-up in the central plant. Therefore, any exhaust air will
result in additional charges in accordance with the outside air charge rate
curve.
4. Special cooling and heating systems such as required for refrigeration
display cases and walk-in coolers, and for alteration room steam-pressing and
blocking equipment, shall be provided complete by Tenant. Energy and equipment
for heating or cooling shall be provided entirely by Tenant. Any exhaust or
make-up air requirements for this service will be provided by Tenant and may not
be exhausted into the return air plenum.
5. The location of equipment serving special exhaust and make-up air
systems and special heating and cooling systems shall be designated and/or
approved by Landlord. Routing of ductwork serving exhaust and make-up air
systems and routing of piping serving special heating and cooling systems shall
be designated and/or approved by Landlord. Location and routing shall comply
with the applicable provisions, if any, of the Standards.
6. All Tenant Stores. Air conditioning exhaust or special cooling or
heating systems shall be submitted to Landlord for approval in the manner
provided in Section I of this Exhibit "E."
Exhibit E-8
<PAGE>
7. Maintenance shall be routinely performed by Tenant periodically
throughout the term on the mixing box and related parts of the system located in
the Premises. Such maintenance shall be not less frequently than annually.
F. Requirements for Tenant's Work
1. Design and Equipment Selection:
(a) Refer to Tenant Area Criteria (Paragraph D.3 above) for the
following:
(1) Required heating and cooling design conditions.
(2) Maximum supply air quantities provided by Landlord.
(3) Supply air temperatures.
(4) Supply air pressures.
2. Materials and Methods of Construction and Workmanship
(a) All material shall be new and free from defects.
(b) Installation and materials, including ductwork and fire dampers,
shall meet the requirements of the City of Costa Mesa, the State of
California, the Factory Insurance Association (F.I.A.), the Pacific Fire
Rating Bureau, and the Standards, whichever is most stringent.
(c) All ductwork shall be galvanized steel except ductwork for kitchen
or other special equipment which shall be in accordance with applicable
code requirements or the Standards.
(d) Insulation on supply ductwork shall be no less than 1.5" thick 3/4
pound duct wrap or as specified in the Standards.
(e) All ductwork within the Premises shall be complete with diffusers,
dampers, extractors, turning vanes, hangers and specialties.
(f) All main and branch ductwork furnished and installed by Tenant's
contractor shall be designed for static pressure equal to 5" water column
maximum.
(g) Thermostats shall be electronic, with all wiring, conduits,
specifications and installation to comply with applicable codes and the
Standards.
3. Testing and Balancing
(a) Mechanical air balancing and set up of all zone terminal units and
diffusers shall be provided by Tenant. All air balancing shall be
performed by a licensed air balancing company selected by Landlord and paid
by Tenant. Tenant's contractor shall cooperate with and assist with DDC
controller and thermostat calibration. It shall be the responsibility of
Tenant's contractor to correct any deficiencies or deviations from the
working drawings or Landlord's tenant design criteria which are set forth
in the initial air balance report, and to pay for all additional air
balance testing to verify compliance with design requirements. All air
balancing, testing, reporting and corrective work required to be performed
by Tenant shall be completed within 14 days following completion of
Tenant's Work and shall conform to the Standards.
(b) After completion of air balancing, a typewritten report shall be
prepared by the air balancing company and three copies shall be submitted
to Landlord. The report shall show actual air volume readings at all
inlets and outlets to the air conditioning supply exhaust and makeup air
systems. Static pressure and air volume readings shall be shown for each
supply and exhaust fan. Air inlets and outlets, fans and air handling
units shall be identified by manufacturer, type, model number and size.
Each report shall include a summary tabulation showing the following:
(1) Floor level and Floor Area in square feet of the Premises.
(2) Total CFM air supplies to the Premises from the air
conditioning system.
(3) Total CFM air exhaust from the Premises.
(4) Total CFM makeup air supplied to the Premises.
(c) After completion of air balance work, the volume adjustment knobs
or levers on all air valves and mixing boxes in the Premises shall be
locked and the keys shall be turned over immediately to Landlord.
(d) The method of performing all air balance work is subject to the
prior approval of the South Coast Plaza Engineering Department.
G. Landlord and Tenant Work Design Criteria for Plumbing and Gas Fittings.
1. All plumbing shall be constructed in conformance with all applicable
codes and ordinances.
2. During the term of the lease, Tenant shall maintain all plumbing
facilities in conformance with all ordinances. Tenant shall also maintain,
including periodic flushing, Tenant's sewer line to Landlord's main.
3. If supplementary plumbing facilities are installed, service piping for
such facilities shall be concealed in accessible service chases. Water closets,
urinals, lavatories, janitor sinks, and drinking fountains shall be of good
standard manufacture. All urinals will require automatic electronic flush
valves. If a hot water tank(s) is provided by Tenant for its domestic hot water
requirements, then hot water tanks shall be less than 80 gallons capacity, shall
be electric automatic, and shall have all necessary safety controls.
Exhibit E-9
<PAGE>
4. If food is prepared on the Premises, Health Department requirements may
include (a) enlargement of the sewer line from the Premises to the main sewer
line and (b) installation of a grease trap in any kitchen. Such installations,
and cleaning and maintenance thereof, in accordance with Landlord and Health
Department requirements, shall be Tenant's sole responsibility, both as to
payment of costs and performance.
V. CONSTRUCTION PROCEDURES FOR TENANT'S CONTRACTOR. When requesting bids or
contracts with respect to any Tenant's Work, Tenant shall comply with the
following procedures:
A. Procedures Regarding Bids and Contracts
1. Each contractor shall review the plans, drawings, specifications
and other descriptive material regarding Tenant's Work and direct any
questions regarding these materials to Tenant's architect or Landlord's
tenant coordinator prior to submitting a bid or contract proposal.
2. Each contractor shall review the lease exhibits which pertain to
Tenant's Work and become familiar with them.
3. Each contractor shall state in his bid or contract proposal the
number of days required to complete Tenant's Work.
4. Each contractor shall state in his bid or contract proposal all
items of work that deviate from the approved plans, drawings or
specifications and shall set forth clearly the alternates which he
proposes.
5. Each contractor shall include in his bid or contract proposal a
provision that he will guarantee that Tenant's Work shall be free from any
defects in workmanship and materials for a period of not less than one (1)
year from the date of completion thereof. Such contractor shall be
responsible for the replacement or repair, without additional charge, of
all work done or furnished in accordance with his contract which shall
become defective within one (1) year after substantial completion of the
work. The correction of such work shall include, without additional
charge, all additional expenses or damages in connection with such removal
or replacement of all or any part of Tenant's Work, the Specialty Shops
Building shell and/or the common area improvements which may be damaged or
disturbed thereby. Such warranties or guaranties as to materials or
workmanship of or with respect to tenant's Work shall be contained in the
contract and shall be so written that such guaranties or warranties shall
inure to the benefit of both Landlord and Tenant, as their respective
interests may appear, and can be directly enforced by either. Upon
completion of Tenant's Work, the contractor and/or architect shall furnish
to Landlord two (2) copies approved by the contractor of all warranties,
guaranties and operating manuals relating to the equipment installed as a
part of Tenant's Work.
B. Procedures Prior to Commencement of Tenant's Work
1. Tenant's contractors will review Landlord's drawings with respect to
the Center to become familiar with existing conditions relating to sewers, water
lines, sprinkler lines, concrete slabs and structural members. Landlord does
not warrant the accuracy of any such drawings.
2. Tenant's contractor will visit the Premises and the Center to determine
the location of existing "temporary" power and will arrange for temporary
electrical service and other temporary utilities as necessary for the Premises
to meet all O.S.H.A. codes. The costs of bringing such temporary services to
the Premises, and the costs of such services, shall be Tenant's responsibility
as provided in Section II.B of Exhibit "C." Such contractor shall review with
Landlord's tenant coordinator the location of electrical and other services and
be aware of the distance and requirements to bring these services to the
Premises.
3. Tenant's contractor shall submit to Landlord's tenant coordinator for
approval a list of proposed subcontractors, and a bar chart progress schedule
listing suppliers, major items and any key sub-items.
4. Tenant's contractor shall hold a pre-construction meeting with
Landlord's tenant coordinator to review and schedule Tenant's Work and to
discuss any unusual aspects thereof or problems anticipated in connection
therewith.
5. Tenant's contractor shall select only subcontractors who have a proven
history of diligently performing their work in a timely manner and producing
good quality work.
6. Tenant's contractor shall obtain and pay for all necessary permits with
respect to Tenant's Work, unless otherwise instructed by Landlord.
7. Tenant's contractor shall obtain from each subcontractor a written
guaranty or warranty of the type set forth in A.5 above, covering the portion(s)
of Tenant's Work for which such subcontractor is responsible.
C. Procedures During Construction of Tenant's Work
1. Tenant's contractor shall do or cause to be done all demolition work
such as jackhammer work, concrete saw cutting, wrecking, removal of trash and
any other activities generating loud noises in a manner that does not create
Exhibit E-10
<PAGE>
noise, dust and interference with the operations of the Center. All jackhammer
and similar work shall stop at 9:30 a.m. each morning, unless approval to
continue past such hour is obtained in advance from Landlord's tenant
coordinator.
2. Tenant's contractor and any subcontractor participating in Tenant's
Work shall obtain approval from Landlord for any space outside of the Premises
within the Center, including all exterior areas, which such contractor or
subcontractor desires to use for storage, handling and moving of materials and
equipment, as well as for the location of any field office and/or facilities for
personnel.
3. Tenant's contractor shall maintain a clean, safe and orderly job site
and shall not use the trash removal system for the Center to remove trash from
the Premises. Tenant's contractor and all subcontractors participating in
Tenant's Work shall remove and dispose of, at least once a week and more
frequently as Landlord may direct, all debris and rubbish caused by or resulting
from demolition or the construction of Tenant's Work and, upon completion,
remove all temporary structures, surplus materials, debris and rubbish of
whatever kind remaining in the Premises or within the Center which had been
brought in or created by the contractor and subcontractors performing Tenant's
Work. Clean up shall also comply with all specific requirements in the
Standards. If any such contractor shall neglect, refuse, or fail to remove any
such debris, rubbish, surplus material or temporary structures within two (2)
days after notice to Tenant's contractor from Landlord, Landlord may cause the
same to be removed by contract or otherwise as Landlord may determine expedient
and charge the cost thereof, after exhausting any clean-up deposits, to Tenant.
4. If the Premises have service doors, Tenant's contractor shall arrange
for all employees, tools, equipment and supervisory personnel to enter and exit
the Premises through such service doors. Tenant's contractor shall be
responsible to clean up any dust, dirt, or tracks which result from entry or
exit through any other doors or entrances to the Center. When size and shape of
materials or equipment makes impossible the use of the service doors, permission
for access through other entrances will be granted by the tenant coordinator,
but only prior to 10:00 A.M. Where the Premises do not have service doors,
Tenant's contractor shall cause materials and major items to be delivered prior
to 10:00 A.M. Tenant's contractor shall also maintain proper cleanup and dust
removal during the course of the working day in accordance with the Standards.
5. Prior to the installation of floor fill which is applied over the
concrete sub-floor, a method of adhesion to the sub-floor shall be submitted for
approval by Landlord's tenant coordinator. Landlord's tenant coordinator shall
inspect the area to receive floor fill prior to filling and approve the method
of adhesion.
6. Tenant's contractor will be responsible for advising his subcontractor
doing fire protection work of Landlord's requirements for reporting "shutdown"
of Landlord's fire protection system to Landlord prior to the start of any work
of this type. In addition, Tenant's contractor shall be aware of the monocoate
fire protection on structural steel and shall be held responsible for the
protection and repair of same. Any such shutdown shall comply with the specific
requirements of the Standards.
7. Tenant's contractor shall provide to Landlord's tenant coordinator, for
informational purposes, copies of all schedules and the like with respect to
tenant's Work and all significant changes thereto.
D. Miscellaneous Procedures
1. Tenant's Work and all portions thereof shall be performed in a first
class and workmanlike manner in conformity with the working drawings approved by
Landlord. Any matters of design criteria or work which are not in conformity
with the working drawings and the procedures set forth in this Exhibit "E," in
Exhibit "C" and the Standards shall be promptly reported to Landlord's tenant
coordinator. Upon completion of Tenant's Work, the Premises shall be in good,
clean and usable condition.
2. Tenant's contractor shall provide full time, on-the-job supervision
when subcontractors or employees are working in the Premises. The supervisor
for Tenant's contractor shall be responsible for conformance to all Center
regulations regarding tenant construction. All Tenant's Work shall be performed
by Tenant's contractor or persons or firms under subcontract to Tenant's general
contractor to allow him to maintain control of the work in progress. In the
case of restaurant or other tenants with a separate equipment supplier, the
Tenant shall require its general contractor to supervise all trades until the
completion and opening of the Premises for business and such supplier shall be a
subcontractor to Tenant's general contractor.
3. Tenant's contractor shall maintain and require all subcontractors to
maintain worker's compensation insurance covering all of their respective
employees and shall also carry public liability insurance, including property
damage, with limits and on forms and in companies approved by Landlord, and the
policies therefor shall insure Landlord and Tenant as well as the contractor.
Certificates for all of the foregoing insurance shall be delivered to Landlord
before construction is started or contractor's equipment is moved onto the site.
Exhibit E-11
<PAGE>
4. Tenant's contractor shall cooperate with and coordinate scheduling of
construction with Landlord's tenant coordinator to avoid interference with other
construction work in and about the Center or interference with the operations of
the Center and its tenants.
5. Upon completion of Tenant's Work, Tenant's contractor or Tenant's
architect shall furnish to Landlord one (1) complete set of as-built,
reproducible drawings depicting the improvements constructed as Tenant's Work.
As-built drawings shall clearly show by means of notes, clouding and dates all
changes to the construction documents.
E. Approved List of Contractors
Notwithstanding anything contained in this Exhibit "E" or elsewhere in
this lease, Landlord has established an "approved list" of tenant improvement
general contractors who are available for work of the same type as Tenant's
Work, who have a reputation for good quality work and with whom Landlord or its
affiliates have had satisfactory tenant improvement work experience. Tenant may
select its general contractor for Tenant's Work from the approved list. A copy
of such approved list will be furnished by Landlord's tenant coordinator upon
request by Tenant. If Tenant selects a general contractor from such approved
list, Landlord will waive the cash escrow and bond requirements set forth in
part I.F. of this Exhibit "E."
Exhibit E-12
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
<PAGE>
[STORE FLOOR PLANS]
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
EXHIBIT E
<PAGE>
[DRAWING OF STORE FRONTS]
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
EXHIBIT E
<PAGE>
ACCELERATED BUILDING PLAN REVIEW AGREEMENT
THIS AGREEMENT, dated ___________________, is made by the CITY OF
COSTA MESA, a municipal corporation (CITY), and
__________________________________ (DEVELOPER) and _____________________
(ENGINEER) in Costa Mesa, California.
W I T N E S S E T H
WHEREAS, the CITY has established a procedure whereby a DEVELOPER may
retain the services of a qualified independent ENGINEER to perform the building
plan review normally conducted by the CITY or its private contractors; and
WHEREAS, DEVELOPER proposes to utilize the accelerated plan review
process in connection with the proposed development of property located at
___________________________ in the city of Costa Mesa; and
WHEREAS, ENGINEER represents that he is duly licensed by the State of
California, and that he shall meet all minimum qualifications and
responsibilities required by CITY as hereinafter stated; and
WHEREAS, DEVELOPER understands and agrees that no building permit
shall be issued until all requirements and conditions of this agreement have
been satisfied; and
WHEREAS, ENGINEER represents that he has that degree of specialized
expertise contemplated within California Government Code Section 37103 and holds
all necessary licenses to practice and perform the services herein contemplated;
and
WHEREAS, no official or employee of CITY has a financial interest in
the subject matter of this Agreement contemplated within the provisions of
California Government Code, Sections 1090-1092; and
WHEREAS, ENGINEER declares that he shall perform the services herein
contemplated in compliance with the Federal and California Laws related to
minimum hours and wages (40 U.S.C. 276A, et. seq., and California Labor Code
Section 6300, et. seq., and California Labor Code, Section 1410, et. seq.), to
the extent same are applicable herein.
NOW THEREFORE, in consideration of the mutual promises of the parties,
and other good and sufficient consideration, the parties agree to the following:
I. BUILDING PLAN REVIEW SERVICES
A. CITY does hereby agree to accept ENGINEER to perform building plan
review in accordance with the terms and conditions herein set forth.
B. ENGINEER shall review plans for compliance with pertinent City and
State regulations falling within the purview of the building official of the
City of Costa Mesa.
II. FEES FOR BUILDING PLAN REVIEW SERVICE
A. Fees for performing the building plan review shall be negotiated
between DEVELOPER and the ENGINEER and said fees shall be paid to ENGINEER by
DEVELOPER. The CITY shall not be responsible to ENGINEER to any extent for the
fee owed by DEVELOPER. CITY shall not be called upon to assume any liability
for the direct or indirect payment of the fee owed by DEVELOPER or of any
salary, wage or compensation of any person employed by ENGINEER.
B. At the time the building permit is issued, an administrative fee
equal to 25 percent of what would normally have been the plan check fee, had the
plans been checked by the CITY, will be charged and collected by the CITY. This
fee will be in addition to the building permit fee.
III. LIABILITY EXPOSURE AND COVERAGE
A. All officers, agents, employees, and subcontractors, and their
agents, officers and employees who are hired by or engaged by ENGINEER in the
performance of the building plan review, shall be deemed officers, agents, and
employees and subcontractors of ENGINEER only and CITY shall not be liable for
their acts or omissions nor responsible to them for anything whatsoever.
B. ENGINEER and DEVELOPER shall each separately indemnify and save
harmless CITY, its officers and its employees from and against any and all
damages to property or injuries to, or death of any person or
Exhibit F-1
<PAGE>
persons, including property and employees of CITY, and shall defend, save
harmless, and indemnify CITY, its officers and its employees from and against
any and all claims, demands, liabilities, suits, actions, proceedings or
judgments therefor, resulting from or arising out of their own negligent acts or
omissions or the negligent acts or omissions of their respective employees or
subcontractors; except that neither ENGINEER nor DEVELOPER shall hereby incur
any such obligation for the negligent acts or omissions of the other.
C. ENGINEER shall obtain and maintain the following insurance
coverage:
1. COMMERCIAL GENERAL LIABILITY coverage with policy limits of
not less than $1,000,000 combined single limit per
occurrence, with CITY as additional insured, and with an
endorsement that the insurance provided the CITY as
additional insured shall be deemed primary and
noncontributing with any other insurance of CITY.
2. PROFESSIONAL LIABILITY coverage for $ 1,000,000 with a
contractual liability provision sufficient to insure
Paragraph III.B. above.
3. WORKERS' COMPENSATION INSURANCE in statutory amount.
4. The general and professional liability insurance shall
provide continued coverage for at least 12 months following
completion of construction of the project and shall not be
cancelled, modified or reduced without first giving CITY
thirty (30) days written notice.
D. ENGINEER shall provide CITY certificates of insurance acceptable
to the City Attorney showing the above coverage and policy endorsements prior to
commencement of any plan check services.
IV. GENERAL CONDITIONS
A. The ENGINEER shall comply with all the provisions of the Worker's
Compensation Insurance and Safety Acts of the State of California, the
applicable provisions of Divisions 4 and 5 of the California Labor
Code, and all amendments thereto, and regulations adopted pursuant
thereto by the State Department of Labor and similar State or Federal
acts or laws applicable.
B. ENGINEER shall certify in a form and manner acceptable to CITY that
the plans he has checked comply with all applicable codes, ordinances,
and laws relating to the particular type of development proposed and
that permits may be issued for the construction of same.
C. If omissions or errors in the plans are discovered during the course
of construction, corrections shall be made at no cost to CITY, and all
work performed shall be required to comply with the codes and
ordinances of CITY prior to final building inspection.
D. DEVELOPER shall, prior to or concurrently with the building plan
review by ENGINEER, contact the Planning Division, Fire Marshal,
and/or Public Services Department of CITY, the Costa Mesa Sanitary
District and/or the Mesa Consolidated Water District to determine any
conditions or special requirements which may be administered by those
departments. Failure to do so may delay issuance of building permits.
E. The licensed architect, registered engineer, or other authorized
person, entity, or corporation who prepared or supervised preparation
of the project plans, specifications, and/or engineering calculations
being reviewed, shall not be associated in any way with ENGINEER.
V. RESPONSIBILITIES OF ENGINEER
ENGINEER shall review plans for compliance with pertinent CITY and State
regulations falling within the purview of the building official of the
CITY. More specifically, the services to be performed by ENGINEER shall
consist of but not be limited to:
PLAN CHECK
a. Classify the building and verify compliance for the following:
1) Occupancy group
2) Type of construction
3) Location on property
4) Floor Area
5) Height and number of stories
6) Occupant load
Exhibit F-2
<PAGE>
b. Verify compliance of the building with detailed occupancy requirements.
c. Verify compliance of the building with detailed type of construction
requirements.
d. Verify compliance of the building with exit requirements.
e. Verify compliance of the building with detailed Code regulations.
f. Verify compliance of building with engineering regulations and
requirements for materials of construction.
g. Verify compliance with California Title 24 by reviewing mechanical and
electrical plan schedules and work sheets for thermal insulation.
h. Verify compliance with California Title 25 and Section 13-144 of the
Costa Mesa Municipal Ordinances by reviewing mechanical, electrical, and
plumbing plans, details, calculations, and any required Acoustical Engineer's
report.
i. Provide the following:
1) Coordinate with City Engineering personnel for grades determination
2) Provide drainage review by CITY Ordinance
3) Check drainage flow "Q" calculations
j. Review plumbing, electrical, and heating drawings.
k. Provide for review and verification of all of the above items until all
corrections are made and all data are in compliance with all codes, ordinances,
and State and Federal Laws.
VI. CERTIFICATION
The following certification statement shall appear on each page of the
drawings submitted and shall be signed and dated by the registered
architect or ENGINEER:
ARCHITECT OR ENGINEER CERTIFICATION
I hereby certify that the work proposed to be done on these plans is in
conformance with all Codes and Ordinances of the City of Costa Mesa and further,
if omissions or errors are discovered, I understand that the work performed will
be required to comply with the Codes and Ordinances of the City of Costa Mesa
prior to final building inspection.
- ------------------------ -------------------- ---------------------------
Signature Date State License
VII. PERMIT ISSUANCE
Building permits shall be issued by CITY upon completion of all
requirements specified above and upon completion of all requirements of
any other affected department of CITY or other governmental agency.
VIII. ACKNOWLEDGEMENTS
DEVELOPER and ENGINEER acknowledge that they have read and understand the
above statement of conditions, requirements, and directions and agree to
perform accordingly. Furthermore, they understand that no building permits
shall be issued for any project until these requirements have been
satisfied, and they certify that no work has been undertaken by the
ENGINEER involving plan check services nor to submittal of the required
certificates of insurance and prior to approval of same by the Costa Mesa
City Attorney.
IX. SIGNATURES
A. The Director of Development Services or his designee is authorized to
execute this agreement on behalf of the City of Costa Mesa when the
parties meet the conditions listed herein.
B. The DEVELOPER is defined as the fee title property owner or the
tenant for which the improvements are being constructed. If the fee
title property owner or tenant is a corporation or general
partnership, an officer of the corporation or a general partner shall
execute this agreement.
Exhibit F-3
<PAGE>
C. If the ENGINEER is a corporation or general partnership, an officer of
the corporation or a general partner shall execute this agreement.
IN WITNESS WHEREOF the parties have signed below.
- ------------------------------------- ---------------------------------------
DEVELOPER ENGINEER
By By
----------------------------------- -------------------------------------
- ------------------------------------- ---------------------------------------
TITLE TITLE
(If Developer is a corporation, officer (If Engineer is a corporation, officer
of corporation must sign; if of corporation must sign; if
Partnership, general partner must sign) Partnership, general partner must sign)
- ------------------------------------- --------------------------------------
ADDRESS ADDRESS
- ------------------------------------- --------------------------------------
- ------------------------------------- --------------------------------------
TELEPHONE TELEPHONE
CITY OF COSTA MESA
By
---------------------------
Assistant Development
Services Director/Building
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
Exhibit F-4
<PAGE>
RULES AND REGULATIONS FOR SOUTH COAST PLAZA RETAIL CENTER
WHICH CONSTITUTE A PART OF THE LEASE
1. No tenant or its agents or employees shall loiter in the Enclosed
Mall areas or other common areas of the Center, nor shall they in any way
obstruct the sidewalks, entry passageways, driveways, entrances and exits to the
Center, and they shall use the same only as passageways to and from their
respective premises. Each tenant and its employees shall comply with all
regulations with respect to the common areas, including but not by way of
limitation, posted speed limits, directional markings and parking stall
markings. Landlord reserves the right to exclude or expel from the Center any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of the
rules and regulations of the Center.
2. No doors, windows, lights and skylights that reflect or admit
light into the common areas of the Center shall be covered or obstructed by any
tenant, and doors leading into the common areas (other than the Enclosed Mall)
from tenant premises shall not be left open by any tenant.
3. Water closets and urinals shall not be used for any purpose other
than those for which they were constructed and no rubbish, newspapers or other
substances of any kind shall be thrown into them. No tenant or such tenant's
agents and employees shall throw or discard cigar or cigarette butts or other
substances or litter of any kind in or about the Center, except in receptacles
placed therein for such purposes by Landlord or governmental authorities. All
garbage, including wet garbage, refuse and trash shall be placed by each tenant
in the receptacles provided by Landlord for that purpose. No tenant shall place
in any trash receptacle of the Center any material which cannot be disposed of
in the ordinary and customary manner of trash and garbage disposal. All garbage
and refuse disposal shall be made in accordance with directions issued from time
to time by Landlord.
4. All trash, refuse and waste materials shall be regularly removed
from the premises of each tenant of the Center, and until removal shall be
stored (a) in adequate containers, which such containers shall be located so as
not to be visible to the general public shopping in the Center, and (b) so as
not to constitute any health or fire hazard or nuisance to any occupant of the
Center.
5. No tenant shall place or allow anything to be placed against or
near any glass doors or windows which may, in Landlord's opinion, appear
unsightly from outside the Premises.
6. No tenant shall do anything in any premises, or bring or keep
anything therein, which will in any way increase or tend to increase the risk of
fire or the rate of fire insurance or which shall conflict with applicable laws,
rules or regulations established by any governmental body or official having
jurisdiction, the regulations of the fire department or the provisions or
requirements of any insurance policy on such premises or any part thereof. No
tenant shall use any machinery in its premises, even though the installation may
have been originally permitted, which may cause any unreasonable noise or jar,
or tremor to the floors or walls, or which by its weight might injure the walls
or floors of such premises or any other portion of the Center. No tenant shall
use any method of heating or air conditioning other than that supplied by
Landlord.
7. No tenant shall place a load upon any floor which exceeds the load
per square foot which such floor was designed to carry and which is allowed by
law. Landlord shall have the right to prescribe the weight, size and position
of all equipment, materials, furniture and other property brought into any
premises. Heavy objects shall stand on such platforms as are determined by
Landlord to be necessary to properly distribute the weight, and each tenant
shall pay the cost of any structural bracing required by Landlord to accommodate
the same. Business machines and mechanical equipment belonging to any tenant
which cause noise or vibration that may be transmitted to the structure of any
tenant's store or to any space therein to such a degree as to be objectionable
to Landlord or to any tenants shall be placed and maintained by such tenant, at
such tenant's expense, on vibration elimination or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment in or
out of any tenant's store must be acceptable to Landlord. Landlord shall not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to any building or the common areas of the Center
by maintaining or moving such equipment or other property shall be repaired at
the expense of the tenant causing the same.
8. No tenant or its agents or employees shall make or permit any
loud, unusual or improper noises in the Center, nor interfere in any way with
other tenants or those having business with them, nor bring into nor keep within
the Center any animal or bird, or any bicycle or other vehicle, except such
vehicles as tenants are permitted to park in the Center parking lot, and Tenant
and its agents and employees shall park only in the areas designated from time
to time for employee parking generally.
9. No tenant shall install any radio or television antenna,
loudspeaker, satellite dish antenna or other device on the roof or exterior
walls of such tenant's store. No tenant shall interfere with radio or
television broadcasting or reception from or in the Center or elsewhere. No
tenant shall install, maintain or operate upon any premises or in any common
areas under the exclusive control of Landlord any vending machines or video
games without Landlord's prior written consent. If any tenant requires
telegraphic, telephonic, burglar alarm or similar services, it shall first
obtain, and comply with, Landlord's instructions concerning their installation.
The location of such equipment and all call boxes shall be subject to the prior
written approval of Landlord. No tenant shall engage in the sale of tickets or
coupons for any lottery or other games of chance.
10. No portion of the Center shall be used for lodging purposes.
11. All freight must be moved into, within and out of tenant premises
only during such hours and according to such regulations as may be established
from time to time by the General Manager of the Center. No person
Exhibit G-1
<PAGE>
shall use any utility area, truck and trash facility or other area reserved for
use in connection with the conduct of business, except for the specific purposes
for which intended.
12. Tenants are required to observe all fire and security regulations
issued by Landlord and to comply with instructions and/or directions of the
security personnel for the protection of the Center. Tenant shall provide
Landlord with the name and telephone number of a designated employee to
represent Tenant in all matters pertaining to fire and security regulations.
Access by any tenant to such tenant's premises or the Center before or after
hours of operation of the Center shall be subject to clearance by the security
personnel of the Center and to compliance with such procedures as may be imposed
by such personnel, including presentation of identification satisfactory to such
personnel.
13. No tenant and no employee or invitee of any tenant shall go upon
the roof of the Center without the prior approval of Landlord.
14. No person shall use any roadway, walkway or mall, except as a
means of egress from or ingress to any store and automobile parking area within
the Center, or adjacent public streets. Such use shall be in an orderly manner,
in accordance with the directional or other signs or guides. Roadways shall not
be used at a speed in excess of twenty (20) miles per hour and shall not be used
for parking or stopping, except for the immediate loading or unloading of
passengers. No walkway or the Enclosed Mall shall be used for other than
pedestrian travel.
15. No person shall use any automobile parking area except for the
parking of motor vehicles during the period of time such person or the occupants
of such vehicle are customers or business invitees of the retail, service and
restaurant establishments within the Center. All motor vehicles shall be parked
in an orderly manner within the painted lines defining the individual parking
places. During peak periods of business activity, limitations may be imposed as
to the length of time for parking use. Such limitations may be made in
specified areas.
16. No person, without the prior written consent of Landlord, shall
in or on any part of the common area:
(a) Vend, peddle or solicit orders for sale or distribution of any
merchandise, device, service, periodical, book, pamphlet or other matter
whatsoever.
(b) Exhibit any sign, placard, banner, notice or other written
material.
(c) Distribute any circular, booklet, handbill, placard or other
material.
(d) Solicit membership in any organization, group or association or
any contribution for any purpose.
(e) Parade, rally, patrol, picket, demonstrate or engage in any
conduct that might tend to interfere with or impede the use of any of the common
areas by any permittee, create a disturbance, attract attention or harass,
annoy, disparage or be detrimental to the interest of any of the retail, service
or restaurant establishments within the Center.
(f) Use any common area for any purpose when none of the
establishments within the Center is open for business or employment.
(g) Throw, discard or deposit any paper, glass or extraneous matter of
any kind, except in designated receptacles, or create litter or hazards of any
kind.
(h) Use any sound-making device of any kind or create or produce in
any manner noise or sound that is annoying, unpleasant, or distasteful to
occupants or permittees of the Center.
(i) Deface, damage or demolish any sign, light standard or fixture,
landscaping material or other improvement within the Center, or the property of
customers, business invitees or employees situated within the Center.
Landlord's prior written approval with respect to any of the foregoing
activities may be given or withheld in Landlord's sole discretion.
17. Smoking or carrying lighted cigars, cigarettes or pipes in the
Enclosed Mall or in any other enclosed common area of the Center is strictly
forbidden.
18. The requirements of any tenant will be attended to only upon
written application to Landlord at the Management Offices of the Center, and
employees of Landlord shall not perform any work or do anything outside of their
regular duties except upon instructions from Landlord.
19. Landlord may waive any one or more of these rules for the benefit
of any particular tenant or tenants, but no such waiver by Landlord shall be
construed as a waiver of such rules in favor of any other tenant or tenants, nor
prevent Landlord from thereafter enforcing any such rules against any or all of
the tenants of the Center. No waiver of any rule or regulation by Landlord
shall be effective unless in writing and signed by Landlord.
20. Landlord reserves the right to close and keep locked any and all
entrances and exit doors of the Center and gates or doors closing the parking
areas thereof during such hours as Landlord may deem to be advisable for the
adequate protection of the Center.
21. Landlord reserves the right, at any time, to change or rescind
any one or more of these rules and regulations or to make such other and further
reasonable rules and regulations as in Landlord's judgment may from time to time
be necessary for the management, safety, care and cleanliness of the Center, for
the preservation of good order therein and for the convenience of tenants of and
visitors to the Center. Any such amendments, deletions or additions to these
rules and regulations shall be effective immediately upon delivery of written
notice thereof to tenants.
22. Each tenant shall abide by any additional rules or regulations
which are ordered or requested by any governmental or military authority. Each
tenant shall be responsible for the observance of these rules and any such rules
by its employees, agents, clients, customers, invitees and guests.
Exhibit G-2
<PAGE>
23. Landlord shall not be responsible to any tenant or to any other
person for the non-observance or violation of these rules and regulations by any
other tenant or other person.
24. A copy of these rules and regulations shall be attached to and
form a part of each tenant lease at the Center. Each tenant who executes a
lease of space at the Center shall be deemed to have read these rules and
regulations and to have agreed to abide by them as a condition to its occupancy
of space at the Center. In the event of any conflict between these rules and
regulations, or any amendments or additions thereto, and the provisions of any
tenant's lease, such lease provisions shall control.
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
Exhibit G-3
<PAGE>
KNOWN LOCATIONS OF ASBESTOS-BEARING
CONSTRUCTION MATERIALS
Pursuant to the survey performed by The Pickering Firm, asbestos is
predominately located in fire-proofing material sprayed on the structural steel
supporting the roofs of the buildings comprising Phase 1. Such asbestos-bearing
fire-proofing material has been located on the structural steel supporting the
roof of the Enclosed Mall of Phase 1, and has also been found on the structural
steel supporting the roofs of tenant premises on the second level of Phase 1.
In addition, asbestos has been found in the fire-proofing material on the
structural steel supporting the roof of the service corridors on the second
level of Phase 1 and in the fire-proofing material on the steel studs in the
ceilings of a few service corridors and tenant premises on the first level of
Phase 1. Further, products containing an asbestos ingredient have been located
in a few places in Phase 1 in the concrete slab fireproofing, spray applied
acoustical materials, ceiling tiles, floor tiles and the adhesives used for
floor and wall coverings. Finally, products containing an asbestos ingredient
have been located in Phase 1 and elsewhere in the Center in tenant installed
floor tiles, demising walls and in the adhesives used for wall and floor
coverings.
With respect to asbestos-bearing fire-proofing material on the
structural steel of the roof of the Enclosed Mall in Phase 1, Landlord completed
removal of all such material during 1989. With respect to Landlord installed
asbestos-bearing materials within tenant premises and service corridors in Phase
1 and elsewhere in the Center, Landlord is abating such materials as and when
such areas become available to Landlord to conduct such abatement.
THE FOREGOING IS SIMPLY A SUMMARY OF THE LOCATIONS KNOWN TO LANDLORD
IN WHICH ASBESTOS BEARING CONSTRUCTION MATERIALS ARE PRESENT AT THE CENTER. A
MORE COMPLETE DISCUSSION OF SUCH SUBJECT IS SET FORTH IN THE PICKERING REPORT,
AND A COPY OF SUCH REPORT MAY BE OBTAINED FROM THE CENTER'S DIRECTOR OF
OPERATIONS AT THE MANAGEMENT OFFICES OF THE CENTER. IN ADDITION, THE FOREGOING
SUMMARY DOES NOT ADDRESS ASBESTOS WHICH MAY BE IN CONSTRUCTION MATERIALS
INSTALLED IN TENANT OWNED BUILDINGS AT THE CENTER OR WHICH MAY BE PRESENT IN
CONSTRUCTION MATERIALS INSTALLED BY TENANTS WITHIN THEIR PREMISES ELSEWHERE IN
THE CENTER.
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
Exhibit H
<PAGE>
LEASE ESTOPPEL CERTIFICATE
--------------------------
Landlord: SOUTH COAST PLAZA
- --------
Tenant: ST. JOHN KNITS, INC.
- ------
Tenant Trade Name: ST. JOHN KNITS
- -----------------
Premises: Suites 2533 and 3011
- --------
Floor Area: 15,384 Sq. Ft. Lease Date: June 5, 1998
- ----------
The undersigned Tenant of the above-referenced lease (the "Lease") hereby
ratifies the Lease and certifies to New York State Teachers' Retirement System (
referred to as "Lender") as the beneficiary of a deed of trust encumbering the
Real Property of which the premises demised under the Lease (the "Premises") is
a part, as follows:
1. That the term of the Lease commenced on _____________, ____ and the
Tenant is in full and complete possession of the Premises demised
under the Lease and has commenced full occupancy and use of the
Premises, such possession having been delivered by the original
landlord and having been accepted by the Tenant.
2. That the Lease calls for, and the Tenant is currently paying monthly
installments of, Minimum Rent of $_____________ and of additional rent
of $_______________. Minimum Rent and Additional Rent commenced to
accrue on the _________ day of _____________, ____. The Lease
currently provides for percentage rent in the amount of 6% of annual
sales over $15,384,000.
3. That no advance rental or other payment has been made in connection
with the Lease, except rental for the current month, there is no "free
rent" or other concession under the remaining term of the Lease,
except as expressly set forth in the Lease, and the rent has been paid
to and including ________________, ____.
4. That a security deposit in the amount $19,993.34 is being held by
Landlord, which amount is not subject to any set-off or reduction or
to any increase for interest or other credit due to Tenant.
5. That all obligations and conditions under said Lease to be performed
to date by Landlord or Tenant have been satisfied, free of defenses
and set-offs, including all construction work in the Premises.
6. That the Lease attached hereto as Exhibit "A" is a true and correct
copy of the Lease and all amendments, modifications and supplements
thereto. The Lease is a valid lease and in full force and effect and
represents the entire agreement between the Tenant and the Landlord;
that there is no existing default on the part of the Landlord or the
Tenant in any of the terms and conditions thereof and no event has
occurred which, with the passing of time or giving of notice or both,
would constitute an event of default; and that said Lease has:
(initial one)
[X] not been amended, modified, supplemented, extended, renewed or
---
assigned.
[_] been amended, modified, supplemented, extended, renewed or
assigned only as provided in the attached Exhibit "B."
7. That the Lease provides for a primary term commencing
___________________ and expires on the 31st day of January, 2014 and
that:
(initial one)
[X] neither the Lease nor any of the documents listed above in
Paragraph 6, (if any), contain an option for any additional term
or terms.
[_] the Lease and/or the documents listed above in Paragraph 6
contain an option for _____________ additional term(s) of
_______________ lease year(s) and (each) at a rent to be
determined as follows:
8. That Landlord, except as provided in the Lease or an amendment
included in Exhibit "B," has not rebated, reduced or waived any
amounts due from Tenant under the Lease, either orally or in writing,
nor has Landlord, except as expressly provided in the Lease or an
amendment included in Exhibit "B," provided financing for, made loans
or advances to, or invested in the business of Tenant.
9. That, to the best of Tenant's knowledge, there is no apparent or
likely contamination of the Real Property or the Premises by hazardous
materials, and Tenant does not use, nor has Tenant disposed of,
hazardous materials in violation of environmental laws on the Real
Property or the Premises.
10. That there are no actions, voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States or any state
thereof.
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
Exhibit I-1
<PAGE>
11. That this certification is made knowing that Lender is relying upon
the representations herein made.
Date ______________________, ____ ST. JOHN KNITS, INC., a California
corporation
By
------------------------------------
Typed Name:
---------------------------
Title:
--------------------------------
Attest:
-------------------------------
Typed Name:
---------------------------
Title:
--------------------------------
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
Exhibit I-2
<PAGE>
_________________________________
SOUTH COAST PLAZA
_________________________________
P.O. BOX 1486
COSTA MESA, CALIFORNIA 92626
SALES REPORT
Name of Tenant _________________________________________________________________
Sales for the Period from ____________ to _____________ (exclusive of sales tax)
Amount _______________________________
Submitted by ___________________________________________________________________
(signature and title)
Date _________________________________
PLEASE MAIL THIS REPORT WITH
PERCENTAGE RENT (IF APPLICABLE) TO:
SOUTH COAST PLAZA
P.O. BOX 1486
COSTA MESA, CALIFORNIA
92626
EXHIBIT J
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
<PAGE>
therefor first approved by the other Parties hereto, which approvals shall not
be unreasonably withheld. Provided, however, that the foregoing obligations
shall extend only to such construction as is required by the failure of a Party
to rebuild its Store, and shall not extend to reconstruction of any portion of
the Enclosed Mall occasioned by damage to or destruction of all or a portion of
the Enclosed Mall. Nothing herein contained shall be deemed to abrogate or
diminish the obligations of May set forth in paragraph 11.
10. INDEMNIFICATION AND PUBLIC LIABILITY INSURANCE
----------------------------------------------
(a) Segerstrom, Sears, May, Federated and Saks each covenants and agrees
to indemnify and hold harmless the other Parties respectively, from and against
any and all claims, costs, expenses (including attorneys' fees and/or court
costs) and liabilities arising from or in respect of:
(i) The death of or any accident, injury, loss or damage whatsoever
caused to any Person or to the property of any Person, as shall occur in or on
the Tract of such indemnifying Party and, as to Segerstrom (and to the extent
provided in the last unnumbered paragraph of paragraph 3(k), Sears), Parking
Structure 3, during the period from the date of this Agreement to and including
the Termination Date (except to the extent such claims, costs, expenses and
liabilities shall arise from or in respect of negligence or fault of the Party
or Parties so indemnified, or their respective agents, employees, servants,
tenants, or concessionaires);
(ii) Any act or omission whatsoever, to the extent such act or
omission involves negligence, of the indemnifying Party and/or its respective
agents, servants, employees and/or tenants, or subtenants and/or the agents,
servants or employees of such subtenants with respect to Tracts of such other
Parties respectively, and any part or parts thereof and any improvement or
improvements located thereon (including, to the extent provided in paragraph
3(k), Segerstrom and Sears with respect to Parking Structure 3); and
(iii) Any activity undertaken by any such indemnifying Party pursuant
to the provisions of paragraphs 2(b), 2(c), 3(h), 3(l), 3(m), 7, 8 and 9 hereof.
(b) Each Party shall at all times prior to the Termination Date maintain
in force and effect the following insurance covering its Tract and all
Improvements located thereon and, in the case of Segerstrom, Parking Structure
3:
(i) Comprehensive public liability insurance in the amount of at
least Two Million Dollars ($2,000,000) for each occurrence, non-aggregate,
resulting in personal injury to or death of one Person, and consequential
damages arising therefrom, and in the amount of at least Five Million Dollars
($5,000,000) for each occurrence, non-aggregate resulting in personal injury to
or the death of more than one Person and consequential damages arising
therefrom;
(ii) Comprehensive property damage liability insurance in the amount
of at least One Million Dollars ($1,000,000) per occurrence, non-aggregate; and
(iii) Insurance, in the same liability amounts set forth in causes (i)
and (ii) above, covering the indemnification obligations of each Party to the
other Parties contained in clauses (i),
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
10(b) 38
EXHIBIT K
<PAGE>
(ii) and (iii) of paragraph 10(a) above (i.e., contractual liability insurance).
(c) All of the insurance required to be maintained by the Parties pursuant
to subparagraph (b) of this paragraph 10 shall:
(i) Be effected pursuant to a valid and enforceable policy or
policies or contract or contracts of insurance issued by an insurer or insurers
of recognized responsibility as to which policies all premiums thereon are paid
in full and all other obligations of the policyholder thereunder are fully
performed; provided, however, that nothing contained in this section (i) shall
be deemed to prohibit the obtaining of policies or contracts of insurance which
may cover any other property or properties real and/or personal of any
Person(s), including Segerstrom, Sears, May, Federated or Saks as the case may
be, in addition to the property covered pursuant to subparagraph (b) of this
paragraph 10, and any other liabilities of any Person(s), including Segerstrom,
Sears, May, Federated or Saks, as the case may be, in addition to the
liabilities covered pursuant to subparagraph (b) of this paragraph 10, provided
that there shall be allocation of premiums, reserves and coverage sufficient to
satisfy all requirements of this paragraph 10 with respect to the Tract so
insured;
(ii) Name the other Parties, respectively, as additional insureds;
(iii) Contain a severability of interests endorsement; and
(iv) Contain an agreement by such insurer or insurers that it shall
give at least thirty (30) days' prior written notice to the other Parties (with
respect to the property and liability insurance required to be carried
hereunder) in the event of (A) any change in the scope or coverage provided by
such insurance, (B) cancellation or non-renewal by the carrier of such insurance
or (C) any reduction in the liability amount provided below the amounts of
coverage required hereunder.
(d) Each Party shall, on request and promptly after the date of receipt of
the written request therefor by any Party, furnish each of the other Parties
with a certificate or certificates (with an endorsement of premium payment
thereon) evidencing all such insurance coverage (and any renewals thereof)
required to be maintained by such Party pursuant to subparagraph (b) of this
paragraph 10 and compliance with the requirements contained in clauses (ii)
through (iv) of paragraph 10(c) above.
(e) Notwithstanding anything contained to the contrary in subparagraphs
(b), (c) and (d) of this paragraph 10, the insurance required under subparagraph
(b) may be carried under any plan of self-insurance from time to time maintained
by Segerstrom, Sears, May, Federated and Saks, respectively (but not by any
successor or assignee of Segerstrom, Sears, May, Federated or Saks other than a
wholly-owned subsidiary or a successor by merger, consolidation or transfer of
substantially all assets, provided that such successor or subsidiary first
covenants, in writing, to be bound by the insurance and indemnity obligations of
the Party whose insurance is so provided, for the benefit of all other Parties),
provided that the Party so self-insuring has, and continues to maintain,
adequate reserves or resources for the risks so self-insured against and the
Party so self-insuring furnishes to the other Parties hereto reasonable evidence
of the adequacy of such reserves or resources. Any Party with a
LANDLORD'S TENANT'S
INITIALS INITIALS
---------- --------
J.E.S. DD
H.T.S.
10(e) 39
EXHIBIT K
<PAGE>
EXHIBIT 10.2
- ----------------------------------PURCHASE ORDER--------------------------------
PAGE ______ OF _________
[LOGO OF ST. JOHN] DIVISION: Novita Yarns
-------------------
SEND INVOICE TO: PURCHASE ORDER: -M001044
2722 Michelson Drive, ----
Irvine, California 92612 TERMS: 1.5% 30, NET 60
Phone (949) 863-1171 -------------------
Resale Permit No. 13-111139
D-U-N-S 00-836-8540 HOW SHIPPED: Cranston
------------------
- -------------------------------------------------------------------------------
DO NOT CANCEL IF NOT
DELIVER BEFORE:_____________ RCVD BY:________________ DATE: July 29, 1998
------------------
- -------------------------------------------------------------------------------
VENDOR NO: 4008
______
NAME: Kent Manufacturing SHIP TO: Novita Yarns
_______________________ _____________________________
ADDRESS: P.O. Box 67 ADDRESS: 17422 Derian Ave.
_______________________ _____________________________
_______________________ _____________________________
CITY: Pickens, SC CITY: Irvine, CA
_______________________ _____________________________
ZIP: 29671 ZIP: 1742 92614
_______________________ _____________________________
CONTACT: Bill Kenny CONTACT: Mr. Konrad Ried
<TABLE>
<C> <C> <C> <C> <S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
LN QTY UOM ITEM # DESCRIPTION DATE/QTY UNIT EXT
RECEIVED COST AMOUNT
- -------------------------------------------------------------------------------------------------------------
1 824,588 LBS 100% 64's Australian wool natural $7.67
yarn on cones. Yarn count 1/21
NOTE: P.O.#M001044 is replacing contract# 2902 and, M001004.
Delivery: (a) Weekly shipments as per St. John request
(b) Yarn count as per St. John request
Price structure for yarncounts other than 1/21
1/19 $7.55
1/19 $7.45 LOW TWIST
1/30 $8.21
1/30 $8.05 LOW TWIST
1/36 $8.57
- -------------------------------------------------------------------------------------------------------------
TOTAL:
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
TERMS AND CONDITIONS
1. St. John Knits shall have the right to refuse delivery of any
merchandise which is either received (i) prior to the Do Not REQUESTED BY:
Deliver Before Date or (ii) after the Cancel If Not Received ---------------------------------------
By Date. (SIGNATURE)
REQUESTOR NAME: Mr. Konrad Ried
2. St. John Knits must be notified before backorders are shipped. -------------------------------------
(PLEASE PRINT)
3. NO COD's ALLOWED.
4. All invoices, packing lists and bills of lading must show our
complete Purchase Order Number, Date Shipped and St. John Knits AUTHORIZED BY: /s/ Bob Gray
Contact. --------------------------------------
(SIGNATURE)
This Purchase Order is subject to the terms and conditions printed
on the front and reverse side of this form. Terms different from or
additional to those stated herein which are included in any AUTHORIZOR NAME: Bob Gray
document or form transmitted on behalf of vendor are objected ------------------------------------
to and will bind us only if our written consent is obtained. (PLEASE PRINT)
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS.
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
ACCOUNTING COPY
<PAGE>
EXHIBIT 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This Amended and Restated Employment Agreement ("Agreement"), dated as
of July 13, 1998, is by and between St. John Knits, Inc., a California
corporation ("Company"), and Robert E. Gray, an individual ("Executive"), and
amends and restates the terms of that certain Employment Agreement, dated as of
June 1, 1995, between the Company and Executive and supersedes that certain
First Amendment to Employment Agreement, executed as of May 2, 1998, between the
Company and Executive. In consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows.
ARTICLE I
EMPLOYMENT
----------
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
I.1 Employment. The Company hereby employs Executive, and Executive
----------
agrees to serve as the Company's Chairman of the Board and Chief Executive
Officer during the term of this Agreement, and as such shall assume, subject to
the powers of the Company's Board of Directors, general and active supervision
and management over the business of the Company and over its several officers,
assistants, agents and employees. Executive agrees to devote substantially his
full business time and attention and best efforts to the affairs of the Company
during the term of this Agreement.
I.2 Term. The employment of Executive by the Company under the terms
----
and conditions of this Agreement will commence on June 1, 1995 and will continue
for a period of five (5) years unless renewed or terminated sooner in accordance
with the provisions hereof.
I.3 Termination of Prior Agreement. Immediately upon the
------------------------------
commencement of Executive's employment pursuant to the terms of this Agreement,
that certain Employment Agreement by and between Executive and the Company,
dated as of February 1, 1993, as amended, shall terminate and shall be of no
further force or effect.
ARTICLE II
COMPENSATION
------------
II.1 Annual Salary. During the employment of Executive, the Company
-------------
shall pay to Executive a base salary at the annual rate of $975,000 (the "Base
Salary"). The Base Salary shall be payable in substantially equal monthly
installments.
1
<PAGE>
II.2 Deferred Compensation. During the employment of Executive, the
---------------------
Company shall deposit on the first day of each month $41,667 of deferred
compensation payable to the Executive into an irrevocable "rabbi" trust (the
"Trust"). The Trust's assets shall be subject to the claims of the Company's
general creditors only in the event of the Company's insolvency or bankruptcy.
The Trust's assets, including the Company's contributions and any earnings
thereon (collectively, the "Deferred Compensation") shall be invested, pending
distribution, as directed by Executive. The Deferred Compensation shall be
distributed to Executive, or his named beneficiaries, in annual installments
beginning on the earlier of (i) June 1, 2000 or (ii) thirty (30) days following
the termination of Executive's employment, and on the first day of each fiscal
year of the Company thereafter until all Deferred Compensation has been
distributed. The dollar amount of each annual installment shall equal the
maximum amount which may be distributed to the Executive for such fiscal year
without exceeding the $1,000,000 deductibility cap on executive compensation
under Section 162(m) of the Internal Revenue Code; provided, however, that if
Executive is terminated by the Company without "Cause," or Executive terminates
his employment for "Good Reason," each as hereinafter defined, then the entire
balance of Deferred Compensation shall be distributed to Executive within thirty
(30) days following the termination of Executive's employment.
II.3 Reimbursement of Expenses. Executive shall be entitled to
-------------------------
receive prompt reimbursement of all reasonable expenses incurred by Executive in
performing services hereunder, including all expenses of travel, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
II.4 Automobile Allowance. The Company shall pay directly, or
--------------------
reimburse Executive for, all reasonable costs and expenses incurred by Executive
in connection with the operation and maintenance of an automobile (i.e. car
insurance, car license and general upkeep).
II.5 Benefits. Executive shall be entitled to participate in and be
--------
covered by all health, insurance, pension and other employee plans and benefits
currently established for the employees of the Company (collectively referred to
as the "Company Benefit Plans") on at least the same terms as other employees of
the Company, subject to meeting applicable eligibility requirements.
II.6 Vacations and Holidays. During Executive's employment with the
----------------------
Company, Executive shall be entitled to an annual vacation leave of six (6)
weeks at full pay, or such greater vacation benefits as may be provided for by
the Company's vacation policies applicable to senior executives. Executive
shall be entitled to such holidays as are established by the Company for all
employees.
II.7 Secretarial Services and Office. During the period June 1, 1995
-------------------------------
through May 31, 2002, the Company shall provide Executive with his existing
office space at 17422 Derian Avenue, Irvine, California, or, if the lease for
such office space terminates and is not renewed, with equivalent office space
acceptable to Executive. In addition, during the period
2
<PAGE>
June 1, 1995 through May 31, 2002, the Company shall also provide Executive with
the full-time executive secretarial services of Marianne Wunderlich, or such
other individual as Executive shall approve in his sole discretion.
II.8 Aircraft. During Executive's employment with the Company,
--------
Executive shall be entitled to use the Company's leased aircraft as he shall
reasonably determine is necessary in fulfilling his duties hereunder. In
addition, Executive shall be entitled to charter the aircraft for his personal
use, but shall reimburse the Company for the actual cost of such charter.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
---------------------------------
III.1 Confidentiality. Executive will not during Executive's
---------------
employment by the Company or thereafter at any time disclose, directly or
indirectly, to any person or entity or use for Executive's own benefit any trade
secrets or confidential information relating to the Company's business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company or any of its clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company.
III.2 Return of Confidential Material. Executive shall promptly
-------------------------------
deliver to the Company on termination of Executive's employment with the
Company, whether or not for Cause and whatever the reason, or at any time the
Company may so request, all memoranda, notes, records, reports, manuals,
drawings, blueprints, Confidential Information and any other documents of a
confidential nature belonging to the Company, including all copies of such
materials which Executive may then possess or have under Executive's control.
Upon termination of Executive's employment by the Company, Executive shall not
take any document, data, or other material of any nature containing or
pertaining to the proprietary information of the Company.
III.3 Prohibition on Solicitation of Customers. During the term of
----------------------------------------
Executive's employment with the Company and for a period of one (1) year
thereafter Executive shall not, directly or indirectly, either for Executive or
for any other person or entity, solicit any person or entity to terminate such
person's or entity's contractual and/or business relationship with the Company,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship. None of the foregoing shall be deemed a waiver
of any and all rights and remedies the Company may have under applicable law.
III.4 Prohibition on Solicitation of Employees, Agents or Independent
---------------------------------------------------------------
Contractors After Termination. During the term of Executive's employment with
- -----------------------------
the Company and for a period of one (1) year following the termination of
Executive's employment with the Company, Executive will not solicit any of the
employees, agents, or independent contractors of
3
<PAGE>
the Company to leave the employ of the Company for a competitive company or
business. However, Executive may solicit any employee, agent or independent
contractor who voluntarily terminates his or her employment with the Company
after a period of 120 days have elapsed since the termination date of such
employee, agent or independent contractor. None of the foregoing shall be deemed
a waiver of any and all rights and remedies the Company may have under
applicable law.
III.5 Right to Injunctive and Equitable Relief. Executive's
----------------------------------------
obligations not to disclose or use Confidential Information and to refrain from
the solicitations described in this Article III are of a special and unique
character which gives them a peculiar value. The Company cannot be reasonably
or adequately compensated for damages in an action at law in the event Executive
breaches such obligations. Therefore, Executive expressly agrees that the
Company shall be entitled to injunctive and other equitable relief without bond
or other security in the event of such breach in addition to any other rights or
remedies which the Company may possess or be entitled to pursue. Furthermore,
the obligations of Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or Confidential Information.
III.6 Survival of Obligations. Executive agrees that the terms of
-----------------------
this Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
ARTICLE IV
TERMINATION
-----------
IV.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
(a) Cause. "Cause" shall include the following:
-----
(i) personal dishonesty or willful misconduct by Executive;
(ii) a breach of Executive's fiduciary duties to the Company
which involves personal profit or benefit to Executive;
(iii) willful violation and conviction of any law, rule or
regulation (other than traffic violations or similar offenses) or of
any final cease and desist order issued by any financial institution
regulatory authority against the Company; or
(iv) a material breach of this Agreement by Executive.
4
<PAGE>
(b) Good Reason. "Good Reason" shall mean voluntary termination
-----------
as a result of:
(i) the assignment to Executive of duties inconsistent with
the position and status of Executive as set forth in this Agreement
without Executive's prior written consent;
(ii) a substantial alteration in the nature, status or
prestige of Executive's responsibilities or a change in Executive's
title or reporting level from that set forth in this Agreement;
(iii) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles from
the location of such offices or businesses as of the date of this
Agreement;
(iv) a reduction by the Company of Executive's Base Salary
or Deferred Compensation;
(v) a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume and perform
this Agreement; or
(vi) an occurrence of a Change of Control Event. A "Change
of Control Event" shall mean and shall be deemed to have taken place
if any person or entity or group of affiliated persons or entities,
including a group which is deemed a "person" by Section 13(d)(3) of
the Securities Exchange Act of 1934, after the effective date of this
Agreement, acquires in one or more transactions ownership of 25% or
more of the outstanding shares of equity entitled to vote in the
election of directors of the Company without first receiving the
approval of the Company's then existing Board of Directors. As used
herein, "ownership" means beneficial or record ownership, directly or
indirectly, other than (a) by a person owning such shares merely of
record (such as a member of a securities exchange, a nominee, or a
securities depository system, (b) by a person as a bona fide pledgee
of shares prior to a default and determination to exercise powers as
an owner of the shares, or (c) by a person who is not required to file
statements on Schedule 13D by virtue of Rule 13d-1(b) of the
Securities and Exchange Commission under the Securities Exchange Act
of 1934. Without limitation, the right to acquire beneficial or
record ownership shall not of itself constitute ownership of shares.
(c) Disability. "Disability" shall mean a physical or mental
----------
incapacity as a result of which Executive becomes unable to continue the
proper performance of his duties hereunder (reasonable absences because of
sickness for up to two (2) consecutive months excepted; provided, however,
that any new period of incapacity or absences shall be deemed to be part of
a prior period of incapacity or absences if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity or
5
<PAGE>
absence and the incapacity or absence is determined by the Company's Board
of Directors, in good faith, to be related to the prior incapacity or
absence.) A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and
Executive or in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
and the two (2) doctors so nominated shall select a third doctor, who shall
make the determination as to Disability.
IV.2 Termination by Company. The Company may terminate Executive's
----------------------
employment hereunder immediately for Cause. Subject to the other provisions
contained in this Agreement, the Company may terminate this Agreement for any
reason other than Cause upon thirty (30) days' written notice to Executive. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.3 Termination by Executive. Executive may terminate his
------------------------
employment hereunder upon thirty (30) days' written notice to the Company. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.4 Death or Disability of Executive. Executive's employment
--------------------------------
hereunder shall terminate immediately upon the death or Disability of Executive.
IV.5 Severance Benefits Received Upon Termination.
--------------------------------------------
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement pursuant to Section 4.3 other
than for Good Reason, then the Company shall pay Executive his Base Salary
through the Effective Date of such termination plus credit for any vacation
earned but not taken and the Deferred Compensation held in the Trust on the
Effective Date of termination shall be distributed as provided in Section
2.2. The Company shall thereafter have no further obligations to Executive
under this Agreement.
(b) If Executive's employment is terminated by the Company
without Cause, or Executive terminates this Agreement for Good Reason, then
the Company shall provide Executive:
(i) a lump sum payment within thirty (30) days of the
Effective Date equal to Executive's then Base Salary through May 31,
2000;
(ii) a lump sum payment within thirty (30) days of the
Effective Date equal to all remaining deferred compensation payments
called for pursuant to Section 2.2 hereof through May 31, 2000;
6
<PAGE>
(iii) distribution of all Deferred Compensation to
Executive as provided in Section 2.2; and
(iv) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period of eighteen
(18) months, subject to any employee contribution provisions as
defined in the Company Benefit Plans. Subsequent health insurance
benefits will be in accordance with COBRA.
(c) If Executive's employment is terminated by the Company as a
result of Disability, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period of eighteen (18) months, said sum to be
paid monthly in equal installments at the times salary payments are
usually made;
(ii) continuation of Company Deferred Compensation
contributions to the Trust for a period of eighteen (18) months, and
distribution thereof to Executive as provided in Section 2.2; and
(iii) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period of one month
for each full year Executive has been employed by the Company up to a
maximum of eighteen (18) months, subject to any employee contribution
provisions as defined in the Company Benefit Plans. Subsequent health
insurance benefits will be in accordance with COBRA.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall provide Executive's spouse or
estate health insurance coverage as then in effect for Executive, his
spouse and dependent children for a period of six (6) months, subject to
any employee contribution provisions as defined in the Company Benefit
Plans and shall distribute the Deferred Compensation held in the Trust at
the time of Death to Executive's beneficiaries as provided in Section 2.2.
Health insurance benefits subsequent to the salary continuation period will
be in accordance with COBRA.
(e) In the event Executive's employment is terminated for Good
Reason pursuant to either Sections 4.1(b)(v) or 4.1(b)(vi), then in
addition to those payments required by Section 4.5(b) above, the Company
shall also provide to Executive a lump sum payment within thirty (30) days
of the Effective Date equal to twice Executive's Base Salary, or
$1,950,000.
(f) This Section 4.5(f) is intended to put Executive in the same
economic position as Executive would have had no Section 4999 Taxes and
Expenses (as defined below) been imposed upon or incurred as a result of
any payment, distribution, benefit or transfer (each a "Payment" and
collectively the "Payments") made pursuant to the terms of this Agreement
or otherwise. In the event it is determined that any Payments
7
<PAGE>
to or for the benefit of Executive is or was subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended,
any successor provision, or any comparable provision of state or local
income tax law, or any interest, penalties, additions to tax, or costs are
or were incurred by Executive with respect to any such excise taxes (such
taxes, penalties, interest, additions to tax and costs (including
professional fees) are hereinafter referred to as "Section 4999 Taxes and
Expenses"), then within ten (10) days after such determination, the Company
shall pay to Executive an additional cash payment, which after payment of
or withholding for any taxes (including, without limitation, any excise and
income taxes), interest, penalties, additions to tax or costs imposed or
incurred with respect to such additional cash payment, is equal to the
Section 4999 Taxes and Expenses. The determination that a Payment is
subject to Section 4999 Taxes and Expenses shall be made in writing by a
certified public accounting firm selected by Executive.
ARTICLE V
GENERAL PROVISIONS
------------------
V.1 Notice. For purposes of this Agreement, notices and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company: St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
Attn: President
With a copy to: David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660
If to Executive: Robert E. Gray
c/o St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
With a copy to: Paul A. Rowe, Esq.
Hewitt & McGuire
19900 MacArthur Blvd.
Suite 1050
Irvine, CA 92612
8
<PAGE>
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
V.2 No Waivers. No provision of this Agreement may be modified,
----------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
V.3 Beneficial Interests. This Agreement shall inure to the benefit
--------------------
of and be enforceable by Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee, legatee, or
other designee or, if there be no such designee, to Executive's estate.
V.4 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
V.5 Severability or Partial Invalidity. The invalidity or
----------------------------------
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
V.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
V.7 Legal Fees and Expenses. Should any party institute any action
-----------------------
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
in connection with such action or proceeding.
V.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement is intended
by the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
V.9 Assignment. This Agreement and the rights, duties, and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the
9
<PAGE>
other party and any attempted assignment or delegation without such prior
written consent shall be void and be of no effect. Notwithstanding the foregoing
provisions of this Section 5.9, the Company may assign or delegate its rights,
duties, and obligations hereunder to any Affiliate or to any person or entity
which succeeds to all or substantially all of the business of the Company
through merger, consolidation, reorganization, or other business combination or
by acquisition of all or substantially all of the assets of the Company.
V.10 Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this Agreement shall be settled, at the
request of either party, by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof, subject to the following terms, conditions
and exceptions:
(a) Notice of the demand for arbitration shall be filed in writing
with the other party and with the AAA. There shall be a panel of three (3)
arbitrators whose selection shall be made in accordance with the procedures
then existing for the selection of such arbitrators by the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) Except as otherwise provided in Section 5.7 hereof, the costs and
fees of the arbitration shall be allocated by the arbitrators.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written
"Company"
St. John Knits, Inc.,
a California corporation
By: /s/ ROGER RUPPERT
-----------------------------------
Roger Ruppert
Chief Financial Officer
"Executive"
/s/ ROBERT E. GRAY
----------------------------------------
Robert E. Gray
10
<PAGE>
EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This Amended and Restated Employment Agreement ("Agreement"), dated as
of July 14, 1998, is by and between St. John Knits, Inc., a California
corporation ("Company"), and Marie St. John Gray ("Executive"), and amends and
restates the terms of that certain Employment Agreement, dated as of January 1,
1998, between the Company and Executive. In consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows.
ARTICLE I
EMPLOYMENT
----------
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
I.1 Employment. The Company hereby employs Executive, and Executive
----------
agrees to serve as the Company's Vice Chairman, Chief Designer and Secretary
during the term of this Agreement, and shall serve at the discretion of the
Company's Board of Directors. Executive agrees to devote substantially her full
business time and attention and best efforts to the affairs of the Company
during the term of this Agreement.
I.2 Term. The employment of Executive by the Company under the terms
----
and conditions of this Agreement will commence as of January 1, 1998, and will
continue for a period of one (1) year unless renewed or terminated sooner in
accordance with the provisions hereof. This Agreement shall be automatically
renewed for continuous one year periods (each being an "Employment Period")
unless written notice is given by one party to the other at least thirty (30)
days' prior to the end of the then current Employment Period of such parties
election not to renew this Agreement, thereby causing this Agreement to
terminate at the end of such Employment Period.
I.3 Termination of Prior Agreement. Immediately upon the
------------------------------
commencement of Executive's employment pursuant to the terms of this Agreement,
that certain Employment Agreement by and between Executive and the Company dated
as of January 1, 1997, shall terminate and shall be of no further force or
effect.
ARTICLE II
COMPENSATION
------------
II.1 Annual Salary. During the employment of Executive, the Company
-------------
shall pay to Executive a base salary at the annual rate of $500,000 (the "Base
Salary"). The Base Salary shall be payable in substantially equal semi-monthly
installments.
1
<PAGE>
II.2 Reimbursement of Expenses. Executive shall be entitled to
-------------------------
receive prompt reimbursement of all reasonable expenses incurred by Executive in
performing services hereunder, including all expenses of travel, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
II.3 Automobile Allowance. The Company shall pay directly, or
--------------------
reimburse Executive for, all reasonable costs and expenses incurred by Executive
in connection with the operation and maintenance of an automobile (i.e. car
insurance, car license and general upkeep).
II.4 Benefits. Executive shall be entitled to participate in and be
--------
covered by all health, insurance, pension and other employee plans and benefits
currently established for the employees of the Company (collectively referred to
as the "Company Benefit Plans") on at least the same terms as other employees of
the Company, subject to meeting applicable eligibility requirements.
II.5 Vacations and Holidays. During Executive's employment with the
----------------------
Company, Executive shall be entitled to an annual vacation leave of six (6)
weeks at full pay, or such greater vacation benefits as may be provided for by
the Company's vacation policies applicable to senior executives. Executive
shall be entitled to such holidays as are established by the Company for all
employees.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
---------------------------------
III.1 Confidentiality. Executive will not during Executive's
---------------
employment by the Company or thereafter at any time disclose, directly or
indirectly, to any person or entity or use for Executive's own benefit any trade
secrets or confidential information relating to the Company's business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company or any of its clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company.
III.2 Return of Confidential Material. Executive shall promptly
-------------------------------
deliver to the Company on termination of Executive's employment with the
Company, whether or not for Cause and whatever the reason, or at any time the
Company may so request, all memoranda, notes, records, reports, manuals,
drawings, blueprints, Confidential Information and any other documents of a
confidential nature belonging to the Company, including all copies of such
materials which Executive may then possess or have under Executive's control.
Upon termination of Executive's employment by the Company, Executive shall not
take any document,
2
<PAGE>
data, or other material of any nature containing or pertaining to the
proprietary information of the Company.
III.3 Prohibition on Solicitation of Customers. During the term of
----------------------------------------
Executive's employment with the Company and for a period of one (1) year
thereafter Executive shall not, directly or indirectly, either for Executive or
for any other person or entity, solicit any person or entity to terminate such
person's or entity's contractual and/or business relationship with the Company,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship. None of the foregoing shall be deemed a waiver
of any and all rights and remedies the Company may have under applicable law.
III.4 Prohibition on Solicitation of Employees, Agents or Independent
---------------------------------------------------------------
Contractors After Termination. During the term of Executive's employment with
- -----------------------------
the Company and for a period of one (l) year following the termination of
Executive's employment with the Company, Executive will not solicit any of the
employees, agents, or independent contractors of the Company to leave the employ
of the Company for a competitive company or business. However, Executive may
solicit any employee, agent or independent contractor who voluntarily terminates
his or her employment with the Company after a period of 120 days has elapsed
since the termination date of such employee, agent or independent contractor.
None of the foregoing shall be deemed a waiver of any and all rights and
remedies the Company may have under applicable law.
III.5 Right to Injunctive and Equitable Relief. Executive's
----------------------------------------
obligations not to disclose or use Confidential Information and to refrain from
the solicitations described in this Article III are of a special and unique
character which gives them a peculiar value. The Company cannot be reasonably
or adequately compensated for damages in an action at law in the event Executive
breaches such obligations. Therefore, Executive expressly agrees that the
Company shall be entitled to injunctive and other equitable relief without bond
or other security in the event of such breach in addition to any other rights or
remedies which the Company may possess or be entitled to pursue. Furthermore,
the obligations of Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or Confidential Information.
III.6 Survival of Obligations. Executive agrees that the terms of
-----------------------
this Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
ARTICLE IV
TERMINATION
-----------
IV.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
3
<PAGE>
(a) Cause. "Cause" shall include the following:
-----
(i) personal dishonesty or willful misconduct by Executive;
(ii) a breach of Executive's fiduciary duties to the Company
which involves personal profit or benefit to Executive;
(iii) willful violation and conviction of any law, rule or
regulation (other than traffic violations or similar offenses) or of
any final cease and desist order issued by any financial institution
regulatory authority against the Company; or
(iv) a material breach of this Agreement by Executive.
(b) Good Reason. "Good Reason" shall mean voluntary termination
-----------
as a result of:
(i) the assignment to Executive of duties inconsistent with
the position and status of Executive as set forth in this Agreement
without Executive's prior written consent;
(ii) a substantial alteration in the nature, status or
prestige of Executive's responsibilities or a change in Executive's
title or reporting level from that set forth in this Agreement;
(iii) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles from
the location of such offices or businesses as of the date of this
Agreement;
(iv) a reduction by the Company of Executive's Base Salary;
(v) a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume and perform
this Agreement; or
(vi) an occurrence of a Change of Control Event. A "Change
of Control Event" shall mean and shall be deemed to have taken place
if any person or entity or group of affiliated persons or entities,
including a group which is deemed a "person" by Section 13(d)(3) of
the Securities Exchange Act of 1934, after the effective date of this
Agreement, acquires in one or more transactions ownership of 25% or
more of the outstanding shares of equity entitled to vote in the
election of directors of the Company without first receiving the
approval of the Company's then existing Board of Directors. As used
herein, "ownership" means beneficial or record ownership, directly or
indirectly, other than (a) by a person owning such shares merely of
record (such as a member of a securities exchange, a nominee, or a
securities depository system, (b) by a person as a bona
4
<PAGE>
fide pledgee of shares prior to a default and determination to
exercise powers as an owner of the shares, or (c) by a person who is
not required to file statements on Schedule 13D by virtue of Rule 13d-
1(b) of the Securities and Exchange Commission under the Securities
Exchange Act of 1934. Without limitation, the right to acquire
beneficial or record ownership shall not of itself constitute
ownership of shares.
(c) Disability. "Disability" shall mean a physical or mental
----------
incapacity as a result of which Executive becomes unable to continue the
proper performance of her duties hereunder (reasonable absences because of
sickness for up to two (2) consecutive months excepted; provided, however,
that any new period of incapacity or absence shall be deemed to be part of
a prior period of incapacity or absence if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity or
absence and the incapacity or absence is determined by the Company's Board
of Directors, in good faith, to be related to the prior incapacity or
absence). A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and
Executive or in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
and the two (2) doctors so nominated shall select a third doctor, who shall
make the determination as to Disability.
IV.2 Termination by Company. The Company may terminate Executive's
----------------------
employment hereunder immediately for Cause. Subject to the other provisions
contained in this Agreement, the Company may terminate this Agreement for any
reason other than Cause upon thirty (30) days' written notice to Executive. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.3 Termination by Executive. Executive may terminate her
------------------------
employment hereunder upon thirty (30) days' written notice to the Company. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.4 Death or Disability of Executive. Executive's employment
--------------------------------
hereunder shall terminate immediately upon the death or Disability of Executive.
IV.5 Severance Benefits Received Upon Termination.
--------------------------------------------
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement pursuant to Section 4.3 other
than for Good Reason, then the Company shall pay Executive her Base Salary
through the Effective Date of such termination plus credit for any vacation
earned but not taken, and the Company shall thereafter have no further
obligations to Executive under this Agreement.
5
<PAGE>
(b) If Executive's employment is terminated by the Company
without Cause, or Executive terminates this Agreement for Good Reason, then
the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
Base Salary for a period equal to the longer of the remainder of the
term of this Agreement or six (6) months, said sum to be paid semi-
monthly in equal installments at the times salary payments are usually
made; and
(ii) health insurance coverage as then in effect for
Executive, her spouse and dependent children for a period equal to the
longer of the remainder of the term of this Agreement or six (6)
months, subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits will
be in accordance with COBRA.
(c) If Executive's employment is terminated by the Company as a
result of Disability, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period of eighteen (18) months, said sum to be
paid monthly in equal installments at the times salary payments are
usually made; and
(ii) health insurance coverage as then in effect for
Executive, her spouse and dependent children for a period of eighteen
(18) months, subject to any employee contribution provisions as
defined in the Company Benefit Plans. Subsequent health insurance
benefits will be in accordance with COBRA.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall provide Executive's spouse or
estate health insurance coverage as then in effect for Executive, her
spouse and dependent children for a period of six (6) months, subject to
any employee contribution provisions as defined in the Company Benefit
Plans. Health insurance benefits subsequent to the salary continuation
period will be in accordance with COBRA.
(e) In the event Executive's employment is terminated for Good
Reason pursuant to either Sections 4.1(b)(v) or 4.1(b)(vi), then in
addition to those payments required by Section 4.5(b) above, the Company
shall also provide to Executive a lump sum payment within thirty (30) days
of the Effective Date equal to twice Executive's Base Salary, or
$1,000,000.
(f) This Section 4.5(f) is intended to put Executive in the same
economic position as Executive would have had no Section 4999 Taxes and
Expenses (as defined below) been imposed upon or incurred as a result of
any payment, distribution, benefit or transfer (each a "Payment" and
collectively the "Payments") made pursuant to the terms of this Agreement
or otherwise. In the event it is determined that any Payments
6
<PAGE>
to or for the benefit of Executive is or was subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended,
any successor provision, or any comparable provision of state or local
income tax law, or any interest, penalties, additions to tax, or costs are
or were incurred by Executive with respect to any such excise taxes (such
taxes, penalties, interest, additions to tax and costs (including
professional fees) are hereinafter referred to as "Section 4999 Taxes and
Expenses"), then within ten (10) days after such determination, the Company
shall pay to Executive an additional cash payment, which after payment of
or withholding for any taxes (including, without limitation, any excise and
income taxes), interest, penalties, additions to tax or costs imposed or
incurred with respect to such additional cash payment, is equal to the
Section 4999 Taxes and Expenses. The determination that a Payment is
subject to Section 4999 Taxes and Expenses shall be made in writing by a
certified public accounting firm selected by Executive.
ARTICLE V
GENERAL PROVISIONS
------------------
V.1 Notice. For purposes of this Agreement, notices and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company: St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
Attn: Chief Executive Officer
With a copy to: David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660
If to Executive: Marie St. John Gray
c/o St. John Knits, Inc.
17522 Armstrong Avenue
Irvine, CA 92614
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
V.2 No Waivers. No provision of this Agreement may be modified,
----------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the
7
<PAGE>
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
V.3 Beneficial Interests. This Agreement shall inure to the benefit
--------------------
of and be enforceable by Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still payable to her
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee, legatee, or
other designee or, if there be no such designee, to Executive's estate.
V.4 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
V.5 Severability or Partial Invalidity. The invalidity or
----------------------------------
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
V.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
V.7 Legal Fees and Expenses. Should any party institute any action
-----------------------
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
in connection with such action or proceeding.
V.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement is intended
by the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
V.9 Assignment. This Agreement and the rights, duties, and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the other party and any attempted assignment or
delegation without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing provisions of this Section 5.9, the Company may
assign or delegate its rights, duties, and obligations hereunder to any
Affiliate or to any person or entity which succeeds to all or substantially all
of the business of the Company through merger, consolidation, reorganization, or
other business combination or by acquisition of all or substantially all of the
assets of the Company.
8
<PAGE>
V.10 Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this Agreement shall be settled, at the
request of either party, by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof, subject to the following terms, conditions
and exceptions:
(a) Notice of the demand for arbitration shall be filed in
writing with the other party and with the AAA. There shall be a panel of three
(3) arbitrators whose selection shall be made in accordance with the procedures
then existing for the selection of such arbitrators by the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) Except as otherwise provided in Section 5.7 hereof, the costs
and fees of the arbitration shall be allocated by the arbitrators.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
St. John Knits, Inc.,
a California corporation
By: /s/ BOB GRAY
-----------------------
Bob Gray
Chief Executive Officer
"Executive"
/s/ MARIE ST. JOHN GRAY
----------------------------
Marie St. John Gray
9
<PAGE>
EXHIBIT 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This Amended and Restated Employment Agreement ("Agreement"), dated as
of July 14, 1998, is by and between St. John Knits, Inc., a California
corporation ("Company"), and Kelly A. Gray ("Executive"), and amends and
restates the terms of that certain Employment Agreement, dated as of January 1,
1998, between the Company and Executive. In consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows.
ARTICLE I
EMPLOYMENT
----------
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
I.1 Employment. The Company hereby employs Executive, and Executive
----------
agrees to serve as the Company's President during the term of this Agreement,
and shall serve at the discretion of the Company's Board of Directors.
Executive agrees to devote substantially her full business time and attention
and best efforts to the affairs of the Company during the term of this
Agreement.
I.2 Term. The employment of Executive by the Company under the terms
----
and conditions of this Agreement will commence as of January 1, 1998 and will
continue until for a period of one (1) year unless renewed or terminated sooner
in accordance with the provisions hereof. This Agreement shall be automatically
renewed for continuous one year periods (each being an "Employment Period")
unless written notice is given by one party to the other at least thirty (30)
days' prior to the end of the then current Employment Period of such parties
election not to renew this Agreement, thereby causing this Agreement to
terminate at the end of such Employment Period.
I.3 Termination of Prior Agreement. Immediately upon the
------------------------------
commencement of Executive's employment pursuant to the terms of this Agreement,
that certain Employment Agreement by and between Executive and the Company dated
as of January 1, 1997, shall terminate and shall be of no further force or
effect.
ARTICLE II
COMPENSATION
------------
II.1 Annual Salary. During the employment of Executive, the Company
-------------
shall pay to Executive a base salary at the annual rate of $400,000 (the "Base
Salary"). The Base Salary shall be payable in substantially equal semi-monthly
installments.
1
<PAGE>
II.2 Reimbursement of Expenses. Executive shall be entitled to
-------------------------
receive prompt reimbursement of all reasonable expenses incurred by Executive in
performing services hereunder, including all expenses of travel, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
II.3 Automobile Allowance. The Company shall pay directly, or
--------------------
reimburse Executive for, all reasonable costs and expenses incurred by Executive
in connection with the operation and maintenance of an automobile (i.e. car
insurance, car license and general upkeep).
II.4 Benefits. Executive shall be entitled to participate in and be
--------
covered by all health, insurance, pension and other employee plans and benefits
currently established for the employees of the Company (collectively referred to
as the "Company Benefit Plans") on at least the same terms as other employees of
the Company, subject to meeting applicable eligibility requirements.
II.5 Vacations and Holidays. During Executive's employment with the
----------------------
Company, Executive shall be entitled to an annual vacation leave of three (3)
weeks at full pay, or such greater vacation benefits as may be provided for by
the Company's vacation policies applicable to senior executives. Executive
shall be entitled to such holidays as are established by the Company for all
employees.
II.6 Modeling Fee. The Company shall pay to Executive an amount at
------------
the annual rate of Two Hundred Fifty Thousand Dollars ($250,000) for her
position as Signature Model of the Company; such amount shall be payable in
twelve substantially equal monthly installments.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
---------------------------------
III.1 Confidentiality. Executive will not during Executive's
---------------
employment by the Company or thereafter at any time disclose, directly or
indirectly, to any person or entity or use for Executive's own benefit any trade
secrets or confidential information relating to the Company's business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company or any of its clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company.
III.2 Return of Confidential Material. Executive shall promptly
-------------------------------
deliver to the Company on termination of Executive's employment with the
Company, whether or not for Cause and whatever the reason, or at any time the
Company may so request, all memoranda,
2
<PAGE>
notes, records, reports, manuals, drawings, blueprints, Confidential Information
and any other documents of a confidential nature belonging to the Company,
including all copies of such materials which Executive may then possess or have
under Executive's control. Upon termination of Executive's employment by the
Company, Executive shall not take any document, data, or other material of any
nature containing or pertaining to the proprietary information of the Company.
III.3 Prohibition on Solicitation of Customers. During the term of
----------------------------------------
Executive's employment with the Company and for a period of one (1) year
thereafter Executive shall not, directly or indirectly, either for Executive or
for any other person or entity, solicit any person or entity to terminate such
person's or entity's contractual and/or business relationship with the Company,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship. None of the foregoing shall be deemed a waiver
of any and all rights and remedies the Company may have under applicable law.
III.4 Prohibition on Solicitation of Employees, Agents or Independent
---------------------------------------------------------------
Contractors After Termination. During the term of Executive's employment with
- -----------------------------
the Company and for a period of one (l) year following the termination of
Executive's employment with the Company, Executive will not solicit any of the
employees, agents, or independent contractors of the Company to leave the employ
of the Company for a competitive company or business. However, Executive may
solicit any employee, agent or independent contractor who voluntarily terminates
his or her employment with the Company after a period of 120 days has elapsed
since the termination date of such employee, agent or independent contractor.
None of the foregoing shall be deemed a waiver of any and all rights and
remedies the Company may have under applicable law.
III.5 Right to Injunctive and Equitable Relief. Executive's
----------------------------------------
obligations not to disclose or use Confidential Information and to refrain from
the solicitations described in this Article III are of a special and unique
character which gives them a peculiar value. The Company cannot be reasonably
or adequately compensated for damages in an action at law in the event Executive
breaches such obligations. Therefore, Executive expressly agrees that the
Company shall be entitled to injunctive and other equitable relief without bond
or other security in the event of such breach in addition to any other rights or
remedies which the Company may possess or be entitled to pursue. Furthermore,
the obligations of Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or Confidential Information.
III.6 Survival of Obligations. Executive agrees that the terms of
-----------------------
this Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
3
<PAGE>
ARTICLE IV
TERMINATION
-----------
IV.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
(a) Cause. "Cause" shall include the following:
-----
(i) personal dishonesty or willful misconduct by Executive;
(ii) a breach of Executive's fiduciary duties to the Company
which involves personal profit or benefit to Executive;
(iii) willful violation and conviction of any law, rule or
regulation (other than traffic violations or similar offenses) or of
any final cease and desist order issued by any financial institution
regulatory authority against the Company; or
(iv) a material breach of this Agreement by Executive.
(b) Good Reason. "Good Reason" shall mean voluntary termination
-----------
as a result of:
(i) the assignment to Executive of duties inconsistent with
the position and status of Executive as set forth in this Agreement
without Executive's prior written consent;
(ii) a substantial alteration in the nature, status or
prestige of Executive's responsibilities or a change in Executive's
title or reporting level from that set forth in this Agreement;
(iii) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles from
the location of such offices or businesses as of the date of this
Agreement;
(iv) a reduction by the Company of Executive's Base Salary;
(v) a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume and perform
this Agreement; or
(vi) an occurrence of a Change of Control Event. A "Change
of Control Event" shall mean and shall be deemed to have taken place
if any person or entity or group of affiliated persons or entities,
including a group which is deemed a "person" by Section 13(d)(3) of
the Securities Exchange Act of 1934,
4
<PAGE>
after the effective date of this Agreement, acquires in one or more
transactions ownership of 25% or more of the outstanding shares of
equity entitled to vote in the election of directors of the Company
without first receiving the approval of the Company's then existing
Board of Directors. As used herein, "ownership" means beneficial or
record ownership, directly or indirectly, other than (a) by a person
owning such shares merely of record (such as a member of a securities
exchange, a nominee, or a securities depository system, (b) by a
person as a bona fide pledgee of shares prior to a default and
determination to exercise powers as an owner of the shares, or (c) by
a person who is not required to file statements on Schedule 13D by
virtue of Rule 13d-1(b) of the Securities and Exchange Commission
under the Securities Exchange Act of 1934. Without limitation, the
right to acquire beneficial or record ownership shall not of itself
constitute ownership of shares.
(c) Disability. "Disability" shall mean a physical or mental
----------
incapacity as a result of which Executive becomes unable to continue the
proper performance of her duties hereunder (reasonable absences because of
sickness for up to two (2) consecutive months excepted; provided, however,
that any new period of incapacity or absence shall be deemed to be part of
a prior period of incapacity or absence if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity or
absence and the incapacity or absence is determined by the Company's Board
of Directors, in good faith, to be related to the prior incapacity or
absence). A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and
Executive or in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
and the two (2) doctors so nominated shall select a third doctor, who shall
make the determination as to Disability.
IV.2 Termination by Company. The Company may terminate Executive's
----------------------
employment hereunder immediately for Cause. Subject to the other provisions
contained in this Agreement, the Company may terminate this Agreement for any
reason other than Cause upon thirty (30) days' written notice to Executive. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.3 Termination by Executive. Executive may terminate her
------------------------
employment hereunder upon thirty (30) days' written notice to the Company. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.4 Death or Disability of Executive. Executive's employment
--------------------------------
hereunder shall terminate immediately upon the death or Disability of Executive.
5
<PAGE>
IV.5 Severance Benefits Received Upon Termination.
--------------------------------------------
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement pursuant to Section 4.3 other
than for Good Reason, then the Company shall pay Executive her Base Salary
through the Effective Date of such termination plus credit for any vacation
earned but not taken, and the Company shall thereafter have no further
obligations to Executive under this Agreement.
(b) If Executive's employment is terminated by the Company
without Cause, or Executive terminates this Agreement for Good Reason, then
the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
Base Salary for a period equal to the longer of the remainder of the
term of this Agreement or six (6) months, said sum to be paid semi-
monthly in equal installments at the times salary payments are usually
made; and
(ii) health insurance coverage as then in effect for
Executive, her spouse and dependent children for a period equal to the
longer of the remainder of the term of this Agreement or six (6)
months, subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits will
be in accordance with COBRA.
(c) If Executive's employment is terminated by the Company as a
result of Disability, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period equal to one month for each full year
Executive has been employed by the Company, up to a maximum of
eighteen (18) months, said sum to be paid monthly in equal
installments at the times salary payments are usually made; and
(ii) health insurance coverage as then in effect for
Executive, her spouse and dependent children for a period of one month
for each full year Executive has been employed by the Company, up to a
maximum of eighteen (18) months, subject to any employee contribution
provisions as defined in the Company Benefit Plans. Subsequent health
insurance benefits will be in accordance with COBRA.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall provide Executive's spouse or
estate health insurance coverage as then in effect for Executive, her
spouse and dependent children for a period of six (6) months, subject to
any employee contribution provisions as defined in the Company Benefit
Plans. Health insurance benefits subsequent to the salary continuation
period will be in accordance with COBRA.
6
<PAGE>
(e) In the event Executive's employment is terminated for Good
Reason pursuant to either Sections 4.1(b)(v) or 4.1(b)(vi), then in
addition to those payments required by Section 4.5(b) above, the Company
shall also provide to Executive a lump sum payment within thirty (30) days
of the Effective Date equal to twice Executive's Base Salary, or $800,000.
(f) This Section 4.5(f) is intended to put Executive in the same
economic position as Executive would have had no Section 4999 Taxes and
Expenses (as defined below) been imposed upon or incurred as a result of
any payment, distribution, benefit or transfer (each a "Payment" and
collectively the "Payments") made pursuant to the terms of this Agreement
or otherwise. In the event it is determined that any Payments to or for
the benefit of Executive is or was subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, any
successor provision, or any comparable provision of state or local income
tax law, or any interest, penalties, additions to tax, or costs are or were
incurred by Executive with respect to any such excise taxes (such taxes,
penalties, interest, additions to tax and costs (including professional
fees) are hereinafter referred to as "Section 4999 Taxes and Expenses"),
then within ten (10) days after such determination, the Company shall pay
to Executive an additional cash payment, which after payment of or
withholding for any taxes (including, without limitation, any excise and
income taxes), interest, penalties, additions to tax or costs imposed or
incurred with respect to such additional cash payment, is equal to the
Section 4999 Taxes and Expenses. The determination that a Payment is
subject to Section 4999 Taxes and Expenses shall be made in writing by a
certified public accounting firm selected by Executive.
ARTICLE V
GENERAL PROVISIONS
------------------
V.1 Notice. For purposes of this Agreement, notices and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company: St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
Attn: Chief Executive Officer
With a copy to: David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660
7
<PAGE>
If to Executive: Kelly A. Gray
c/o St. John Knits, Inc.
17522 Armstrong Avenue
Irvine, CA 92614
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
V.2 No Waivers. No provision of this Agreement may be modified,
----------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
V.3 Beneficial Interests. This Agreement shall inure to the benefit
--------------------
of and be enforceable by Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still payable to her
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee, legatee, or
other designee or, if there be no such designee, to Executive's estate.
V.4 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
V.5 Severability or Partial Invalidity. The invalidity or
----------------------------------
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
V.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
V.7 Legal Fees and Expenses. Should any party institute any action
-----------------------
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
in connection with such action or proceeding.
V.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement is intended
by the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any
8
<PAGE>
prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
V.9 Assignment. This Agreement and the rights, duties, and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the other party and any attempted assignment or
delegation without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing provisions of this Section 5.9, the Company may
assign or delegate its rights, duties, and obligations hereunder to any
Affiliate or to any person or entity which succeeds to all or substantially all
of the business of the Company through merger, consolidation, reorganization, or
other business combination or by acquisition of all or substantially all of the
assets of the Company.
V.10 Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this Agreement shall be settled, at the
request of either party, by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof, subject to the following terms, conditions
and exceptions:
(a) Notice of the demand for arbitration shall be filed in writing
with the other party and with the AAA. There shall be a panel of three (3)
arbitrators whose selection shall be made in accordance with the procedures then
existing for the selection of such arbitrators by the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) Except as otherwise provided in Section 5.7 hereof, the costs and
fees of the arbitration shall be allocated by the arbitrators.
9
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
St. John Knits, Inc.,
a California corporation
By: /s/ BOB GRAY
------------------------------
Bob Gray
Chief Executive Officer
"Executive"
/s/ KELLY A. GRAY
-----------------------------------
Kelly A. Gray
10
<PAGE>
EXHIBIT 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This Amended and Restated Employment Agreement ("Agreement"), dated as
of July 14, 1998, is by and between St. John Knits, Inc., a California
corporation ("Company"), and Roger Ruppert ("Executive"), and amends and
restates the terms of that certain Employment Agreement, dated as of January 1,
1998, between the Company and Executive. In consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows.
ARTICLE I
EMPLOYMENT
----------
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
I.1 Employment. The Company hereby employs Executive, and Executive
----------
agrees to serve as the Company's Senior Vice President-Finance and Chief
Financial Officer during the term of this Agreement, and shall serve at the
discretion of the Company's Board of Directors. Executive agrees to devote
substantially his full business time and attention and best efforts to the
affairs of the Company during the term of this Agreement.
I.2 Term. The employment of Executive by the Company under the terms
----
and conditions of this Agreement will commence as of January 1, 1998 and will
continue for a period of one (1) year unless renewed or terminated sooner in
accordance with the provisions hereof. This Agreement shall be automatically
renewed for continuous one year periods (each being an "Employment Period")
unless written notice is given by one party to the other at least thirty (30)
days' prior to the end of the then current Employment Period of such parties
election not to renew this Agreement, thereby causing this Agreement to
terminate at the end of such Employment Period.
I.3 Termination of Prior Agreement. Immediately upon the
------------------------------
commencement of Executive's employment pursuant to the terms of this Agreement,
that certain Employment Agreement by and between Executive and the Company dated
as of January 1, 1997, shall terminate and shall be of no further force or
effect.
ARTICLE II
COMPENSATION
------------
II.1 Annual Salary. During the employment of Executive, the Company
-------------
shall pay to Executive a base salary at the annual rate of $220,000 (the "Base
Salary"). The Base Salary shall be payable in substantially equal semi-monthly
installments.
1
<PAGE>
II.2 Reimbursement of Expenses. Executive shall be entitled to
-------------------------
receive prompt reimbursement of all reasonable expenses incurred by Executive in
performing services hereunder, including all expenses of travel, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
II.3 Automobile Allowance. The Company shall pay directly, or
--------------------
reimburse Executive for, all reasonable costs and expenses incurred by Executive
in connection with the operation and maintenance of an automobile (i.e. car
insurance, car license and general upkeep).
II.4 Benefits. Executive shall be entitled to participate in and be
--------
covered by all health, insurance, pension and other employee plans and benefits
currently established for the employees of the Company (collectively referred to
as the "Company Benefit Plans") on at least the same terms as other employees of
the Company, subject to meeting applicable eligibility requirements.
II.5 Vacations and Holidays. During Executive's employment with the
----------------------
Company, Executive shall be entitled to an annual vacation leave of three (3)
weeks at full pay, or such greater vacation benefits as may be provided for by
the Company's vacation policies applicable to senior executives. Executive
shall be entitled to such holidays as are established by the Company for all
employees.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
---------------------------------
III.1 Confidentiality. Executive will not during Executive's
---------------
employment by the Company or thereafter at any time disclose, directly or
indirectly, to any person or entity or use for Executive's own benefit any trade
secrets or confidential information relating to the Company's business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company or any of its clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company.
III.2 Return of Confidential Material. Executive shall promptly
-------------------------------
deliver to the Company on termination of Executive's employment with the
Company, whether or not for Cause and whatever the reason, or at any time the
Company may so request, all memoranda, notes, records, reports, manuals,
drawings, blueprints, Confidential Information and any other documents of a
confidential nature belonging to the Company, including all copies of such
materials which Executive may then possess or have under Executive's control.
Upon termination of Executive's employment by the Company, Executive shall not
take any document, data, or other material of any nature containing or
pertaining to the proprietary information of the
2
<PAGE>
Company.
III.3 Prohibition on Solicitation of Customers. During the term of
----------------------------------------
Executive's employment with the Company and for a period of one (1) year
thereafter Executive shall not, directly or indirectly, either for Executive or
for any other person or entity, solicit any person or entity to terminate such
person's or entity's contractual and/or business relationship with the Company,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship. None of the foregoing shall be deemed a waiver
of any and all rights and remedies the Company may have under applicable law.
III.4 Prohibition on Solicitation of Employees, Agents or Independent
---------------------------------------------------------------
Contractors After Termination. During the term of Executive's employment with
- -----------------------------
the Company and for a period of one (l) year following the termination of
Executive's employment with the Company, Executive will not solicit any of the
employees, agents, or independent contractors of the Company to leave the employ
of the Company for a competitive company or business. However, Executive may
solicit any employee, agent or independent contractor who voluntarily terminates
his or her employment with the Company after a period of 120 days has elapsed
since the termination date of such employee, agent or independent contractor.
None of the foregoing shall be deemed a waiver of any and all rights and
remedies the Company may have under applicable law.
III.5 Right to Injunctive and Equitable Relief. Executive's
----------------------------------------
obligations not to disclose or use Confidential Information and to refrain from
the solicitations described in this Article III are of a special and unique
character which gives them a peculiar value. The Company cannot be reasonably
or adequately compensated for damages in an action at law in the event Executive
breaches such obligations. Therefore, Executive expressly agrees that the
Company shall be entitled to injunctive and other equitable relief without bond
or other security in the event of such breach in addition to any other rights or
remedies which the Company may possess or be entitled to pursue. Furthermore,
the obligations of Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or Confidential Information.
III.6 Survival of Obligations. Executive agrees that the terms of
-----------------------
this Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
ARTICLE IV
TERMINATION
-----------
IV.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
(a) Cause. "Cause" shall include the following:
-----
3
<PAGE>
(i) personal dishonesty or willful misconduct by Executive;
(ii) a breach of Executive's fiduciary duties to the Company
which involves personal profit or benefit to Executive;
(iii) willful violation and conviction of any law, rule or
regulation (other than traffic violations or similar offenses) or of
any final cease and desist order issued by any financial institution
regulatory authority against the Company; or
(iv) a material breach of this Agreement by Executive.
(b) Good Reason. "Good Reason" shall mean voluntary termination
-----------
as a result of:
(i) the assignment to Executive of duties inconsistent with
the position and status of Executive as set forth in this Agreement
without Executive's prior written consent;
(ii) a substantial alteration in the nature, status or
prestige of Executive's responsibilities or a change in Executive's
title or reporting level from that set forth in this Agreement;
(iii) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles from
the location of such offices or businesses as of the date of this
Agreement;
(iv) a reduction by the Company of Executive's Base Salary;
(v) a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume and perform
this Agreement; or
(vi) an occurrence of a Change of Control Event. A "Change
of Control Event" shall mean and shall be deemed to have taken place
if any person or entity or group of affiliated persons or entities,
including a group which is deemed a "person" by Section 13(d)(3) of
the Securities Exchange Act of 1934, after the effective date of this
Agreement, acquires in one or more transactions ownership of 25% or
more of the outstanding shares of equity entitled to vote in the
election of directors of the Company without first receiving the
approval of the Company's then existing Board of Directors. As used
herein, "ownership" means beneficial or record ownership, directly or
indirectly, other than (a) by a person owning such shares merely of
record (such as a member of a securities exchange, a nominee, or a
securities depository system, (b) by a person as a bona fide pledgee
of shares prior to a default and determination to exercise powers as
4
<PAGE>
an owner of the shares, or (c) by a person who is not required to file
statements on Schedule 13D by virtue of Rule 13d-1(b) of the
Securities and Exchange Commission under the Securities Exchange Act
of 1934. Without limitation, the right to acquire beneficial or
record ownership shall not of itself constitute ownership of shares.
(c) Disability. "Disability" shall mean a physical or mental
----------
incapacity as a result of which Executive becomes unable to continue the
proper performance of his duties hereunder (reasonable absences because of
sickness for up to two (2) consecutive months excepted; provided, however,
that any new period of incapacity or absence shall be deemed to be part of
a prior period of incapacity or absence if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity or
absence and the incapacity or absence is determined by the Company's Board
of Directors, in good faith, to be related to the prior incapacity or
absence). A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and
Executive or in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
and the two (2) doctors so nominated shall select a third doctor, who shall
make the determination as to Disability.
IV.2 Termination by Company. The Company may terminate Executive's
----------------------
employment hereunder immediately for Cause. Subject to the other provisions
contained in this Agreement, the Company may terminate this Agreement for any
reason other than Cause upon thirty (30) days' written notice to Executive. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.3 Termination by Executive. Executive may terminate his
------------------------
employment hereunder upon thirty (30) days' written notice to the Company. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.4 Death or Disability of Executive. Executive's employment
--------------------------------
hereunder shall terminate immediately upon the death or Disability of Executive.
IV.5 Severance Benefits Received Upon Termination.
--------------------------------------------
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement pursuant to Section 4.3 other
than for Good Reason, then the Company shall pay Executive his Base Salary
through the Effective Date of such termination plus credit for any vacation
earned but not taken, and the Company shall thereafter have no further
obligations to Executive under this Agreement.
5
<PAGE>
(b) If Executive's employment is terminated by the Company
without Cause, or Executive terminates this Agreement for Good Reason, then
the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
Base Salary for a period equal to the longer of the remainder of the
term of this Agreement or six (6) months, said sum to be paid semi-
monthly in equal installments at the times salary payments are usually
made; and
(ii) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period equal to the
longer of the remainder of the term of this Agreement or six (6)
months, subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits will
be in accordance with COBRA.
(c) If Executive's employment is terminated by the Company as a
result of Disability, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period equal to one month for each full year
Executive has been employed by the Company, up to a maximum of
eighteen (18) months, said sum to be paid monthly in equal
installments at the times salary payments are usually made; and
(ii) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period of one month
for each full year Executive has been employed by the Company, up to a
maximum of eighteen (18) months, subject to any employee contribution
provisions as defined in the Company Benefit Plans. Subsequent health
insurance benefits will be in accordance with COBRA.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall provide Executive's spouse or
estate health insurance coverage as then in effect for Executive, his
spouse and dependent children for a period of six (6) months, subject to
any employee contribution provisions as defined in the Company Benefit
Plans. Health insurance benefits subsequent to the salary continuation
period will be in accordance with COBRA.
(e) In the event Executive's employment is terminated for Good
Reason pursuant to either Sections 4.1(b)(v) or 4.1(b)(vi), then in
addition to those payments required by Section 4.5(b) above, the Company
shall also provide to Executive a lump sum payment within thirty (30) days
of the Effective Date equal to twice Executive's Base Salary, or $440,000.
(f) This Section 4.5(f) is intended to put Executive in the same
economic position as Executive would have had no Section 4999 Taxes and
Expenses (as
6
<PAGE>
defined below) been imposed upon or incurred as a result of any payment,
distribution, benefit or transfer (each a "Payment" and collectively the
"Payments") made pursuant to the terms of this Agreement or otherwise. In
the event it is determined that any Payments to or for the benefit of
Executive is or was subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended, any successor provision, or
any comparable provision of state or local income tax law, or any interest,
penalties, additions to tax, or costs are or were incurred by Executive
with respect to any such excise taxes (such taxes, penalties, interest,
additions to tax and costs (including professional fees) are hereinafter
referred to as "Section 4999 Taxes and Expenses"), then within ten (10)
days after such determination, the Company shall pay to Executive an
additional cash payment, which after payment of or withholding for any
taxes (including, without limitation, any excise and income taxes),
interest, penalties, additions to tax or costs imposed or incurred with
respect to such additional cash payment, is equal to the Section 4999 Taxes
and Expenses. The determination that a Payment is subject to Section 4999
Taxes and Expenses shall be made in writing by a certified public
accounting firm selected by Executive.
ARTICLE V
GENERAL PROVISIONS
------------------
V.1 Notice. For purposes of this Agreement, notices and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company: St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
Attn: Chief Executive Officer
With a copy to: David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660
If to Executive: Roger G. Ruppert
c/o St. John Knits, Inc.
2722 Michelson Drive
Irvine, CA 92612
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
7
<PAGE>
V.2 No Waivers. No provision of this Agreement may be modified,
----------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
V.3 Beneficial Interests. This Agreement shall inure to the benefit
--------------------
of and be enforceable by Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee, legatee, or
other designee or, if there be no such designee, to Executive's estate.
V.4 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
V.5 Severability or Partial Invalidity. The invalidity or
----------------------------------
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
V.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
V.7 Legal Fees and Expenses. Should any party institute any action
-----------------------
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
in connection with such action or proceeding.
V.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement is intended
by the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
V.9 Assignment. This Agreement and the rights, duties, and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the other party and any attempted assignment or
delegation without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing provisions of this Section 5.9, the Company may
assign or delegate its rights, duties, and obligations hereunder to any
Affiliate or
8
<PAGE>
to any person or entity which succeeds to all or substantially all of the
business of the Company through merger, consolidation, reorganization, or other
business combination or by acquisition of all or substantially all of the assets
of the Company.
V.10 Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this Agreement shall be settled, at the
request of either party, by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof, subject to the following terms, conditions
and exceptions:
(a) Notice of the demand for arbitration shall be filed in
writing with the other party and with the AAA. There shall be a panel of three
(3) arbitrators whose selection shall be made in accordance with the procedures
then existing for the selection of such arbitrators by the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) Except as otherwise provided in Section 5.7 hereof, the costs
and fees of the arbitration shall be allocated by the arbitrators.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
St. John Knits, Inc.,
a California corporation
By: /s/ BOB GRAY
-----------------------------
Bob Gray
Chief Executive Officer
"Executive"
/s/ ROGER G. RUPPERT
-----------------------------------
Roger G. Ruppert
9
<PAGE>
EXHIBIT 10.7
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement ("Agreement") is dated as of July 14, 1998,
between St. John Knits, Inc., a California corporation ("Company"), and David C.
Frankel ("Executive"). In consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows.
ARTICLE I
EMPLOYMENT
----------
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
I.1 Employment. The Company hereby employs Executive, and Executive
----------
agrees to serve as the Company's Executive Vice President during the term of
this Agreement, and shall serve at the discretion of the Company's Board of
Directors. Executive agrees to devote substantially his full business time and
attention and best efforts to the affairs of the Company during the term of this
Agreement.
I.2 Term. The employment of Executive by the Company under the terms
----
and conditions of this Agreement will commence as of July 14, 1998 and will
continue until December 31, 1998, unless renewed or terminated sooner in
accordance with the provisions hereof. This Agreement shall be automatically
renewed for continuous one year (i.e. January 1, 1999 through December 31, 1999
being the first such year) periods (each being an "Employment Period") unless
written notice is given by one party to the other at least thirty (30) days'
prior to the end of the then current Employment Period of such parties election
not to renew this Agreement, thereby causing this Agreement to terminate at the
end of such Employment Period.
I.3 Termination of Prior Agreement. Immediately upon the
------------------------------
commencement of Executive's employment pursuant to the terms of this Agreement,
that certain Letter Employment Agreement by and between Executive and the
Company dated July 22, 1996, shall terminate and shall be of no further force or
effect.
ARTICLE II
COMPENSATION
------------
II.1 Annual Salary. During the employment of Executive, the Company
-------------
shall pay to Executive a base salary at the annual rate of $250,000 (the "Base
Salary"). The Base Salary shall be payable in substantially equal semi-monthly
installments.
II.2 Reimbursement of Expenses. Executive shall be entitled to
-------------------------
receive
1
<PAGE>
prompt reimbursement of all reasonable expenses incurred by Executive in
performing services hereunder, including all expenses of travel, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
II.3 Automobile Allowance. The Company shall pay directly, or
--------------------
reimburse Executive for, all reasonable costs and expenses incurred by Executive
in connection with the operation and maintenance of an automobile (i.e. car
insurance, car license and general upkeep).
II.4 Benefits. Executive shall be entitled to participate in and be
--------
covered by all health, insurance, pension and other employee plans and benefits
currently established for the employees of the Company (collectively referred to
as the "Company Benefit Plans") on at least the same terms as other employees of
the Company, subject to meeting applicable eligibility requirements.
II.5 Vacations and Holidays. During Executive's employment with the
----------------------
Company, Executive shall be entitled to an annual vacation leave of three (3)
weeks at full pay, or such greater vacation benefits as may be provided for by
the Company's vacation policies applicable to senior executives. Executive
shall be entitled to such holidays as are established by the Company for all
employees.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
---------------------------------
III.1 Confidentiality. Executive will not during Executive's
---------------
employment by the Company or thereafter at any time disclose, directly or
indirectly, to any person or entity or use for Executive's own benefit any trade
secrets or confidential information relating to the Company's business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company or any of its clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company.
III.2 Return of Confidential Material. Executive shall promptly
-------------------------------
deliver to the Company on termination of Executive's employment with the
Company, whether or not for Cause and whatever the reason, or at any time the
Company may so request, all memoranda, notes, records, reports, manuals,
drawings, blueprints, Confidential Information and any other documents of a
confidential nature belonging to the Company, including all copies of such
materials which Executive may then possess or have under Executive's control.
Upon termination of Executive's employment by the Company, Executive shall not
take any document, data, or other material of any nature containing or
pertaining to the proprietary information of the Company.
2
<PAGE>
III.3 Prohibition on Solicitation of Customers. During the term of
----------------------------------------
Executive's employment with the Company and for a period of one (1) year
thereafter Executive shall not, directly or indirectly, either for Executive or
for any other person or entity, solicit any person or entity to terminate such
person's or entity's contractual and/or business relationship with the Company,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship. None of the foregoing shall be deemed a waiver
of any and all rights and remedies the Company may have under applicable law.
III.4 Prohibition on Solicitation of Employees, Agents or Independent
---------------------------------------------------------------
Contractors After Termination. During the term of Executive's employment with
- -----------------------------
the Company and for a period of one (l) year following the termination of
Executive's employment with the Company, Executive will not solicit any of the
employees, agents, or independent contractors of the Company to leave the employ
of the Company for a competitive company or business. However, Executive may
solicit any employee, agent or independent contractor who voluntarily terminates
his or her employment with the Company after a period of 120 days has elapsed
since the termination date of such employee, agent or independent contractor.
None of the foregoing shall be deemed a waiver of any and all rights and
remedies the Company may have under applicable law.
III.5 Right to Injunctive and Equitable Relief. Executive's
----------------------------------------
obligations not to disclose or use Confidential Information and to refrain from
the solicitations described in this Article III are of a special and unique
character which gives them a peculiar value. The Company cannot be reasonably
or adequately compensated for damages in an action at law in the event Executive
breaches such obligations. Therefore, Executive expressly agrees that the
Company shall be entitled to injunctive and other equitable relief without bond
or other security in the event of such breach in addition to any other rights or
remedies which the Company may possess or be entitled to pursue. Furthermore,
the obligations of Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or Confidential Information.
III.6 Survival of Obligations. Executive agrees that the terms of
-----------------------
this Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
ARTICLE IV
TERMINATION
-----------
IV.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
(a) Cause. "Cause" shall include the following:
-----
3
<PAGE>
(i) personal dishonesty or willful misconduct by Executive;
(ii) a breach of Executive's fiduciary duties to the Company
which involves personal profit or benefit to Executive;
(iii) willful violation and conviction of any law, rule or
regulation (other than traffic violations or similar offenses) or of
any final cease and desist order issued by any financial institution
regulatory authority against the Company; or
(iv) a material breach of this Agreement by Executive.
(b) Good Reason. "Good Reason" shall mean voluntary termination
-----------
as a result of:
(i) the assignment to Executive of duties inconsistent with
the position and status of Executive as set forth in this Agreement
without Executive's prior written consent;
(ii) a substantial alteration in the nature, status or
prestige of Executive's responsibilities or a change in Executive's
title or reporting level from that set forth in this Agreement;
(iii) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles from
the location of such offices or businesses as of the date of this
Agreement;
(iv) a reduction by the Company of Executive's Base Salary;
(v) a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume and perform
this Agreement; or
(vi) an occurrence of a Change of Control Event. A "Change
of Control Event" shall mean and shall be deemed to have taken place
if any person or entity or group of affiliated persons or entities,
including a group which is deemed a "person" by Section 13(d)(3) of
the Securities Exchange Act of 1934, after the effective date of this
Agreement, acquires in one or more transactions ownership of 25% or
more of the outstanding shares of equity entitled to vote in the
election of directors of the Company without first receiving the
approval of the Company's then existing Board of Directors. As used
herein, "ownership" means beneficial or record ownership, directly or
indirectly, other than (a) by a person owning such shares merely of
record (such as a member of a securities exchange, a nominee, or a
securities depository system, (b) by a person as a bona fide pledgee
of shares prior to a default and determination to exercise powers as
an owner of the shares, or (c) by a person who is not required to file
statements on
4
<PAGE>
Schedule 13D by virtue of Rule 13d-1(b) of the Securities and Exchange
Commission under the Securities Exchange Act of 1934. Without
limitation, the right to acquire beneficial or record ownership shall
not of itself constitute ownership of shares.
(c) Disability. "Disability" shall mean a physical or mental
----------
incapacity as a result of which Executive becomes unable to continue the
proper performance of his duties hereunder (reasonable absences because of
sickness for up to two (2) consecutive months excepted; provided, however,
that any new period of incapacity or absence shall be deemed to be part of
a prior period of incapacity or absence if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity or
absence and the incapacity or absence is determined by the Company's Board
of Directors, in good faith, to be related to the prior incapacity or
absence). A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and
Executive or in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
and the two (2) doctors so nominated shall select a third doctor, who shall
make the determination as to Disability.
IV.2 Termination by Company. The Company may terminate Executive's
----------------------
employment hereunder immediately for Cause. Subject to the other provisions
contained in this Agreement, the Company may terminate this Agreement for any
reason other than Cause upon thirty (30) days' written notice to Executive. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.3 Termination by Executive. Executive may terminate his
------------------------
employment hereunder upon thirty (30) days' written notice to the Company. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.4 Death or Disability of Executive. Executive's employment
--------------------------------
hereunder shall terminate immediately upon the death or Disability of Executive.
IV.5 Severance Benefits Received Upon Termination.
--------------------------------------------
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement pursuant to Section 4.3 other
than for Good Reason, then the Company shall pay Executive his Base Salary
through the Effective Date of such termination plus credit for any vacation
earned but not taken, and the Company shall thereafter have no further
obligations to Executive under this Agreement.
(b) If Executive's employment is terminated by the Company
without
5
<PAGE>
Cause, or Executive terminates this Agreement for Good Reason, then
the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
Base Salary for a period equal to the longer of the remainder of the
term of this Agreement or six (6) months, said sum to be paid semi-
monthly in equal installments at the times salary payments are usually
made; and
(ii) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period equal to the
longer of the remainder of the term of this Agreement or six (6)
months, subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits will
be in accordance with COBRA.
(c) If Executive's employment is terminated by the Company as a
result of Disability, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period equal to one month for each full year
Executive has been employed by the Company, up to a maximum of
eighteen (18) months, said sum to be paid monthly in equal
installments at the times salary payments are usually made; and
(ii) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period of one month
for each full year Executive has been employed by the Company, up to a
maximum of eighteen (18) months, subject to any employee contribution
provisions as defined in the Company Benefit Plans. Subsequent health
insurance benefits will be in accordance with COBRA.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall provide Executive's spouse or
estate health insurance coverage as then in effect for Executive, his
spouse and dependent children for a period of six (6) months, subject to
any employee contribution provisions as defined in the Company Benefit
Plans. Health insurance benefits subsequent to the salary continuation
period will be in accordance with COBRA.
(e) In the event Executive's employment is terminated for Good
Reason pursuant to either Sections 4.1(b)(v) or 4.1(b)(vi), then in
addition to those payments required by Section 4.5(b) above, the Company
shall also provide to Executive a lump sum payment within thirty (30) days
of the Effective Date equal to twice Executive's Base Salary, or $500,000.
(f) This Section 4.5(f) is intended to put Executive in the same
economic position as Executive would have had no Section 4999 Taxes and
Expenses (as defined below) been imposed upon or incurred as a result of
any payment, distribution,
6
<PAGE>
benefit or transfer (each a "Payment" and collectively the "Payments") made
pursuant to the terms of this Agreement or otherwise. In the event it is
determined that any Payments to or for the benefit of Executive is or was
subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended, any successor provision, or any comparable
provision of state or local income tax law, or any interest, penalties,
additions to tax, or costs are or were incurred by Executive with respect
to any such excise taxes (such taxes, penalties, interest, additions to tax
and costs (including professional fees) are hereinafter referred to as
"Section 4999 Taxes and Expenses"), then within ten (10) days after such
determination, the Company shall pay to Executive an additional cash
payment, which after payment of or withholding for any taxes (including,
without limitation, any excise and income taxes), interest, penalties,
additions to tax or costs imposed or incurred with respect to such
additional cash payment, is equal to the Section 4999 Taxes and Expenses.
The determination that a Payment is subject to Section 4999 Taxes and
Expenses shall be made in writing by a certified public accounting firm
selected by Executive.
ARTICLE V
GENERAL PROVISIONS
------------------
V.1 Notice. For purposes of this Agreement, notices and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company: St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
Attn: Chief Executive Officer
With a copy to: David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660
If to Executive: David C. Frankel
c/o St. John Knits, Inc.
2382 Morse Avenue
Irvine, California 92612
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
V.2 No Waivers. No provision of this Agreement may be modified,
----------
waived or
7
<PAGE>
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
V.3 Beneficial Interests. This Agreement shall inure to the benefit
--------------------
of and be enforceable by Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee, legatee, or
other designee or, if there be no such designee, to Executive's estate.
V.4 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
V.5 Severability or Partial Invalidity. The invalidity or
----------------------------------
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
V.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
V.7 Legal Fees and Expenses. Should any party institute any action
-----------------------
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
in connection with such action or proceeding.
V.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement is intended
by the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
V.9 Assignment. This Agreement and the rights, duties, and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the other party and any attempted assignment or
delegation without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing provisions of this Section 5.9, the Company may
assign or delegate its rights, duties, and obligations hereunder to any
Affiliate or to any person or entity which succeeds to all or substantially all
of the business of the Company
8
<PAGE>
through merger, consolidation, reorganization, or other business combination or
by acquisition of all or substantially all of the assets of the Company.
V.10 Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this Agreement shall be settled, at the
request of either party, by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof, subject to the following terms, conditions
and exceptions:
(a) Notice of the demand for arbitration shall be filed in
writing with the other party and with the AAA. There shall be a panel of three
(3) arbitrators whose selection shall be made in accordance with the procedures
then existing for the selection of such arbitrators by the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) Except as otherwise provided in Section 5.7 hereof, the
costs and fees of the arbitration shall be allocated by the arbitrators.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
St. John Knits, Inc.,
a California corporation
By: /s/ BOB GRAY
-----------------------------------
Bob Gray
Chief Executive Officer
"Executive"
/s/ DAVID FRANKEL
----------------------------------------
David C. Frankel
9
<PAGE>
EXHIBIT 10.8
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This Amended and Restated Employment Agreement ("Agreement"), dated as
of July 14, 1998, is by and between St. John Knits, Inc., a California
corporation ("Company"), and Karla R. Guyer ("Executive"), and amends and
restates the terms of that certain Employment Agreement, dated as of January 1,
1998, between the Company and Executive. In consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows.
ARTICLE I
EMPLOYMENT
----------
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
I.1 Employment. The Company hereby employs Executive, and Executive
----------
agrees to serve as the Company's Senior Vice President-Marketing during the term
of this Agreement, and shall serve at the discretion of the Company's Board of
Directors. Executive agrees to devote substantially her full business time and
attention and best efforts to the affairs of the Company during the term of this
Agreement.
I.2 Term. The employment of Executive by the Company under the terms
----
and conditions of this Agreement will commence as of January 1, 1998 and will
continue for a period of one (1) year unless renewed or terminated sooner in
accordance with the provisions hereof. This Agreement shall be automatically
renewed for continuous one year periods (each being an "Employment Period")
unless written notice is given by one party to the other at least thirty (30)
days' prior to the end of the then current Employment Period of such parties
election not to renew this Agreement, thereby causing this Agreement to
terminate at the end of such Employment Period.
I.3 Termination of Prior Agreement. Immediately upon the
------------------------------
commencement of Executive's employment pursuant to the terms of this Agreement,
that certain Employment Agreement by and between Executive and the Company dated
as of January 1, 1997, shall terminate and shall be of no further force or
effect.
ARTICLE II
COMPENSATION
------------
II.1 Annual Salary. During the employment of Executive, the Company
-------------
shall pay to Executive a base salary at the annual rate of $225,000 (the "Base
Salary"). The Base Salary shall be payable in substantially equal semi-monthly
installments.
1
<PAGE>
II.2 Reimbursement of Expenses. Executive shall be entitled to
-------------------------
receive prompt reimbursement of all reasonable expenses incurred by Executive in
performing services hereunder, including all expenses of travel, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
II.3 Automobile Allowance. The Company shall provide Executive with
--------------------
an automobile for use by Executive in the performance of Executive's duties
hereunder. The Company shall also pay directly, or reimburse Executive for, all
reasonable costs and expenses incurred by Executive in connection with the
operation and maintenance of the automobile.
II.4 Benefits. Executive shall be entitled to participate in and be
--------
covered by all health, insurance, pension and other employee plans and benefits
currently established for the employees of the Company (collectively referred to
as the "Company Benefit Plans") on at least the same terms as other employees of
the Company, subject to meeting applicable eligibility requirements.
II.5 Vacations and Holidays. During Executive's employment with the
----------------------
Company, Executive shall be entitled to an annual vacation leave of three (3)
weeks at full pay, or such greater vacation benefits as may be provided for by
the Company's vacation policies applicable to senior executives. Executive
shall be entitled to such holidays as are established by the Company for all
employees.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
---------------------------------
III.1 Confidentiality. Executive will not during Executive's
---------------
employment by the Company or thereafter at any time disclose, directly or
indirectly, to any person or entity or use for Executive's own benefit any trade
secrets or confidential information relating to the Company's business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company or any of its clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company.
III.2 Return of Confidential Material. Executive shall promptly
-------------------------------
deliver to the Company on termination of Executive's employment with the
Company, whether or not for Cause and whatever the reason, or at any time the
Company may so request, all memoranda, notes, records, reports, manuals,
drawings, blueprints, Confidential Information and any other documents of a
confidential nature belonging to the Company, including all copies of such
materials which Executive may then possess or have under Executive's control.
Upon termination of Executive's employment by the Company, Executive shall not
take any document,
2
<PAGE>
data, or other material of any nature containing or pertaining to the
proprietary information of the Company.
III.3 Prohibition on Solicitation of Customers. During the term of
----------------------------------------
Executive's employment with the Company and for a period of one (1) year
thereafter Executive shall not, directly or indirectly, either for Executive or
for any other person or entity, solicit any person or entity to terminate such
person's or entity's contractual and/or business relationship with the Company,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship. None of the foregoing shall be deemed a waiver
of any and all rights and remedies the Company may have under applicable law.
III.4 Prohibition on Solicitation of Employees, Agents or Independent
---------------------------------------------------------------
Contractors After Termination. During the term of Executive's employment with
- -----------------------------
the Company and for a period of one (l) year following the termination of
Executive's employment with the Company, Executive will not solicit any of the
employees, agents, or independent contractors of the Company to leave the employ
of the Company for a competitive company or business. However, Executive may
solicit any employee, agent or independent contractor who voluntarily terminates
his or her employment with the Company after a period of 120 days has elapsed
since the termination date of such employee, agent or independent contractor.
None of the foregoing shall be deemed a waiver of any and all rights and
remedies the Company may have under applicable law.
III.5 Right to Injunctive and Equitable Relief. Executive's
----------------------------------------
obligations not to disclose or use Confidential Information and to refrain from
the solicitations described in this Article III are of a special and unique
character which gives them a peculiar value. The Company cannot be reasonably
or adequately compensated for damages in an action at law in the event Executive
breaches such obligations. Therefore, Executive expressly agrees that the
Company shall be entitled to injunctive and other equitable relief without bond
or other security in the event of such breach in addition to any other rights or
remedies which the Company may possess or be entitled to pursue. Furthermore,
the obligations of Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or Confidential Information.
III.6 Survival of Obligations. Executive agrees that the terms of
-----------------------
this Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
ARTICLE IV
TERMINATION
-----------
IV.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
3
<PAGE>
(a) Cause. "Cause" shall include the following:
-----
(i) personal dishonesty or willful misconduct by Executive;
(ii) a breach of Executive's fiduciary duties to the Company
which involves personal profit or benefit to Executive;
(iii) willful violation and conviction of any law, rule or
regulation (other than traffic violations or similar offenses) or of
any final cease and desist order issued by any financial institution
regulatory authority against the Company; or
(iv) a material breach of this Agreement by Executive.
(b) Good Reason. "Good Reason" shall mean voluntary termination
-----------
as a result of:
(i) the assignment to Executive of duties inconsistent with
the position and status of Executive as set forth in this Agreement
without Executive's prior written consent;
(ii) a substantial alteration in the nature, status or
prestige of Executive's responsibilities or a change in Executive's
title or reporting level from that set forth in this Agreement;
(iii) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles from
the location of such offices or businesses as of the date of this
Agreement;
(iv) a reduction by the Company of Executive's Base Salary;
(v) a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume and perform
this Agreement; or
(vi) an occurrence of a Change of Control Event. A "Change
of Control Event" shall mean and shall be deemed to have taken place
if any person or entity or group of affiliated persons or entities,
including a group which is deemed a "person" by Section 13(d)(3) of
the Securities Exchange Act of 1934, after the effective date of this
Agreement, acquires in one or more transactions ownership of 25% or
more of the outstanding shares of equity entitled to vote in the
election of directors of the Company without first receiving the
approval of the Company's then existing Board of Directors. As used
herein, "ownership" means beneficial or record ownership, directly or
indirectly, other than (a) by a person owning such shares merely of
record (such as a member of a securities exchange, a nominee, or a
securities depository system, (b) by a person as a bona
4
<PAGE>
fide pledgee of shares prior to a default and determination to
exercise powers as an owner of the shares, or (c) by a person who is
not required to file statements on Schedule 13D by virtue of Rule 13d-
1(b) of the Securities and Exchange Commission under the Securities
Exchange Act of 1934. Without limitation, the right to acquire
beneficial or record ownership shall not of itself constitute
ownership of shares.
(c) Disability. "Disability" shall mean a physical or mental
----------
incapacity as a result of which Executive becomes unable to continue the
proper performance of her duties hereunder (reasonable absences because of
sickness for up to two (2) consecutive months excepted; provided, however,
that any new period of incapacity or absence shall be deemed to be part of
a prior period of incapacity or absence if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity or
absence and the incapacity or absence is determined by the Company's Board
of Directors, in good faith, to be related to the prior incapacity or
absence). A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and
Executive or in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
and the two (2) doctors so nominated shall select a third doctor, who shall
make the determination as to Disability.
IV.2 Termination by Company. The Company may terminate Executive's
----------------------
employment hereunder immediately for Cause. Subject to the other provisions
contained in this Agreement, the Company may terminate this Agreement for any
reason other than Cause upon thirty (30) days' written notice to Executive. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.3 Termination by Executive. Executive may terminate her
------------------------
employment hereunder upon thirty (30) days' written notice to the Company. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.4 Death or Disability of Executive. Executive's employment
--------------------------------
hereunder shall terminate immediately upon the death or Disability of Executive.
IV.5 Severance Benefits Received Upon Termination.
--------------------------------------------
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement pursuant to Section 4.3 other
than for Good Reason, then the Company shall pay Executive her Base Salary
through the Effective Date of such termination plus credit for any vacation
earned but not taken, and the Company shall thereafter have no further
obligations to Executive under this Agreement.
5
<PAGE>
(b) If Executive's employment is terminated by the Company
without Cause, or Executive terminates this Agreement for Good Reason, then
the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
Base Salary for a period equal to the longer of the remainder of the
term of this Agreement or six (6) months, said sum to be paid semi-
monthly in equal installments at the times salary payments are usually
made; and
(ii) health insurance coverage as then in effect for
Executive, her spouse and dependent children for a period equal to the
longer of the remainder of the term of this Agreement or six (6)
months, subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits will
be in accordance with COBRA.
(c) If Executive's employment is terminated by the Company as a
result of Disability, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period equal to one month for each full year
Executive has been employed by the Company, up to a maximum of
eighteen (18) months, said sum to be paid monthly in equal
installments at the times salary payments are usually made; and
(ii) health insurance coverage as then in effect for
Executive, her spouse and dependent children for a period of one month
for each full year Executive has been employed by the Company, up to a
maximum of eighteen (18) months, subject to any employee contribution
provisions as defined in the Company Benefit Plans. Subsequent health
insurance benefits will be in accordance with COBRA.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall provide Executive's spouse or
estate health insurance coverage as then in effect for Executive, her
spouse and dependent children for a period of six (6) months, subject to
any employee contribution provisions as defined in the Company Benefit
Plans. Health insurance benefits subsequent to the salary continuation
period will be in accordance with COBRA.
(e) In the event Executive's employment is terminated for Good
Reason pursuant to either Sections 4.1(b)(v) or 4.1(b)(vi), then in
addition to those payments required by Section 4.5(b) above, the Company
shall also provide to Executive a lump sum payment within thirty (30) days
of the Effective Date equal to twice Executive's Base Salary, or $450,000.
(f) This Section 4.5(f) is intended to put Executive in the same
6
<PAGE>
economic position as Executive would have had no Section 4999 Taxes and
Expenses (as defined below) been imposed upon or incurred as a result of
any payment, distribution, benefit or transfer (each a "Payment" and
collectively the "Payments") made pursuant to the terms of this Agreement
or otherwise. In the event it is determined that any Payments to or for
the benefit of Executive is or was subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, any
successor provision, or any comparable provision of state or local income
tax law, or any interest, penalties, additions to tax, or costs are or were
incurred by Executive with respect to any such excise taxes (such taxes,
penalties, interest, additions to tax and costs (including professional
fees) are hereinafter referred to as "Section 4999 Taxes and Expenses"),
then within ten (10) days after such determination, the Company shall pay
to Executive an additional cash payment, which after payment of or
withholding for any taxes (including, without limitation, any excise and
income taxes), interest, penalties, additions to tax or costs imposed or
incurred with respect to such additional cash payment, is equal to the
Section 4999 Taxes and Expenses. The determination that a Payment is
subject to Section 4999 Taxes and Expenses shall be made in writing by a
certified public accounting firm selected by Executive.
ARTICLE V
GENERAL PROVISIONS
------------------
V.1 Notice. For purposes of this Agreement, notices and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company: St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
Attn: Chief Executive Officer
With a copy to: David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660
If to Executive: Karla R. Guyer
c/o St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
7
<PAGE>
V.2 No Waivers. No provision of this Agreement may be modified,
----------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
V.3 Beneficial Interests. This Agreement shall inure to the benefit
--------------------
of and be enforceable by Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still payable to her
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee, legatee, or
other designee or, if there be no such designee, to Executive's estate.
V.4 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
V.5 Severability or Partial Invalidity. The invalidity or
----------------------------------
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
V.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
V.7 Legal Fees and Expenses. Should any party institute any action
-----------------------
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
in connection with such action or proceeding.
V.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement is intended
by the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
V.9 Assignment. This Agreement and the rights, duties, and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the other party and any attempted assignment or
delegation without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing provisions of this Section 5.9, the
8
<PAGE>
Company may assign or delegate its rights, duties, and obligations hereunder to
any Affiliate or to any person or entity which succeeds to all or substantially
all of the business of the Company through merger, consolidation,
reorganization, or other business combination or by acquisition of all or
substantially all of the assets of the Company.
V.10 Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this Agreement shall be settled, at the
request of either party, by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof, subject to the following terms, conditions
and exceptions:
(a) Notice of the demand for arbitration shall be filed in writing
with the other party and with the AAA. There shall be a panel of three (3)
arbitrators whose selection shall be made in accordance with the procedures then
existing for the selection of such arbitrators by the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) Except as otherwise provided in Section 5.7 hereof, the costs and
fees of the arbitration shall be allocated by the arbitrators.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
St. John Knits, Inc.,
a California corporation
By: /s/ BOB GRAY
----------------------
Bob Gray
Chief Executive Officer
"Executive"
/s/ KARLA R. GUYER
--------------------------
Karla R. Guyer
9
<PAGE>
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement ("Agreement") is dated as of July 14, 1998,
between St. John Knits, Inc., a California corporation ("Company"), and Bruce
Fetter ("Executive"). In consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows.
ARTICLE I
EMPLOYMENT
----------
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
I.1 Employment. The Company hereby employs Executive, and Executive
----------
agrees to serve as the Company's Chief Operating Officer during the term of this
Agreement, and shall serve at the discretion of the Company's Board of
Directors. Executive agrees to devote substantially his full business time and
attention and best efforts to the affairs of the Company during the term of this
Agreement.
I.2 Term. The employment of Executive by the Company under the terms
----
and conditions of this Agreement will commence as of July 14, 1998 and will
continue until December 31, 1998, unless renewed or terminated sooner in
accordance with the provisions hereof. This Agreement shall be automatically
renewed for continuous one year (i.e. January 1, 1999 through December 31, 1999
being the first such year) periods (each being an "Employment Period") unless
written notice is given by one party to the other at least thirty (30) days'
prior to the end of the then current Employment Period of such parties election
not to renew this Agreement, thereby causing this Agreement to terminate at the
end of such Employment Period.
I.3 Termination of Prior Agreement. Immediately upon the
------------------------------
commencement of Executive's employment pursuant to the terms of this Agreement,
that certain Letter Employment Agreement by and between Executive and the
Company dated November 21, 1996, shall terminate and shall be of no further
force or effect.
ARTICLE II
COMPENSATION
------------
II.1 Annual Salary. During the employment of Executive, the Company
-------------
shall pay to Executive a base salary at the annual rate of $250,000 (the "Base
Salary"). The Base Salary shall be payable in substantially equal semi-monthly
installments.
II.2 Reimbursement of Expenses. Executive shall be entitled to
-------------------------
receive
1
<PAGE>
prompt reimbursement of all reasonable expenses incurred by Executive in
performing services hereunder, including all expenses of travel, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
II.3 Automobile Allowance. The Company shall pay directly, or
--------------------
reimburse Executive for, all reasonable costs and expenses incurred by Executive
in connection with the operation and maintenance of an automobile (i.e. car
insurance, car license and general upkeep).
II.4 Benefits. Executive shall be entitled to participate in and be
--------
covered by all health, insurance, pension and other employee plans and benefits
currently established for the employees of the Company (collectively referred to
as the "Company Benefit Plans") on at least the same terms as other employees of
the Company, subject to meeting applicable eligibility requirements.
II.5 Vacations and Holidays. During Executive's employment with the
----------------------
Company, Executive shall be entitled to an annual vacation leave of three (3)
weeks at full pay, or such greater vacation benefits as may be provided for by
the Company's vacation policies applicable to senior executives. Executive
shall be entitled to such holidays as are established by the Company for all
employees.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
---------------------------------
III.1 Confidentiality. Executive will not during Executive's
---------------
employment by the Company or thereafter at any time disclose, directly or
indirectly, to any person or entity or use for Executive's own benefit any trade
secrets or confidential information relating to the Company's business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company or any of its clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company.
III.2 Return of Confidential Material. Executive shall promptly
-------------------------------
deliver to the Company on termination of Executive's employment with the
Company, whether or not for Cause and whatever the reason, or at any time the
Company may so request, all memoranda, notes, records, reports, manuals,
drawings, blueprints, Confidential Information and any other documents of a
confidential nature belonging to the Company, including all copies of such
materials which Executive may then possess or have under Executive's control.
Upon termination of Executive's employment by the Company, Executive shall not
take any document, data, or other material of any nature containing or
pertaining to the proprietary information of the Company.
2
<PAGE>
III.3 Prohibition on Solicitation of Customers. During the term of
----------------------------------------
Executive's employment with the Company and for a period of one (1) year
thereafter Executive shall not, directly or indirectly, either for Executive or
for any other person or entity, solicit any person or entity to terminate such
person's or entity's contractual and/or business relationship with the Company,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship. None of the foregoing shall be deemed a waiver
of any and all rights and remedies the Company may have under applicable law.
III.4 Prohibition on Solicitation of Employees, Agents or Independent
---------------------------------------------------------------
Contractors After Termination. During the term of Executive's employment with
- -----------------------------
the Company and for a period of one (l) year following the termination of
Executive's employment with the Company, Executive will not solicit any of the
employees, agents, or independent contractors of the Company to leave the employ
of the Company for a competitive company or business. However, Executive may
solicit any employee, agent or independent contractor who voluntarily terminates
his or her employment with the Company after a period of 120 days has elapsed
since the termination date of such employee, agent or independent contractor.
None of the foregoing shall be deemed a waiver of any and all rights and
remedies the Company may have under applicable law.
III.5 Right to Injunctive and Equitable Relief. Executive's
----------------------------------------
obligations not to disclose or use Confidential Information and to refrain from
the solicitations described in this Article III are of a special and unique
character which gives them a peculiar value. The Company cannot be reasonably
or adequately compensated for damages in an action at law in the event Executive
breaches such obligations. Therefore, Executive expressly agrees that the
Company shall be entitled to injunctive and other equitable relief without bond
or other security in the event of such breach in addition to any other rights or
remedies which the Company may possess or be entitled to pursue. Furthermore,
the obligations of Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or Confidential Information.
III.6 Survival of Obligations. Executive agrees that the terms of
-----------------------
this Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
ARTICLE IV
TERMINATION
-----------
IV.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
(a) Cause. "Cause" shall include the following:
-----
3
<PAGE>
(i) personal dishonesty or willful misconduct by Executive;
(ii) a breach of Executive's fiduciary duties to the Company
which involves personal profit or benefit to Executive;
(iii) willful violation and conviction of any law, rule or
regulation (other than traffic violations or similar offenses) or of
any final cease and desist order issued by any financial institution
regulatory authority against the Company; or
(iv) a material breach of this Agreement by Executive.
(b) Good Reason. "Good Reason" shall mean voluntary termination
-----------
as a result of:
(i) the assignment to Executive of duties inconsistent with
the position and status of Executive as set forth in this Agreement
without Executive's prior written consent;
(ii) a substantial alteration in the nature, status or
prestige of Executive's responsibilities or a change in Executive's
title or reporting level from that set forth in this Agreement;
(iii) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles from
the location of such offices or businesses as of the date of this
Agreement;
(iv) a reduction by the Company of Executive's Base Salary;
(v) a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume and perform
this Agreement; or
(vi) an occurrence of a Change of Control Event. A "Change
of Control Event" shall mean and shall be deemed to have taken place
if any person or entity or group of affiliated persons or entities,
including a group which is deemed a "person" by Section 13(d)(3) of
the Securities Exchange Act of 1934, after the effective date of this
Agreement, acquires in one or more transactions ownership of 25% or
more of the outstanding shares of equity entitled to vote in the
election of directors of the Company without first receiving the
approval of the Company's then existing Board of Directors. As used
herein, "ownership" means beneficial or record ownership, directly or
indirectly, other than (a) by a person owning such shares merely of
record (such as a member of a securities exchange, a nominee, or a
securities depository system, (b) by a person as a bona fide pledgee
of shares prior to a default and determination to exercise powers as
an owner of the shares, or (c) by a person who is not required to file
statements on
4
<PAGE>
Schedule 13D by virtue of Rule 13d-1(b) of the Securities and Exchange
Commission under the Securities Exchange Act of 1934. Without
limitation, the right to acquire beneficial or record ownership shall
not of itself constitute ownership of shares.
(c) Disability. "Disability" shall mean a physical or mental
----------
incapacity as a result of which Executive becomes unable to continue the
proper performance of his duties hereunder (reasonable absences because of
sickness for up to two (2) consecutive months excepted; provided, however,
that any new period of incapacity or absence shall be deemed to be part of
a prior period of incapacity or absence if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity or
absence and the incapacity or absence is determined by the Company's Board
of Directors, in good faith, to be related to the prior incapacity or
absence). A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and
Executive or in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
and the two (2) doctors so nominated shall select a third doctor, who shall
make the determination as to Disability.
IV.2 Termination by Company. The Company may terminate Executive's
----------------------
employment hereunder immediately for Cause. Subject to the other provisions
contained in this Agreement, the Company may terminate this Agreement for any
reason other than Cause upon thirty (30) days' written notice to Executive. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.3 Termination by Executive. Executive may terminate his
------------------------
employment hereunder upon thirty (30) days' written notice to the Company. The
effective date of termination ("Effective Date") shall be considered to be
thirty (30) days subsequent to written notice of termination; however, the
Company may elect to have Executive leave the Company immediately.
IV.4 Death or Disability of Executive. Executive's employment
--------------------------------
hereunder shall terminate immediately upon the death or Disability of Executive.
IV.5 Severance Benefits Received Upon Termination.
--------------------------------------------
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement pursuant to Section 4.3 other
than for Good Reason, then the Company shall pay Executive his Base Salary
through the Effective Date of such termination plus credit for any vacation
earned but not taken, and the Company shall thereafter have no further
obligations to Executive under this Agreement.
5
<PAGE>
(b) If Executive's employment is terminated by the Company
without Cause, or Executive terminates this Agreement for Good Reason, then
the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period equal to the longer of the remainder of
the term of this Agreement or six (6) months, said sum to be paid
semi-monthly in equal installments at the times salary payments are
usually made; and
(ii) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period equal to the
longer of the remainder of the term of this Agreement or six (6)
months, subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits will
be in accordance with COBRA.
(c) If Executive's employment is terminated by the Company as a
result of Disability, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period equal to one month for each full year
Executive has been employed by the Company, up to a maximum of
eighteen (18) months, said sum to be paid monthly in equal
installments at the times salary payments are usually made; and
(ii) health insurance coverage as then in effect for
Executive, his spouse and dependent children for a period of one month
for each full year Executive has been employed by the Company, up to a
maximum of eighteen (18) months, subject to any employee contribution
provisions as defined in the Company Benefit Plans. Subsequent health
insurance benefits will be in accordance with COBRA.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall provide Executive's spouse or
estate health insurance coverage as then in effect for Executive, his
spouse and dependent children for a period of six (6) months, subject to
any employee contribution provisions as defined in the Company Benefit
Plans. Health insurance benefits subsequent to the salary continuation
period will be in accordance with COBRA.
(e) In the event Executive's employment is terminated for Good
Reason pursuant to either Sections 4.1(b)(v) or 4.1(b)(vi), then in
addition to those payments required by Section 4.5(b) above, the Company
shall also provide to Executive a lump sum payment within thirty (30) days
of the Effective Date equal to twice Executive's Base Salary, or $500,000.
(f) This Section 4.5(f) is intended to put Executive in the same
economic position as Executive would have had no Section 4999 Taxes and
Expenses (as
6
<PAGE>
defined below) been imposed upon or incurred as a result of any payment,
distribution, benefit or transfer (each a "Payment" and collectively the
"Payments") made pursuant to the terms of this Agreement or otherwise. In
the event it is determined that any Payments to or for the benefit of
Executive is or was subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended, any successor provision, or
any comparable provision of state or local income tax law, or any interest,
penalties, additions to tax, or costs are or were incurred by Executive
with respect to any such excise taxes (such taxes, penalties, interest,
additions to tax and costs (including professional fees) are hereinafter
referred to as "Section 4999 Taxes and Expenses"), then within ten (10)
days after such determination, the Company shall pay to Executive an
additional cash payment, which after payment of or withholding for any
taxes (including, without limitation, any excise and income taxes),
interest, penalties, additions to tax or costs imposed or incurred with
respect to such additional cash payment, is equal to the Section 4999 Taxes
and Expenses. The determination that a Payment is subject to Section 4999
Taxes and Expenses shall be made in writing by a certified public
accounting firm selected by Executive.
ARTICLE V
GENERAL PROVISIONS
------------------
V.1 Notice. For purposes of this Agreement, notices and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company: St. John Knits, Inc.
17422 Derian Avenue
Irvine, CA 92614
Attn: Chief Executive Officer
With a copy to: David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660
If to Executive: Bruce Fetter
c/o St. John Knits, Inc.
2722 Michelson Drive
Irvine, California 92612
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
7
<PAGE>
V.2 No Waivers. No provision of this Agreement may be modified,
----------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
V.3 Beneficial Interests. This Agreement shall inure to the benefit
--------------------
of and be enforceable by Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee, legatee, or
other designee or, if there be no such designee, to Executive's estate.
V.4 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
V.5 Severability or Partial Invalidity. The invalidity or
----------------------------------
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
V.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
V.7 Legal Fees and Expenses. Should any party institute any action
-----------------------
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
in connection with such action or proceeding.
V.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement is intended
by the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
V.9 Assignment. This Agreement and the rights, duties, and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the other party and any attempted assignment or
delegation without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing provisions of this Section 5.9, the Company may
assign or delegate its rights, duties, and obligations hereunder to any
Affiliate or
8
<PAGE>
to any person or entity which succeeds to all or substantially all of the
business of the Company through merger, consolidation, reorganization, or other
business combination or by acquisition of all or substantially all of the assets
of the Company.
V.10 Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this Agreement shall be settled, at the
request of either party, by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof, subject to the following terms, conditions
and exceptions:
(a) Notice of the demand for arbitration shall be filed in
writing with the other party and with the AAA. There shall be a panel of three
(3) arbitrators whose selection shall be made in accordance with the procedures
then existing for the selection of such arbitrators by the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) Except as otherwise provided in Section 5.7 hereof, the costs
and fees of the arbitration shall be allocated by the arbitrators.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
St. John Knits, Inc.,
a California corporation
By: /s/ BOB GRAY
-----------------------
Bob Gray
Chief Executive Officer
"Executive"
/s/ BRUCE FETTER
----------------------------
Bruce Fetter
9
<PAGE>
EXHIBIT 10.10
===============================================================================
[LOGO OF BANK OF AMERICA] Amendment to Documents
- -------------------------------------------------------------------------------
AMENDMENT NO. 6 TO BUSINESS LOAN AGREEMENT
This Amendment No.6 (the "Amendment") dated as of August 27, 1998, is between
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Bank") and ST. JOHN
KNITS, INC. (the "Borrower").
RECITALS
--------
A. The Bank and the Borrower entered into a certain Business Loan Agreement
dated as of December 15, 1995, as previously amended (the "Agreement").
B. The Bank and the Borrower desire to further amend the Agreement.
AGREEMENT
---------
1. DEFINITIONS. Capitalized terms used but not defined in this Amendment
-----------
shall have the meaning given to them in the Agreement.
2. AMENDMENTS. The Agreement is hereby amended as follows:
----------
2.1 In Paragraph 1.7(i) of the Agreement is amended to read in its
entirety as follows:
"(i) commercial letters of credit with a maximum maturity of 180
days but not to extend more than 60 days beyond the Expiration
Date. Each commercial letter of credit will require drafts
payable at sight or up to 90 days after sight."
3. EFFECT OF AMENDMENT. Except as provided in this Amendment, all of the
-------------------
terms and conditions of the Agreement shall remain in full force and effect.
This Amendment is executed as of the date stated at the beginning of
this Amendment.
BANK OF AMERICA
National Trust and Savings Association St. John Knits, Inc.
X /s/ ARTHUR P. CARTER X /s/ ROGER G. RUPPERT
- -------------------------------------- ------------------------------
By: Arthur P. Carter By: Roger G. Ruppert
Title: Vice President Title: Senior Vice President-
Finance and Chief
Financial Officer
- ------------------------------------------------------------------------------
-1-
<PAGE>
EXHIBIT 10.11
- -------------------------------------------------------------------------------
[LOGO OF BANK OF AMERICA] Amendment to Documents
- -------------------------------------------------------------------------------
AMENDMENT NO. 7 TO BUSINESS LOAN AGREEMENT
This Amendment No. 7 (the "Amendment") dated as of August 18, 1998, is
between Bank of America National Trust and Savings Association (the "Bank") and
St. John Knits, Inc. (the "Borrower").
RECITALS
--------
A. The Bank and the Borrower entered into a certain Business Loan
Agreement dated as of December 15, 1995, as previously amended (the
"Agreement").
B. The Bank and the Borrower desire to further amend the Agreement.
AGREEMENT
---------
1. Definitions. Capitalized terms used but not defined in this Amendment
-----------
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
----------
2.1 A new Paragraph 7.7(f) is added to the Agreement, which reads in
its entirety as follows:
"(f) Additional contingent debts guaranteeing the debts of the
Borrower's majority owned subsidiaries which do not exceed
a total principal amount of One Million Five Hundred
Thousand Dollars ($1,500,000)."
2.2 In Paragraph 7.9 of the Agreement, the amount "Twenty-Five
Million Dollars ($25,000,000)" is substituted for the amount
"Twenty-One Million Dollars ($21,000,000)."
2.3 Paragraph 7.19(c) of the Agreement is amended to read in its
entirety as follows:
"(c) enter into any consolidation, merger, or other combination,
or become a partner in a partnership, a member of a joint
venture, or a member of a limited liability company unless
the Borrower's investment in such transaction is less than
a total principal amount of Two Million Dollars
($2,000,000)."
3. Effect of Amendment. Except as provided in this Amendment, all of the
-------------------
terms and conditions of the Agreement shall remain in full force and effect.
This Amendment is executed as of the date stated at the beginning of
this Amendment.
<TABLE>
<CAPTION>
Bank of America
National Trust and Savings Association St. John Knits, Inc.
<S> <C>
x /s/ Sally Hoffman x /s/ Roger G. Ruppert
---------------------------------- --------------------------------
By: Sally Hoffman By: Roger G. Ruppert
Title: Vice President Title: Senior Vice President-Finance
and Chief Financial Officer
</TABLE>
- --------------------------------------------------------------------------------
-1-
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<PAGE>
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<PERIOD-START> NOV-03-1997
<PERIOD-END> AUG-02-1998
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