U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
[X] Quarterly report under Section 13 or 15(d) of the Securities Exchange Act of
1934.
For the quarterly period ended October 26, 1997.
[ ] Transition report under Section 13 or 15(d) of the Securities Exchange Act
of 1934. For the transition period from _________ to __________.
Commission File Number
0-18369
-------
BOSTON RESTAURANT ASSOCIATES, INC.
(Name of Small Business Issuer as Specified in its Charter)
Delaware 61-1162263
(State or Other I.R.S. Employer
Jurisdiction of Identification
Incorporation or No.)
Organization)
999 Broadway
Saugus - Massachusetts
----------------------
(Address of Principal
Executive Offices)
(617)231-7575 01906
(Issuer's Telephone Number (Zip Code)
including area code)
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or
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__
As of December 8, 1997, 5,015,693 shares of the issuer's Common Stock, par value
$.01 per share, were outstanding.
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC.
INDEX
PART I - FINANCIAL INFORMATION Page
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of October 26, 1997 and
April 27, 1997 ................................................... 3
Condensed Consolidated Statements of Operations for the
thirteen weeks and twenty-six weeks ended October 26, 1997 and
October 27, 1996....................................................4
Condensed Consolidated Statements of Cash Flows for the twenty-six
weeks ended October 26, 1997 and October 27, 1996 ................ 5
Notes to Condensed Consolidated Financial Statements ...............6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations .............................................7
PART II - OTHER INFORMATION ..............................................15
SIGNATURES ...........................................................17
2
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONDENSED CONSOLIDATED BALANCE SHEETS
(unaudited)
<TABLE>
<CAPTION>
Oct 26 April 27
1997 1997
---------- ----------
<S> <C> <C>
ASSETS
Current:
Cash and cash equivalents $631,581 $726,054
Accounts receivable $132,707 $69,729
Inventories $214,996 $209,295
Prepaid expenses and other $39,559 $ 27,532
----------- ----------
Total current assets $1,018,843 $1,032,610
Net property and equipment $2,595,290 $2,656,328
Other assets $1,286,833 $944,180
----------- ----------
Total assets $4,900,966 $4,633,118
=========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $401,934 $382,294
Accrued liabilities $634,264 $628,277
Current maturities:
Notes payable-stockholder $4,394 $4,261
Long-term debt $200,000 $200,000
Obligations under capital leases $33,237 $30,850
----------- ----------
Total current liabilities $1,273,829 $1,245,682
Long-term obligations:
Notes payable-stockholder, less
current maturities $123,576 $125,810
Long-term debt, less current maturities $524,998 $625,000
Obligations under capital leases,
less current maturities $121,612 $138,850
Subordinated debentures $1,337,500 $1,118,750
Deferred rent $70,081 $67,024
----------- ----------
Total liabilities $3,451,596 $3,321,116
Stockholders' equity
Common stock, $.01 par value, 25,000,000
shares authorized, 5,015,693 shares issued $50,157 $50,157
Additional paid in capital $9,062,058 $9,043,199
Accumulated deficit ($7,662,845) ($7,781,354)
----------- ----------
Total stockholders' equity $1,449,370 $1,312,002
Total liabilities and stockholders' equity $4,900,966 $4,633,118
=========== ==========
</TABLE>
3
<PAGE>
BOSTON RESTAURANTS ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-six Weeks Ended
Oct 26 Oct 27 Oct 26 Oct 27
1997 1996 1997 1996
------------------ ------------------ ------------------ -----------------
<S> <C> <C> <C> <C>
Sales $2,989,820 $3,013,279 $5,835,705 $5,812,130
Cost of food and beverage $602,586 $691,653 $1,177,093 $1,350,978
Payroll $887,985 $929,774 $1,723,533 $1,787,576
Other operating expenses $1,029,288 $1,048,854 $1,939,639 $1,910,248
General and administrative $347,277 $263,624 $745,426 $588,038
------------------ ------------------ ------------------ -----------------
Income from operations $122,684 $79,374 $250,014 $175,290
Other (income) ($1,594) ($912) ($2,521) ($2,304)
Interest (income) ($5,902) $0 ($15,001) $0
Interest expense $77,503 $33,752 $149,027 $54,798
------------------ ------------------ ------------------ -----------------
Net Income $52,677 $46,534 $118,509 $122,796
================== ================== ================== =================
Income per share $0.01 $0.01 $0.02 $0.02
================== ================== ================== =================
Weighted average number of
common shares outstanding 5,015,693 5,015,293 5,015,693 5,015,293
================== ================== ================== =================
</TABLE>
4
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Twenty-six Weeks Ended
Oct 26 Oct 27
1997 1996
---- ----
<S> <C> <C>
Cash flows provided by operating activities $309,014 $260,265
--------------- ---------------
Cash flows from investing activities:
Capital expenditures ($505,282) ($675,738)
--------------- ---------------
Cash flows used for investing activities ($505,282) ($675,738)
--------------- ---------------
Cash flows from financing activities:
Repayments of long-term debt ($100,002) ($87,601)
Repayments of capital lease obligations ($14,851) $0
Repayments of stockholder loans ($2,102) ($1,991)
Repayment of subordinated debentures $0 (68,666)
Proceeds from subordinated debentures $218,750 $0
Proceeds from long-term debt $0 $571,945
--------------- ---------------
Cash flows provided by financing activities $101,795 $413,687
--------------- ---------------
Increase (decrease) in cash and cash equivalents ($94,473) ($1,786)
Cash and cash equivalents at beginning of period $726,054 $159,564
--------------- ---------------
Cash and cash equivalents at end of period $631,581 $157,778
=============== ===============
</TABLE>
5
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SUMMARY OF ACCOUNTING POLICIES
October 26, 1997
(unaudited)
NATURE OF BUSINESS AND BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-QSB. Accordingly,
they do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the opinion
of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the thirteen-week period and twenty-six week period ended October
26, 1997 are not necessarily indicative of the results that may be expected for
the year ending April 26, 1998. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
Company's annual report on Form 10-KSB, for the year ended April 27, 1997. The
balance sheet at April 27, 1997 has been derived from the audited financial
statements at that date.
The accompanying statements of operations and cash flows for the fiscal 1998
period reflect the consolidated operations and cash flows of two casual dining
Italian restaurants and six Pizzeria Regina restaurants for the entire period,
and four Pizzeria Regina restaurants for a portion of the period. The
accompanying statements of operations and cash flows for the fiscal 1997 period
reflect the consolidated operations and cash flows of two casual dining Italian
restaurants and seven Pizzeria Regina restaurants for the entire period, and
three Pizzeria Regina restaurants for a portion of the period.
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS
130") and Statement of Financial Accounting Standards No. 131, Disclosures about
Segments of an Enterprise and Related Information ("SFAS 131").
SFAS 130 establishes standards for reporting and display of comprehensive
income, its components and accumulated balances. Comprehensive income is defined
to include all changes in equity except those resulting from investments by
owners and distributions to owners. Among other disclosures, SFAS 130 requires
that all items that are required to
6
<PAGE>
be recognized under current accounting standards as components of comprehensive
income be reported in a financial statement that is displayed with the same
prominence as other financial statements.
SFAS 131, which supersedes SFAS No. 14, Financial Reporting for Segments of a
Business Enterprise, establishes standards for the way that public companies
report information about operating segments in annual financial statements and
requires reporting of selected information about operating segments in interim
financial statements issued to the public. It also establishes standards for
disclosures regarding products and services, geographic areas and major
customers. SFAS 131 defines operating segments as components of a company about
which separate financial information is available that is evaluated regularly by
the chief operating decision maker in deciding how to allocate resources and in
assessing performance.
SFAS 130 and 131 are effective for financial statements for periods beginning
after December 15, 1997 and require comparative information for earlier years to
be restated. Because of the recent issuance of these standards, management has
been unable to fully evaluate the impact, if any, these standards may have on
future financial statement disclosures. Results of operations and financial
position, however, will be unaffected by implementation of these standards.
Convertible Subordinated Debentures
- -----------------------------------
For the quarter ending October 26, 1997, the Company issued $25,000 of
convertible subordinated debentures. In 1997, the Company completed the
subscriptions of the remaining $162,500 of convertible subordinated debentures,
completing a placement of $1,500,000. These debentures bear interest at 8%
through December 31, 1997; 10% through December 31, 1998; 12% through December
31, 1999; 14% through 2011 (straight-lined at 13.2% annually) payable
semi-annually and convertible into the Company's common stock at a conversion
rate of $1.25 per share. The Company can redeem the convertible debentures under
certain conditions, as defined. The debentures are due December 2011. The
remaining proceeds from the debentures will be used to fund future expansion.
ITEM 2. Management's Discussion and Analysis or Plan of Operation
---------------------------------------------------------
Results of Operations
- ---------------------
Overview
- --------
In the thirteen weeks ending October 26, 1997, the Company recorded a profit of
$52,677 compared to $46,534 for the quarter ending October 27, 1996. The
Company's profit in the current fiscal quarter is substantially attributable to
the income generated by the Company's Pizzeria Regina restaurant business.
7
<PAGE>
During its second quarter, the Company closed its Brookline, (Pizzeria Regina at
Longwood), location in October 1997 at the completion of its lease. In addition
the Company had operated a self service sit down Regina Pizzeria in the
Burlington Mall, Burlington, MA which was closed in October 1997 at the
conclusion of the lease. A Pizzeria Regina food court kiosk continues in
operation at this mall.
During August 1997, the Company opened a new Pizzeria Regina food court kiosk at
the Paramus Park Mall, Paramus, New Jersey. In October the Company signed a
lease for a Pizzeria Regina food court kiosk at the Regency Square Mall in
Richmond, VA. The Company continues to evaluate potential future sites for
possible expansion of its Pizzeria Regina operations.
Thirteen Weeks Ended October 26, 1997 as Compared to Thirteen Weeks ended
October 27, 1996
- -------------------------------------------------------------------------
Revenues. Net sales in the current period were $2,990,000 compared to net sales
in the prior year's period of $3,013,000. The decrease in net sales in the
fiscal 1998 period as compared to the fiscal 1997 period were due to the closure
of the self-service in-line Pizzeria Regina the Burlington Mall in October of
1997, and the closure of the two Brookline Pizzeria Regina restaurants in May
and October of 1997 at the completion of their leases (due to the inability to
renegotiate a market value lease). The decreases were partially offset by the
opening of the new Paramus N.J. Pizzeria Regina food court in August of 1997.
Net sales at the Company's Pizzeria Regina restaurants decreased to $2,067,000
in the current period from $2,104,000 in the prior year's period.
Net sales at the Company's full service casual dining restaurants, Polcari's
North End and Bel Canto's, increased to $918,000 in the current period from
$898,000 in the prior year's period. This increase in net sales is primarily
attributable to the Polcari's North End restaurant.
Cost of Food and Beverages. Cost of food and beverages as a percentage of net
sales was 20% in the fiscal 1998 period as compared to 23% in the fiscal 1997
period.
The cost of food and beverages as a percentage of net sales at the Pizzeria
Regina restaurants was 16% and 20% in the fiscal 1998 and 1997 periods,
respectively. The cost of food and beverages as a percentage of net sales
decreased at the Pizzeria Regina restaurants, principally due to lower food
costs and the addition of Pizzeria Regina food court restaurants which generally
have lower food and beverage costs.
The cost of food and beverages as a percentage of net sales at the Company's
full service casual dining restaurants was 29% and 31% in the fiscal 1998 and
1997 periods respectively. The cost of food and beverages as a percentage of net
sales decreased at the Company's Polcari's North End restaurant due to a change
in menu mix and menu price increases.
8
<PAGE>
Payroll Expenses. Payroll expenses were $888,000 (30 % of net sales) in the
current period compared to payroll expenses in the prior year's period of
$930,000 (31% of net sales).
Payroll expenses at the Pizzeria Regina restaurants decreased to $557,000 (27%
of sales) in the current period from $607,000 (29% of net sales) in the prior
year's period. The decrease in payroll expenses at the Pizzeria Regina
restaurants was primarily attributable to the closure of the Company's two
Brookline Pizzeria Regina restaurants and the self-service in-line Pizzeria
Regina at the Burlington Mall, which was partially offset by increase in payroll
expenses associated with the new Paramus Park Mall food court location.
Payroll expenses at the Company's full service casual dining restaurant remained
the same at $291,000 (32% of net sales) in the current period and $291,000 (32%
of net sales) in the prior year's period. Payroll expenses at the Company's
Commissary was $40,000 for the fiscal 1998 period as compared to $32,000 in the
fiscal 1997 period. The increase is primarily due to the purchasing director's
salary associated with the Commissary.
Other Operating Expenses. Other operating expenses in the current period were
$1,029,000 (34% of net sales), compared to $1,049,000 (35% of net sales) in the
prior year's period. The decrease in other operating expenses in the current
period was primarily attributable to the closure of the two Brookline Pizzeria
Regina restaurants and the self-service in-line Pizzeria Regina at the
Burlington Mall. The decrease in other operating expenses was partially offset
by the new Paramus Park Mall location and the Company's policy to expense
pre-opening costs as incurred. Therefore, the Company realized pre-opening
expenses associated with the Pizzeria Regina in Richmond, VA which opened on
November 30, 1997, and costs associated in the anticipation of future expansion.
These costs include legal and real-estate site location fees.
Other operating expenses from the Pizzeria Regina restaurants decreased to
$705,000 (34% of net sales) in the current period from $715,000 (34% of net
sales) in the prior year's period.
Other operating expenses at the Company's full service casual dining restaurants
decreased to $294,000 (32% of net sales) in the current period from $315,000
(35% of net sales) in the prior year's period. Other operating expenses also
include commissary expenses, which decreased to $17,000 in the current period,
as compared to $18,000 in the prior year's period. In addition, other operating
expenses included pre-opening expenses of $13,000 associated with the opening of
new locations.
General and Administrative Expenses. General and administrative expenses were
$347,000 (12% of net sales) in the current period, as compared to $264,000 (9 %
of net sales) in the prior year's period. The increase in general and
administrative expenses was due, principally, to an increase in legal costs,
real estate site selection consulting expense, and support staff.
9
<PAGE>
Interest Expense. Interest expense increased to $78,000 in the current period as
compared to interest expense in the prior year's period of $34,000. This
increase in interest expense was associated with borrowings under the Company's
new credit facility and the issuance of convertible subordinated debentures.
Twenty-six Weeks Ended October 26, 1997 as Compared to Twenty-six Weeks ended
October 27, 1996
- -----------------------------------------------------------------------------
Revenues. Net sales in the current period were $5,836,000 compared to net sales
in the prior year's period of $5,812,000. The increase in net sales in the
fiscal 1998 period as compared to fiscal 1997 period reflected, among other
things, net sales at the Solomon Pond Mall and the South Shore Plaza Pizzeria
Regina (which replaced an in-line restaurant at this mall), both of these
locations were opened in August of 1996. The increases were also attributable to
opening of the new Paramus, NJ Pizzeria Regina Food Court in August of 1997. The
increase in net sales were partially offset by the closure of the self-service
in-line Pizzeria Regina at the Burlington Mall in October of 1997 and the
closure of the two Brookline Pizzeria Regina restaurants in May and October of
1997 at the completion of their leases (due to the inability to renegotiate a
market value lease at the Brookline locations). Net sales at the Company's
Pizzeria Regina restaurants increased to $4,000,000 in the current period from
$3,965,000 in the prior's year's period.
Net sales at the Company's full service casual dining restaurants, Polcari's
North End and Bel Canto's decreased to $1,825,000 in the current period from
$1,826,000 in the prior year's period. This decrease in net sales in primarily
attributable to the Bel Canto restaurant.
Cost of Food and Beverages. Cost of food and beverages as a percentage of net
sales was 20% in the fiscal 1998 period as compared to 23% in the fiscal 1997
period.
The cost of food and beverages as a percentage of net sales at the Pizzeria
Regina restaurants was 16% and 20% in the fiscal 1998 and 1997 periods,
respectively. The cost of food and beverages as a percentage of net sales
decreased at the Pizzeria Regina restaurants, principally due to lower food
costs and the addition of Pizzeria Regina food court restaurants which generally
have lower food beverage costs.
The cost of food and beverages as a percentage of net sales at the Company's
full service casual dining restaurants was 29% and 31% in the fiscal 1998 and
1997 periods respectively. The cost of food and beverages as a percentage of net
sales decreased at the Company's Polcari's North End restaurant due to a change
in menu mix and menu price increases.
Payroll Expenses. Payroll expenses were $1,724,000 (30% of net sales) in the
current period compared to payroll expenses in the prior year's period of
$1,788,000 (31% of net sales).
10
<PAGE>
Payroll expenses at the Pizzeria Regina restaurants decreased to $1,071,000 (27%
of sales) in the current period from $1,132,000 (29% of net sales) in the prior
year's period. The decrease in payroll expenses at the Pizzeria Regina
restaurants was primarily attributable to the closure of the Company's two
Brookline Pizzeria Regina restaurants and the self-service in-line Pizzeria
Regina at the Burlington Mall, which was partially offset by an increase in
payroll expenses associated with the new Paramus Park Mall food court location
in August of 1997 and the Solomon Pond Mall location in August of 1996.
Payroll expenses at the Company's full service casual dining restaurant
decreased to $586,000 (32% of net sales) in the current period from $594,000
(33% of net sales) in the prior year's period. Payroll expenses at the Company's
Commissary was $66,000 for the fiscal 1998 period as compared to $61,000 in the
fiscal 1997 period. The increase is primarily due to the purchasing director's
salary associated with the Commissary.
Other Operating Expenses. Other operating expenses in the current period were
$1,940,000 (33% of net sales), compared to $1,910,000 (33% of net sales) in the
prior year's period. The increase in other operating expenses in the current
period was primarily attributable to the New Paramus Park Mall location . The
Company's policy is to expense pre-opening costs as incurred. Therefore, the
Company realized pre-opening expenses associated with the Pizzeria Regina in
Paramus NJ, which opened on August 7, 1997, the Pizzeria Regina in Richmond,VA
which opened on November 30, 1997, and costs associated in the anticipation of
future expansion. These costs include legal and real-estate site locations. The
increase in other operating expenses was partially offset by the closure of the
two Brookline Pizzeria Regina restaurants and the self-service in-line Pizzeria
Regina at the Burlington Mall.
Other operating expenses from the Pizzeria restaurants increased to $1,307,000
(33% of net sales) in the current period from $1,277,000 (32% of net sales) in
the prior year's period.
Other operating expenses at the Company's full service casual dining restaurants
decreased to $583,000 (32% of net sales) in the current period from $592,000
(32% of net sales) in the prior year's period. Other operating expenses also
include commissary expenses, which decreased to $32,000 in the current period,
as compared to $41,000 in the prior year's period. In addition the Company
realized pre-opening expenses of $18,000.
General and Administrative Expenses. General and administrative expenses were
$745,000 (13% of net sales) in the current period, as compared to $588,000 (10%
of net sales) in the prior year's period. The increase in general and
administrative expenses was due, principally, to an increase in legal costs,
support staff, real estate site selection consulting expenses, and depreciation
expenses.
Interest Expense. Interest Expense increased to $149,000 in the current period
as compared to interest expense in the prior year's period of $55,000. This
increase in interest expense was associated with borrowings under the Company's
new credit facility and the issuance of convertible subordinated debentures.
11
<PAGE>
Liquidity and Capital Resources.
- --------------------------------
At October 26, 1997, the Company had a negative net working capital of
approximately $255,000 and cash and cash equivalents of approximately $632,000.
During the twenty-six weeks ended October 26, 1997, the Company had a net
decrease in cash and cash equivalents of $94,000, reflecting net cash provided
by operating activities of $309,000, net cash used for investing activities of
$505,000 and net cash provided by financing activities of $102,000. Net cash
provided by operating activities included the increase in accounts payable of
$20,000, partially offset by an increase of prepaid expenses of $12,000 and an
increase in accounts receivable of $63,000. Net cash used in investing
activities reflects the costs associated with the opening of the new Paramus, NJ
Pizzeria location and partial cost associated with the opening of the new
Pizzeria Regina Food Court kiosk at the Regency Square mall in Richmond, VA .
Net cash used in investing activities also reflects costs associated with the
production of ovens for future Pizzeria Regina expansion. Net cash provided by
financing activities include proceeds for the convertible subordinated
debentures placement.
The Company opened Pizzeria Regina food court kiosks at the Paramus Park Mall,
Paramus, NJ on August 7, 1997 and at the Regency Square Mall, Richmond, VA on
November 30, 1997. The Company has entered into a lease for a food court kiosk
in the Oviedo Mall, Oviedo, FL which is planning to open in the Spring of 1998.
For the quarter ending October 26, 1997, the Company issued $25,000 of
convertible subordinated debentures. In 1997, the Company completed the
subscriptions of the remaining $162,500 of convertible subordinated debentures,
completing a placement of $1,500,000. These debentures bear interest at 8%
through December 31, 1997; 10% through December 31, 1998; 12% through December
31, 1999; 14% through 2011 (straight-lined at 13.2% annually) payable
semi-annually and convertible into the Company's common stock at a conversion
rate of $1.25 per share. The Company can redeem the convertible debentures under
certain conditions, as defined. The debentures are due December 2011. The
remaining proceeds from the debentures will be used to fund future expansion.
At October 26, 1997, the Company had current liabilities of $1,274,000,
including $402,000 of accounts payable, $634,000 of accrued liabilities and
current maturities of long term obligations in the amount of $238,000. At
October 26, 1997, the Company had long-term obligations, less current
maturities, in the amount of $2,178,000, including $525,000 due under its credit
facility with Haymarket Co-Operative Bank, $124,000 of loans payable to
stockholder, $122,000 due under the capital lease obligations,
12
<PAGE>
$1,337,500 of convertible subordinated debentures, and $70,000 of deferred rent.
The President and the Treasurer of the Company and each of the Company's
subsidiaries have guaranteed the Company's obligations to the bank. As of
December 8, 1997, the Company had borrowed the full amount available under its
bank credit facility.
The Company believes that its existing resources, cash flow from operations and
borrowings under its credit facility will be sufficient to allow it to meet its
obligations over the next twelve months. The Company intends to fund its current
obligations and operating expenses through cash generated from operations. The
Company is also seeking additional financing in order to finance its expansion
plans and other cash flow requirements. There can be no assurance that cash
flows will improve in an amount sufficient to allow the Company to fund its
current obligations and operating expenses, or that the Company will be able to
obtain such additional financing upon favorable terms, if at all. Failure of the
Company to do so could result in the Company's failure to be able to meet its
cash flow requirements.
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS
130") and Statement of Financial Accounting Standards No. 131, Disclosures about
Segments of an Enterprise and Related Information ("SFAS 131").
SFAS 130 establishes standards for reporting and display of comprehensive
income, its components and accumulated balances. Comprehensive income is defined
to include all changes in equity except those resulting from investments by
owners and distributions to owners. Among other disclosures, SFAS 130 requires
that all items that are required to be recognized under current accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements.
SFAS 131, which supersedes SFAS No. 14, Financial Reporting for Segments of a
Business Enterprise, establishes standards for the way that public companies
report information about operating segments in annual financial statements and
requires reporting of selected information about operating segments in interim
financial statements issued to the public. It also establishes standards for
disclosures regarding products and services, geographic areas and major
customers. SFAS 131 defines operating segments as components of a company about
which separate financial information is available that is evaluated regularly by
the chief operating decision maker in deciding how to allocate resources and in
assessing performance.
SFAS 130 and 131 are effective for financial statements for periods beginning
after December 15, 1997 and require comparative information for earlier years to
be restated. Because of the recent issuance of these standards, management has
been unable to fully evaluate the impact, if any, these standards may have on
future financial statement disclosures. Results of operations and financial
position, however, will be unaffected by implementation of these standards.
13
<PAGE>
"Safe Harbor" Statement Under the Private Securities Litigation Reform Act of
1995
Forward-looking statements in this report, including without, limitation,
statements relating to the adequacy of the Company's resources, and the timing
of the Company's expansion are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. Investors are cautioned
that such forward-looking statements involve risks and uncertainties, including
without limitation: potential quarterly fluctuations in the Company's operating
results; seasonality of sales; competition; risks associated with expansion; the
Company's reliance on key employees; risks generally associated with the
restaurant industry; risks associated with geographic concentration of the
Company's restaurants; risks associated with serving alcoholic beverages; and
other risks and uncertainties indicated from time to time in the Company's
filings with the Securities and Exchange Commission.
14
<PAGE>
PART II
ITEM 1. Legal Proceedings.
------------------
No pending legal proceedings that are not routine litigation, or incidental to
the business.
ITEM 2. Changes in Securities and Use of Proceeds.
------------------------------------------
For use of proceeds, see liquidity, part I.
ITEM 3. Defaults Upon Senior Securities.
--------------------------------
None.
ITEM 4. Submission of Matters to a Vote of Security Holders.
----------------------------------------------------
The Security holder of Boston Restaurant Associates, Inc. convened for their
annual meeting on September 12, 1997. At this meeting 7 directors were elected,
the Company's auditors were reappointed and the stockholders voted to amend the
1994 Employee Stock Option Plan; thereby, increasing the number of reserved
share by 365,000 shares.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
DIRECTOR VOTES FOR VOTES AGAINST VOTES ABSTAINED UNVOTED
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
George R. Chapdelaine 4,613,092.000 26,325.000
- --------------------------------------------------------------------------------------------------------------------------
Joseph J. Caruso 4,619,247.000 20,170.000
- --------------------------------------------------------------------------------------------------------------------------
Roger Lipton 4,618,247.000 21,170.000
- --------------------------------------------------------------------------------------------------------------------------
John J. Polcari, Jr. 4,619,247.000 20,170.000
- --------------------------------------------------------------------------------------------------------------------------
Richard J. Reeves 4,614,247.000 25,170.000
- --------------------------------------------------------------------------------------------------------------------------
Lucille Shalhany 4,619,247.000 20,170.000
- --------------------------------------------------------------------------------------------------------------------------
Terrance A. Smith 4,614,247.000 25,170.000
- --------------------------------------------------------------------------------------------------------------------------
Proposition 2 2,927,257.000 89,455.000 24,076.000 1,598,629.000
To adopt and approve
the amendment to the
1994 Employee Stock
Option Plan
- --------------------------------------------------------------------------------------------------------------------------
15
<PAGE>
- --------------------------------------------------------------------------------------------------------------------------
DIRECTOR VOTES FOR VOTES AGAINST VOTES ABSTAINED UNVOTED
- --------------------------------------------------------------------------------------------------------------------------
Proposition 3 4,628,542.000 7,715.000
To ratify the
appointment of
BDO Seidman
LLP auditors
for fiscal year
1998.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
ITEM 5. Other Information.
------------------
It is the intention of Boston Restaurant Associates International, Inc. to offer
for sale, Franchise opportunities within the State of Georgia under the name
Pizzeria Regina (TM). Therefore Boston Restaurant Associates International, Inc.
availed itself of the self effectuating exceptions from registration under the
Georgia Business Opportunities Sales Law Title 10, Chapter 1, Article 15 on 12
November 1997.
ITEM 6. Exhibits and Reports On Form 8-K.
---------------------------------
(a) Exhibits.
---------
10.14 The lease between Pizzeria Regina of Virginia and Regency Square Mall in
Richmond, Virginia
10.15 The lease between Pizzeria Regina of Florida and the Oviedo Mall,
Oviedo, FL.
Reports On Form 8-K.
--------------------
(b) None.
16
<PAGE>
SIGNATURES
----------
In accordance with the requirements of the Securities Exchange Act of 1934, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
BOSTON RESTAURANT ASSOCIATES, INC.
By: /s/ George R. Chapdelaine
Date: December 8, 1997
------------------------------------
George R. Chapdelaine, President and
Chief Executive Officer
17
DEED OF LEASE
THIS DEED OF LEASE, made as of the 7th day of July, 1997, by and
between ONE FEDERAL STREET JOINT VENTURE, a Massachusetts Joint Venture,
hereinafter called "Landlord", and PIZZERIA REGINA OF VIRGINIA, INC. a Virginia
corporation, hereinafter called "Tenant";
WITNESSETH:
The parties hereto agree for themselves, their successors and assigns,
as follows:
1. Basic Lease Provisions
The following terms, whenever used in this Lease with the first letter
of each word capitalized, shall have only the meanings set forth in this
paragraph, unless such meanings are expressly modified, limited or expanded
elsewhere herein:
(a) Demised Premises: Space crosshatched on Exhibit B with a total
Floor Area 'of 605 square feet for the purposes of this Lease. {Paragraph 2}
(b) Shopping Center: That land owned by Landlord located in Richmond,
Henrico County, Virginia, together with the improvements constructed thereon, on
which the Demised Premises are located, which is outlined in green on Exhibit A
and described on Exhibit C, and known as Regency Square Shopping Center. In the
event Landlord redevelops the Shopping Center in accordance with Paragraph 9(a)
and such redevelopment results in the addition of land and/or improvements, then
the Shopping Center shall be deemed to include such additional land and/or
improvements.
(c) Integrated Shopping Center: That land including the Shopping Center
and certain additional parcels of land which have been developed by Major
Stores, as described on Exhibit D and shown on Exhibit A. In the event Landlord
redevelops the Integrated Shopping Center in accordance with Paragraph 9(a) and
such redevelopment results in the addition of land and/or improvements, then the
Integrated Shopping Center shall be deemed to include such additional land
and/or improvements.
(d) Common Areas: All areas, space and facilities furnished in the
Shopping Center and designated for the general use, in common, of occupants oft
he Shopping Center, including Tenant, its officers, agents, employees, invitees
and customers, including, but not limited to, parking areas, streets, sidewalks,
roofs, canopies, signs, roadways, loading platforms, washrooms, shelters, ramps,
landscaped areas, pedestrian malls (enclosed or open), courts, stairs and other
similar facilities. {Paragraph 9(a)}
(e) Lease Term: Eighty-four (84) full calendar months. plus the period
from delivery of possession of the Demised Premises until the: Rent.
Commencement Date as defined in Paragraph l(w), provided, however, if the Rent
Commencement Date is on a date other than the first (1st) day of a month then
the first full month shall be the period commencing on the Rent
-1-
<PAGE>
Commencement Date and ending on the last day of the month immediately following
the Rent Commencement Date. {Paragraph 3}
(f) Lease Year: The first Lease Year shall be the period commencing On
the Rent Commencement Date and ending on the first December 31 thereafter. Each
subsequent Lease Year shall be a calendar year, except that if the Rent
Commencement Date is on a day other than January 1, the final Lease Year shall
be for less than a calendar year and shall commence on January I and end on the
date which is 84 full calendar months following the Rent Commencement Date,
provided, however, if the Rent Commencement Date was on a date other than the
first (1st) day of a month then the last day of the Lease Term shall be extended
to the last day of such, month.
(g) Guaranteed Minimum Rent:
(i) $90,000.00 per annum, payable in equal monthly
installments of $7,500.00 (which amounts are based on $152.54 per
square foot of Floor Area of the premises) during the period beginning
on the Rent Commencement Date and ending on the date which is 24 full
months thereafter provided however. if the Rent Commencement Date is on
a date other than the first (lst) day of a month then the first full
month shall be the period commencing on the Rent Commencement Date and
ending on the last day of the month immediately following the Rent
Commencement Date.
(ii) $100,000.00 per annum, payable in equal monthly
installments of $8,333.33 (which amounts are based on $169.49 per
square foot of Floor Area of the Demised Premises) during each of the
25th through the 60th full calendar months of the Lease Term;
(iii) $110,000.00 per annum, payable in equal monthly
installments of $9,166.67 (which amounts are based on $186.44 per
square foot of Floor Area of the Demised Premises) during each of the
61st through the 84th full calendar months of the Lease Term.
{Paragraph 4(a)}
(h) Percentage Rent:
(i) 8% of Gross Sales in excess of a "Percentage Rent Base" of
$1, 125,000.00 in each Lease Year during the period beginning on the
Rent Commencement Date and ending on the date which is 24 full months
thereafter, provided, however, if the Rent Commencement Date is on a
date other than the first (lst) day of a month then the first full
month shall be the period commencing on the Rent Commencement Date and
ending on the last day of the month immediately following the Rent
Commencement Date.
(ii) 8 % of Gross Sales in excess of a "Percentage Rent Base"
of $1,250,000.00 in each Lease Year during the 25th through the 60th
full calendar months of the Lease Term.
-2-
<PAGE>
(iii) 8 % of Gross Sales in excess of a "Percentage Rent Base"
of $1,375,000.00 in each Lease Year during the 61st through the 84th
full calendar months of the Lease Term. {Paragraph 4(c)}
(i) Use Permitted: Tenant shall use the Demised Premises only for the
retail sale of pizza, pasta, other Italian food, stuffed pizza, calzones, soft
drinks, milk and other associated beverages and other items sold in Pizzeria
Regina restaurants, but excluding beer, wine and other alcoholic beverages.
{Paragraph 6}
(j) Trade Name: PIZZERIA REGINA. {Paragraph 6(a)}
(k) Marketing Fund and Advertising Fund Fees:
(i) Marketing Fund: One Thousand and no/1O0 Dollars
($1,000.00) per annum, including the first calendar year, as provided
in Paragraph 22(a).
(ii) Advertising Fund: Three Thousand Five Hundred and no/100
Dollars ($3,500.00) per annum, including the first calendar year,
adjusted annually at the end of each calendar year as provided in
Paragraph 22(b). {Paragraph 22}
(l) Common Area Maintenance: Tenant pays its pro rata share. {Paragraph
9(b)}
(m) Property Taxes and Insurance: Tenant pays its pro rata share.
{Paragraph 4(b)}
(n) Electrical Consumption Charge: Tenant pays as provided in Exhibit
F, Section 5.
(o) Tenant's Mailing Address:
(i) For Notices: 999 Broadway, Suite 400, Saugus, MA 01906
{see also Paragraph 21(d)}, and
(ii) For Invoices: 999 Broadway, Suite 400, Saugus, MA 01906.
{Paragraph 23}
(p) Landlord's Mailing Address For Notices: One Federal Street Joint
Venture, c/o The Prudential Realty Group, 8 Campus Drive, Arbor Circle South,
Parsippany, NJ 07054 Attention: Vice President, Retail, and with a copy to
Faison & Associates, Inc., 1900 Interstate Tower, 121 West Trade Street,
Charlotte, North Carolina 28202-5399, Attn: Retail Leasing. {Paragraph 23}
(q) Landlord's Mailing Address for Places to Pay Rent:
(i) Place to Pay Rent {except rent set out below}: One Federal
Street Joint Venture, c/o Faison & Associates, Inc.: P.O. Box 70160,
Richmond, Virginia 23255-0160.
-3-
<PAGE>
(ii) Place to Pay Marketing Fund and Advertising Fund Fees:
Regency Square Marketing/Advertising Fund, 1420 Parham Road, Richmond,
Virginia 23229. {Paragraph 4(f)}
(r) Major Stores: Stores within the Integrated Shopping Center which
occupy at least thirty thousand (30,000) square feet of Floor Area.
(s) Floor Area: The number of square feet of floor space within the
Demised Premises or other buildings or spaces in the Shopping Center, as the
case may be. All Floor Areas shall be calculated by using dimensions from the
centerline of the interior or party walls and from the exterior faces of
exterior walls.
(t) Gross Leased Area: The number of square feet of Floor Area of all
leased areas of the Shopping Center rented to tenants whose leases or occupancy
requirements have commenced, but excluding the Floor Area of the Major Stores
and the Floor Area of tenants whose spaces do not front on the enclosed mall. In
no event shall the Gross Leased Area be less than 75% of the Gross Leasable
Area; provided, however, that in the event of an expansion of the Shopping
Center, then the Gross Leasable Area of the expanded area shall not be included
in the above percentage until such time as 75 % of the Gross Leasable Area of
the expanded area is rented to tenants whose leases or occupancy requirements
have commenced. For the purposes herein "Gross Leasable Area" shall mean the
Floor Area of all enclosed areas of the Shopping Center which are available for
the exclusive use and occupancy by tenants of the Shopping Center, whether or
not open for business, but excluding the Floor Area of the Major Stores and the
Floor Area of tenants whose spaces do not front on the enclosed mall. Changes in
the Gross Leased Area occurring during any calendar month shall be effective on
the first (lst) day of the next succeeding calendar month. The Gross Leased Area
in effect for the whole of any calendar year shall be the average of the Gross
Leased Area in effect on the first (lst) day of each calendar month in such
calendar year.
(u) Exhibits: The following exhibits are attached to this Lease and are
hereby incorporated in and made a part of this Lease.
(i) Exhibit A - Site Plan.
(ii) Exhibit B - Building Plan (Showing the Demised Premises
outlined in red).
(iii) Exhibit C - Description of Shopping Center.
(iv) Exhibit D - Description of Integrated Shopping Center.
(v) Exhibit E - Intentionally deleted.
(vi) Exhibit F - Energy Service and Energy Charges.
(vii) Exhibit G - Short Form Lease.
-4-
<PAGE>
(viii) Exhibit H - Estoppel Certificate.
(v) Rent Commencement Date: the earlier of: (i) ninety (90)
days after the date Landlord delivers the Demised Premises to Tenant,
or (ii) the date on which Tenant first opens for business within the
Demised Premises.
References in this Paragraph 1 to other paragraphs are for convenience
and designate one of the other paragraphs where reference to the particular
Basic Lease Provision appears. Each reference in this Lease to any of the Basic
Lease Provisions contained in this Paragraph 1 shall be construed to incorporate
all of the terms provided by such Basic Lease Provisions. In the event of any
conflict between the Basic Lease Provisions and the balance of this Lease,
including any exhibits, riders, addenda or amendments, then the balance of this
Lease shall control.
2. Demised Premises
Landlord hereby leases to Tenant, and Tenant hereby accepts and rents
from Landlord, at the rent, and upon the terms and conditions hereinafter set
forth, the interior of the Demised Premises as described in Paragraph 1(a),
together with the nonexclusive right to use all Common Areas {as defined in
Paragraph 1 (d)} located from time to time in the Shopping Center. Nothing
contained in this Lease shall be construed as a grant, rental or conveyance of:
(i) any rights in the roof or exterior of the building of which the Demised
Premises constitute a part; (ii) the air space (occupied or not) above a
horizontal plane coterminous with the bottom edge of the structural steel
framework supporting the roof of the Demised Premises; (iii) the Common Areas
(except as expressly provided in this Lease); (iv) the air space (occupied or
not) below a horizontal plane coterminous with the finished floor level of the
Demised Premises; or (v) the land upon which the Demised Premises are located.
Landlord and Tenant agree that either party may elect to redetermine
the number of square feet of the Floor Area of the Demised Premises. In the
event that any such remeasurement determines there is a deviation between the
actual number of square feet of Floor Area in the Demised Premises and the
number of square feet set forth in Paragraph 1 (a) of the Lease by five percent
(5%) or more, and the determination is certified by an architect approved by
Landlord. this Lease shall be amended to reflect the actual number of square
feet of Floor Area and to adjust proportionately Guaranteed Minimum Rent,
Percentage Rent and additional rent. If the deviation is less than five percent
(5 %), then Landlord may, at Landlord's sole option, elect to either adjust
proportionately Guaranteed Minimum Rent, Percentage Rent and additional rent, or
to leave the charges and the Floor Area of the Demised Premises as they are set
out in the Lease. Any underpayment of rent disclosed by such adjustment shall be
promptly paid by Tenant. Any overpayment of rent disclosed by such adjustment
shall be promptly refunded.
3. Term
The Lease Term shall begin on the date of delivery of the Demised
Premises by Landlord to Tenant, as provided in Paragraph 5, and shall end at
midnight on the last day of the 84th calendar month after the Rent Commencement
Date, provided, however, if the Rent Commencement Date is on a date other than
the first (lst) day of a month then the first full month
-5-
<PAGE>
shall be the period commencing on the Rent Commencement Date and ending on the
last day of the month immediately following the Rent Commencement Date.
4. Rent
Tenant shall pay to Landlord for the use and occupancy of the Demised
Premises and appurtenances thereto rent as hereinafter provided:
(a) Guaranteed Minimum Rent.
(i) Guaranteed Minimum Rent at the rate per annum specified in
Paragraph 1 (g), payable in equal monthly installments as specified in
Paragraph 1 (g) in advance, without notice, demand, setoff or
deduction, on or before the first day of each and every calendar month
beginning on the Rent Commencement Date and continuing throughout the
Lease Term. Changes in the Floor Area of the Demised Premises shall
result in corresponding changes in the Guaranteed Minimum Rent and
Percentage Rent Base. Should the Rent Commencement Date be on a day
other than the first day of a month, then the rent for the first
fractional month shall be computed on a daily basis {based on a thirty
(30) day month} and shall be paid on the Rent Commencement Date. Should
the Lease Term expire on a day other than the last day of a month, then
the rent for the final fractional month shall be computed on a daily
basis {based on a thirty (30) day month}.
(ii) If at any time during the Lease Term, the Shopping Center
shall be expanded and as a result of such expansion, a new Major Store
over 100,000 square feet opens, then beginning on the date that the new
Major Store opens for business, Guaranteed Minimum Rent and the
Percentage Rent Base shall be increased as follows:
The annual Guaranteed Minimum Rent that is then payable by Tenant in
the Lease Year in which the Major Store opens shall be multiplied by one hundred
five percent (105%) and such product shall be the new annual Guaranteed Minimum
Rent. In the event this Lease has increases in Guaranteed Minimum Rent, then
such amounts shall be proportionately increased. Such new Guaranteed Minimum
Rent shall be payable in equal monthly installments.
The new Percentage Rent Base shall be the product obtained by dividing
the new annual Guaranteed Minimum Rent by the percentage set forth in Paragraph
1(h).
(iii) If at any time during the Lease Term, the Shopping
Center shall be expanded and as a result of such expansion, a new Major
Store operating under the name of Nordstrom ("Nordstrom") opens, then
beginning on the date that Nordstrom opens for business, Guaranteed
Minimum Rent and the Percentage Rent Base shall be increased as
follows:
The annual Guaranteed Minimum Rent that is then payable by Tenant in
the Lease Year in which Nordstrom opens, shall be multiplied by one hundred ten
percent (110%) and such product shall be the new annual Guaranteed Minimum Rent.
In the event this Lease has increases
-6-
<PAGE>
in Guaranteed Minimum Rent, then such amounts shall be proportionately
increased. Such new Guaranteed Minimum Rent shall be payable in equal monthly
installments.
The new Percentage Rent Base shall be the product obtained by dividing
the new annual Guaranteed Minimum Rent by the percentage set forth in Paragraph
1 (h).
(b) Taxes and Insurance Expense. Commencing on the Rent Commencement
Date, and for the balance of the Lease Term, Tenant agrees to pay Landlord, as
additional rent for each Lease Year, a pro rata share of each of the following
expenses, which pro rata share shall be computed by multiplying such expenses by
a fraction having as its numerator the Floor Area of the Demised Premises and as
its denominator the Gross Leased Area:
(i) All taxes, impositions and assessments of every kind or
nature which are now or may hereafter be imposed or assessed upon the
Demised Premises or the Shopping Center, less any amounts paid by Major
Stores and tenants whose spaces do not front on the enclosed mall
towards such taxes and assessments.
(ii) All taxes, impositions or excises on rent or any other
tax, levy or charge however described (but excluding any federal, state
or local income taxes) levied against Landlord by the Federal
Government, the Commonwealth of Virginia or any agency or political
subdivision of the Commonwealth of Virginia, including without
limitation, any license fees, taxes measured by or imposed upon rents
or other tax or charge upon Landlord and/or the business for leasing
the Shopping Center, on account of rentals or other charges payable to
Landlord under leases of space in the Shopping Center (including this
Lease), or based upon the parking facilities and/or the number of
parking spaces provided by Landlord in the Shopping Center, less any
amounts paid by Major Stores and tenants whose spaces do not front on
the enclosed mall towards such taxes and excises.
(iii) The cost to Landlord of insurance obtained by Landlord
pursuant to Paragraphs 12 and 13, less any amounts paid by Major Stores
and tenants whose spaces do not front on the enclosed mall towards such
cost.
(iv) The cost to Landlord for professional tax consulting
services, advise and review, and the costs and charges, including
reasonable attorneys', accountants', appraisers' and consultants' fees
and expenses and other fees in any tax appeal, protest, review or any
other administrative or judicial proceeding seeking to reduce the level
of costs outlined in Paragraphs 4(b)(i) and 4(b)(ii) levied upon the
Shopping Center, and expenses and contributions actually incurred for
lobbying purposes at the federal, state or local level seeking to
reduce, repeal, lessen the increase of or defeat the additional
imposition of real estate taxes, privilege (sales) or use taxes, rent
taxes, leasehold taxes, occupation taxes, excise taxes or like taxes
affecting, among others, Tenant or the Demised Premises, and expenses
and contributions to propose, approve or oppose such tax measures in
legislation or a referendum, initiative or constitutional amendment.
-7-
<PAGE>
Landlord shall bill Tenant for such costs as a separate charge in
advance on the first day of each calendar month in an amount as estimated by
Landlord. Such estimate shall be based on Landlord 's projected costs for taxes
and insurance for that calendar year. The costs for Landlord's insurance may, at
Landlord's sole discretion be included in Landlord's cost for Common Areas as
set forth in Paragraph 9(b). After the end of each calendar year, Landlord will
furnish to Tenant a statement showing in reasonable detail the amount of
Landlord's costs for such taxes and insurance for the preceding calendar year,
any deficit will be paid by Tenant within thirty (30) days after demand from
Landlord. Any surplus will be applied against Guaranteed Minimum Rent thereafter
coming due. The annual and monthly payments for the ensuing calendar year shall
be estimated accordingly. Changes in applicable Floor Areas shall result in
corresponding pro rata adjustments. Such additional rent for any partial Lease
Year, or for any Lease Year longer or shorter than twelve (12) calendar months,
shall be prorated per diem. Tenant shall be entitled to a credit for its
proportionate share of any refund or reduction in real property taxes. provided
Tenant paid Landlord its proportionate share of the taxes for the year being
refunded or reduced.
(c) Percentage Rent. Tenant shall also pay to Landlord, without notice,
demand, setoff or deduction, a sum equal to the percentage of Gross Sales {which
percentage is set forth in Paragraph l(h)} of Tenant or anyone else made from,
in or upon the Demised Premises during each Lease Year in excess of the
Percentage Rent Base set forth in Paragraph 1 (h). In the event the Guaranteed
Minimum Rent payable in any Lease Year is less than the annual Guaranteed
Minimum Rent set forth in Paragraph 1 (g), or if the Guaranteed Minimum Rent is
payable for a period of less than twelve (12) months, then the Percentage Rent
Base for that Lease Year or period shall be reduced in proportion to the amount
by which the Guaranteed Minimum Rent payable is less than the annual Guaranteed
Minimum Rent set forth in Paragraph l(g).
Percentage Rent shall be computed and paid in accordance with the
following provisions:
(i) Statements and Payment of Percentage Rent. Within fifteen
(15) days after the end of each calendar month during the Lease Term,
Tenant shall submit to Landlord an accurate written statement signed by
Tenant or a duly authorized officer or representative of Tenant,
showing by month the full amount of Gross Sales of Tenant during the
immediately preceding month. Within fifteen (15) days after the end of
the calendar year quarters terminating on the last day of March, June
and September during the Lease Term, Tenant shall pay as Percentage
Rent that amount derived by multiplying the percentage set forth in
Paragraph 1 (h) hereof by the amount by which the Gross Sales for that
quarter exceeds twenty-five percent (25 %) of the Percentage Rent Base.
Within fifteen (15) days after the end of each Lease Year, Tenant shall
furnish to Landlord a statement certified as correct and complete by
Tenant (or an authorized officer or representative of Tenant) and by a
certified public accountant showing in complete detail the Gross Sales
made during the immediately preceding Lease Year or part thereof,
including an itemization of all claimed exclusions therefrom and Tenant
shall at the same time pay the full balance of Percentage Rent due for
that Lease Year. Any excess of Percentage Rent that Tenant may have
paid for that Lease Year shall be applied against Guaranteed Minimum
Rent thereafter falling due. If requested by Landlord, in addition to
-8-
<PAGE>
the Gross Sales reports required to be furnished to Landlord as set
forth above, Tenant shall furnish to Landlord copies of any and all
sales tax reports due any federal, or local governmental agency at the
same time it furnishes such reports to such agencies, but in no event
less than one (1) time per calendar year. If requested by Landlord,
Tenant shall require any licensees, concessionaires and subtenants that
may be occupying the Demised Premises to furnish similar statements to
those statements required to be furnished by Tenant to Landlord under
this Paragraph 4(c)(i). All reports shall be delivered to Landlord at
the address specified in Paragraph l(r)(i).
Each Lease Year shall be considered as an independent
accounting period for the purpose of computing the amount of Percentage
Rent. There shall be no carry-backs or carry-forwards from one (1)
Lease Year to another Lease Year, however the foregoing sentence does
not preclude the annual adjustments based on actual Gross Sales. If the
first Lease Year is longer than twelve (12) full calendar months, then
Tenant shall pay Percentage Rent for two (2) different periods for and
during the first Lease Year as follows: Tenant shall pay a separate
Percentage Rent for that portion of the first Lease Year beginning on
the Rent Commencement Date and ending on December 31 of that same year;
and Tenant shall pay a separate Percentage Rent covering the remaining
period of twelve (12) full calendar months of the first Lease Year. If
last Lease Year is longer than twelve (12) full calendar months, then
Tenant shall pay Percentage Rent for two different periods for and
during the last Lease Year as follows: Tenant shall pay a separate
Percentage Rent for that portion of the first Lease Year beginning on
the first day of such Lease Year and ending twelve (12) full calendar
months thereafter; and Tenant pay a separate Percentage Rent covering
the remaining period of the last Lease Year. Such amounts shall be paid
quarterly as provided in the preceding paragraph. Tenant's reports of
Gross Sales shall cover these periods separately.
(ii) Definition of "Gross Sales". As used in this Lease, the
term "Gross Sales" means all sales, both cash and charge, of
merchandise and services made in, upon or from the Demised Premises,
including telephone sales and orders taken in or from the Demised
Premises although such orders may be filled elsewhere, less refunds and
allowances to the customer. Gross Sales shall not include the
following: (a) any sales, use or excise tax upon such merchandise or
services if such taxes are separately stated and separately charged to
the customer; (b) transfers of merchandise between Tenant's locations
as long as the transfers are made for the convenient operation of
Tenant's business and are not made for the purpose of consummating a
sale made in, at or from the Demised Premises; (c) sales to employees
at a discount not to exceed 2 % of Gross Sales per Lease Year; (d)
returns of merchandise to shippers, suppliers or manufacturers; (e) the
sale or transfer of Tenant's trade fixtures or bulk transfer of
inventory- and/or other personal property- not constituting stock in
trade for sale to the general public; (f) the selling price of
merchandise returned without exchange and refunds or credits allowed on
returns of merchandise or customer complaints to the extent previously
included in Gross Sales; (g) bad debts not to exceed 1% of Gross Sales
in any Lease Year, however if such amounts are collected in a later
Lease Year then the amounts collected will be included in Gross Sales
in the Lease Year in which they are collected; or (h) service charges
paid by Tenant
-9-
<PAGE>
to third party credit card or charge card companies on sales paid by
customers on credit card or charge card. A sale upon installment or
credit shall be treated as a sale for the full price in the month
during which such sale is made, regardless of when or whether Tenant
shall receive payment therefor.
(iii) Records and Audit. Tenant shall keep at the Demised
Premises or at its general office complete and accurate books of
account and records in accordance with generally accepted accounting
practices with respect to all business conducted in, upon or from the
Demised Premises; and Landlord shall have the right at any reasonable
time to examine such books and records (including all tax returns) or
have them audited at Landlord's expense, except that if any such
examination or audit discloses a misstatement of more than two percent
(2%) in any annual statement of Gross Sales furnished by Tenant to
Landlord, then Tenant shall pay the actual cost of such examination or
audit. If any examination or audit by Landlord shall disclose any
deficiency in any payment of Percentage Rent, then Tenant shall pay the
deficiency within fifteen (15) days after notice of such deficiency,
with interest at the rate provided in Paragraph 4(e) from the date on
which such payment should have been made. If any audit or audits shows
that the amount of Gross Sales on any two (2) annual statements were
misstated by more than five percent (5%) of Gross Sales for any two (2)
Lease Years, Landlord shall have the right, but not the obligation, to
terminate the Lease and all of the rights, title and interests of
Tenant hereunder upon thirty (30) days written notice to Tenant.
(d) Additional Rent. In addition to all other rent required to be paid
pursuant to the terms of this Paragraph 4, Tenant shall pay, as additional rent,
the sums required to be paid pursuant to other provisions of and exhibits to
this Lease, whether or not designated "additional rent". If such amounts or
charges are not paid at the time provided in this Lease, they shall,
nevertheless, be collectible as additional rent with the next or any future
installment of Guaranteed Minimum Rent thereafter falling due, but nothing
contained in this sentence shall be deemed to suspend or delay the payment of
any amount of money or charge at the time the same becomes due and payable
hereunder, or limit any other remedy of Landlord.
(e) Interest and Late Charges. If Tenant fails to pay, when due and
payable, any rent, additional rent or other amounts or charges of any kind or
character provided in this Lease, such unpaid amounts shall bear interest at the
maximum lawful interest rate from the date due to the date of payment; but if
there is no maximum lawful interest rate, then at the rate of eighteen percent
(18%) per annum. In addition, if Tenant shall fail to pay any monthly
installment of Guaranteed Minimum Rent or additional rent by the tenth (10th)
day of the month in which the installment is due, a late charge equal to $200.00
shall be assessed; provided that in no event may any late charge and/or interest
provided in this Paragraph 4(e) exceed the maximum permitted by law or be
imposed prior to the date permitted by law.
(f) Payment of Rent. All rent and additional rent payments provided for
in this Lease, except for the payment of Marketing Fund and Advertising Fund
fees, shall be made payable to One Federal Street Joint Venture, c/o Faison &
Associates, Inc., P.O. Box 70160, Richmond, Virginia 23255-0160 until notice to
the contrary is given by Landlord. All Marketing Fund and
-10-
<PAGE>
Promotion Fund fees shall be payable to Regency Square Marketing/Advertising
Fund at 1420 Parham Road, Richmond, Virginia 23229 until notice to the contrary
is given by Landlord. Rent shall be deemed paid when received by Landlord.
(g) Survival. The rights and obligations of Landlord and Tenant set
forth in this Paragraph 4 shall survive the expiration or earlier termination of
this Lease.
5. Improvements and Delivery of Demised Premises.
(a) If Tenant is not on the date hereof in possession of the Demised
Premises, Landlord agrees to deliver possession of the Demised Premises to
Tenant upon the later to occur of: (i) the date this Lease is fully executed and
delivered to Tenant; or (ii) the date that the Demised Premises shall be
available for occupancy by Tenant. If Landlord shall be unable to deliver
possession of the Demised Premises ready for Tenant's Work within one (1) year
from the date of this Lease, this Lease shall automatically cease and terminate
and be deemed canceled and of no further force and effect as of such date; and
any money or security deposited hereunder shall be returned to Tenant.
Thereafter neither party shall have any further liability to the other, either
for damages or otherwise, by reason of such cancellation arising out of or in
connection with this Lease as though this Lease had not been executed in the
first instance. Landlord agrees that provided the current tenant in the Demised
Premises has vacated the Demised Premises, Landlord shall deliver the Demised
Premises on or before July 1, 1997.
(b) Landlord shall deliver the Demised Premises to Tenant "as is" and
shall have no duty to make any modifications or improvements to the Demised
Premises, except as otherwise set forth herein; provided, however, that Tenant
expressly agrees that any tenant occupying the Demised Premises on the date
hereof may remove its personal property or trade fixtures to the extent
permitted by the tenant's lease or by law and that the Demised Premises, after
the removal of any such personal property or trade fixtures, shall be considered
"as is" within the meaning of that term in this Paragraph 5(b), except as
otherwise set forth herein. Landlord makes no representations or warranties with
respect to the condition of the Demised Premises, except as otherwise set forth
herein. Notwithstanding the foregoing, prior to delivery of the Demised Premises
by Landlord to Tenant, Landlord agrees to stub electricity and water/sewer to a
point at the rear of the Demised Premises as determined by Landlord to the
extent the same do not already exist. Further, Landlord shall provide neutral
piers. By occupying the Demised Premises after the delivery of possession, to
install fixtures, facilities or equipment or to perform finishing work, or for
any other purpose, Tenant shall be deemed to have accepted the same and to have
acknowledged that the Demised Premises are in the condition required by this
Lease.
(c) Upon delivery of possession of the Demised Premises by Landlord,
Tenant shall with due diligence proceed to remodel and renovate the Demised
Premises, installing such stock, fixtures and equipment and performing such
other work as shall be necessary or appropriate for the operation of its
business ("Tenant's Work"), all in accordance with plans and specifications
approved by Landlord as specified below and as described in the Tenant Design &
Construction Criteria Manual (the "Criteria") for the Shopping Center. Landlord
has delivered the Criteria to Tenant and Tenant acknowledges receipt thereof.
The Criteria are incorporated by reference in
-11-
<PAGE>
this Lease and any material default under the Criteria shall be a default under
the Lease. Tenant shall complete all such work so that it may open for business
in the Demised Premises on the Rent Commencement Date. Tenant agrees to submit
to Landlord plans and specifications covering all work and installations which
Tenant proposes to do in the Demised Premises, including, without limitation,
interior store layout, storefront, mechanical layout, fixtures and decor, all of
which shall be in accordance with generally accepted construction standards for
a first class shopping mall and in accordance with the Criteria. Tenant's plans
and specifications shall be prepared in such detail as Landlord may reasonably
require, and Tenant agrees not to commence work upon any of Tenant's Work until
Landlord has approved Tenant's plans and specifications and-Tenant's architect
and contractor in writing. In the event that Tenant does not complete Tenant's
Work in accordance with its plans and specifications and open the Demised
Premises for the conduct of its business on the Rent Commencement Date, Landlord
shall have, in addition to any and all remedies herein provided, the right at
its option to collect in lieu of Percentage Rent as provided in Paragraph 4(c),
additional rent at the rate of one-fifteenth (1/15th) of the monthly Guaranteed
Minimum Rent per day for each and every day that Tenant shall fail to commence
to do business after that date.
(d) Landlord makes no representations as to the period or periods that
the Major Stores or any other tenant in the Shopping Center will be open for
business, and this Lease will not be affected by any closing of any such
business.
(e) Tenant shall reimburse Landlord within twenty (20) days after
receipt of an invoice therefor, for pre-opening services provided by Landlord
and utilized by Tenant prior to the Rent Commencement Date. The unit cost for
the pre-opening services shall be a one-time charge equal to One Thousand Five
Hundred and no/100 Dollars ($1500.00).
(f) Landlord may, at Tenant's sole cost and expense, elect to install a
temporary store front or barricade during the performance by Tenant of Tenant's
Work in the Demised Premises or until Tenant opens the Demised Premises for
business or during any period within the Lease Term during which Tenant is
making alterations to the Demised Premises. The cost of such temporary store
front or barricade shall equal Fifty-five and no/100 Dollars ($55.00) per linear
foot of lease line fronting on the Common Areas. Within twenty (20) days after
receipt of an invoice therefor, Tenant shall reimburse Landlord the full cost of
the temporary store front or barricade.
6. Use of the Premises.
(a) Continuous Occupancy. The Demised Premises shall, during the Lease
Term, be used and occupied only for the Use Permitted specifically set forth in
this Lease in Paragraph l(i) and for no other purpose and operated only under
the Trade Name specifically set forth in this Lease in Paragraph 1 (j) and under
no other name or such other trade name as Tenant may use for all or
substantially all of its stores, without the written consent of Landlord.
Landlord agrees not to unreasonably withhold its consent to a change in the
Trade Name. Tenant shall keep the Demised Premises open for business
continuously during the Lease Term between the hours of 10:00 a.m. and 9:30
p.m., six days per week, and between the hours of 12:30 p.m. and 5:30 p.m.
-12-
<PAGE>
on Sundays, or such different hours as shall be prescribed by Landlord, provided
Landlord imposes those different hour requirements on a numerical majority of
the tenants of the Shopping Center. Tenant's obligation to open for business
shall be subject to governmental regulations or governmental recommendations
approved by Landlord with which Tenant hereby agrees to comply. Tenant shall
install and maintain in the Demised Premises store fixtures of high quality and
shall, after the Rent Commencement Date, continuously, actively and diligently
operate its business in the whole of the Demised Premises in a high-grade,
reputable manner throughout the Lease Term, maintaining in the Demised Premises
a full staff of employees and a full and complete stock of merchandise, and in
general employ its best business judgment, efforts and abilities to operate its
business in an efficient and businesslike manner, to the end that the maximum
volume of sales which can be reasonably produced in the Demised Premises shall
be realized under the Trade Name set forth in Paragraph 1 (j). Under no
circumstances shall the Demised Premises be used for any of the following
purposes:
(i) the sale or distribution of alcoholic beverages for
consumption on or off the Demised Premises, unless first approved in
writing by Landlord; or
(ii) the sale of merchandise from vending machines, without
the prior written consent of Landlord, except vending machines
installed for sales to employees only; or
(iii) the operation of coin or token-operated video games or
machines of a similar nature.
(b) Failure to Comply. If Tenant fails to comply with any provision of
this Paragraph 6, then, in addition to any and all other equitable and legal
remedies which Landlord may have, Tenant agrees to pay on the first day of each
month, as additional rent, a sum equal to one-half (1/2) of the Guaranteed
Minimum Rent provided for in Paragraph 4(a) for the period it fails to comply
with such requirements, adjusted on a daily basis.
(c) Tenant shall not use or suffer or permit to be used the Demised
Premises or any part thereof in violation of any law or ordinance or any
regulation of any governmental authority or in any manner that will constitute a
nuisance, or that will injure the reputation of the Shopping Center or any part
thereof, or for any hazardous purpose, or that will violate, suspend, void or
serve to increase the premium rate of or make inoperative any policy or policies
of insurance of any kind whatsoever at any time carried on any property,
buildings or improvements in the Shopping Center or any part thereof.
(d) Rules and Regulations. Tenant shall, before opening for business in
the Demised Premises, comply in all respects with the Criteria. In addition,
during the Lease Term, Tenant agrees:
(i) To take possession and open for business, as required
hereby; and, to keep its display windows, including windows and shadow
boxes in the Demised Premises, dressed and illuminated and its interior
mall signs and lights suitably lighted until 10:00 p.m., except for
special promotional events approved or sponsored by Landlord.
-13-
<PAGE>
(ii) To keep the Demised Premises, including all vestibules,
entrances and returns located therein, all improvements thereon, and
all windows, doors and glass or plate glass fixtures, in a safe, neat
and clean condition at all times; and to keep the windows free from
unsightly window advertising and to refrain from painting or otherwise
covering the same, or making any changes thereto or to the front of the
Demised Premises, and not to have any signs or merchandise located
within one (1) foot of the front of the Demised Premises or within one
(1) foot from any store window thereof, except that Tenant may display
its product under glass within 6 inches of the front of the Demised
Premises. The attachment of advertising to plate glass, store fronts,
doors and/or windows is prohibited.
(iii) To store or stock in the Demised Premises only such
goods, wares, merchandise, or other property as shall be reasonably
required in connection with Tenant's business in the Demised Premises.
(iv) To use for offices, clerical or other non-selling
purposes only such space in the Demised Premises as is from time to
time reasonably required for Tenant's business therein.
(v) To store and/or separate all trash and garbage in adequate
containers within the Demised Premises, maintained in a neat and clean
condition and located as Landlord shall from time to time designate,
and so as not to be visible to the public in or outside the Shopping
Center and so as not to create or permit any health, safety or fire
hazard, and arrange for regular removal thereof at Tenant's expense. If
Landlord requires the same, all garbage and trash must be compacted in
the manner and in a location in or outside the Demised Premises as
reasonably required by Landlord. In the event that any governmental
authority requires or recommends that trash and garbage be separated
and recycled, Tenant agrees to comply with such requirement or
recommendation.
(vi) Not to burn any papers, trash or garbage of any kind in
or about the Demised Premises or the Shopping Center.
(vii) Not to use or operate any equipment, fixtures or
machinery which in Landlord's reasonable opinion is harmful to it or
disturbs other tenants or customers in the Shopping Center. Landlord
acknowledges that the Demised Premises are to be used as a food service
operation and Tenant's kitchen equipment, fixtures and machinery
approved by Landlord shall not be deemed harmful.
(viii) Not to use the plumbing facilities for any purpose
other than that for which they were constructed. Tenant shall not
dispose of any substances in such facilities which may clog, corrode or
damage the plumbing pipes, lines or conduits of the Shopping Center
whether through the utilization of "garbage disposal" units or
otherwise. If Tenant uses the Demised Premises for the sale,
preparation or service of food, Tenant shall regularly perform chemical
and/or enzyme cleaning and/or shall install such grease traps as are
necessary or desirable to prevent the accumulation of grease or other
wastes in the plumbing facilities servicing the Demised Premises. The
foregoing shall not be deemed to
-14-
<PAGE>
permit Tenant to use the Demised Premises as provided in the preceding
sentence unless such use is specified in Paragraph 1 (i).
(ix) Not to distribute any handbills or other advertising
matter on or about any part of the Shopping Center outside the Demised
Premises.
(x) Not to advertise any going-out-of-business, removal, fire,
bankruptcy, auction or other distress sale on the Demised Premises. If
any such covenant by Tenant is deemed unlawful, then no such activity
may be so conducted, unless and until satisfactory proof has been
supplied to Landlord that the person intending to conduct such sales
has complied meticulously with all legal requirements, including
without limitation any applicable rules and regulations of the Federal
Trade Commission.
(xi) Not to use any sidewalks, walkways or other Common Areas
of the Shopping Center, or any vestibules or entrances located within
the Demised Premises for the keeping, displaying, advertising and/or
sale of any merchandise or other object.
(xii) Not to install on or about the Demised Premises any
exterior lighting, amplifiers or similar devices, and not to use in, on
or about the Demised Premises any advertising medium which may be heard
or experienced outside the Demised Premises, such as flashing lights,
search lights, loudspeakers, phonographs, television, radio broadcasts
or video players. Except for the music system set forth in Exhibit E,
Section D, Tenant Shall not use, install or cause to be installed in
the Demised Premises any background music and/or public address system.
(xiii) Not to install a television antenna outside the Demised
Premises without Landlord's written consent. If Tenant is permitted to
connect with any master antenna provided by Landlord, Tenant shall
furnish and install any and all wiring and booster systems related to
such connection and the operation within the Demised Premises of
television receivers, and Tenant shall pay to Landlord such reasonable
connection and/or subscription charges as Landlord may establish.
(xiv) To keep the Demised Premises clean, orderly, sanitary
and free from objectionable odors and from termites, insects, vermin
and other pests, and not to keep any live animal of any kind in, upon
or about the Demised Premises. Any program of extermination and the
company or person performing the same shall be subject to Landlord's
approval, not to be unreasonably withheld. If Landlord establishes any
pest, vermin or other extermination program for all or part of the
Shopping Center, it may require Tenant to participate in such program;
and Tenant covenants to reimburse Landlord the reasonable cost thereof
as estimated by Landlord, including, but not limited to, Landlord's
reasonable expense in administering the program.
(xv) To comply with any and all requirements of any of the
constituted public authorities, and with the terms of any state or
federal statute or local ordinance or regulation applicable to Tenant
or its use of the Demised Premises, and to save Landlord
-15-
<PAGE>
harmless from penalties, fines, costs, expense or damages resulting
from Tenant's failure to do so.
(xvi) To give to Landlord immediate verbal notice followed by
prompt written notice of any accident, fire or damage occurring on or
to the Demised Premises.
(xvii) To perform all loading and unloading of goods only at
such times, in the areas and through such entrances as may be
designated for such purposes by Landlord. Trailers and/or trucks
servicing the Demised Premises shall follow such routes in the Shopping
Center as are designated by Landlord and shall remain parked in
designated areas of the Shopping Center as from time to time required
by Landlord.
(xviii) To require Tenant's employees to park their vehicles
only in those portions of the parking area or at such other places as
are designated for that purpose by Landlord from time to time. Tenant
agrees that at least five (5) days prior to its opening for business in
the Shopping Center and from time to time thereafter, within five (5)
days after receipt of written notice from Landlord, it will furnish
Landlord with the make, model and State license numbers assigned to
Tenant's vehicles, and the vehicles of all of Tenant's directors,
officers, employees, agents, contractors, subtenants, licensees and
concessionaires, and that if required by Landlord, such vehicles will
be identified or marked with a standard plate, sticker or other means
of identification provided by Landlord. Tenant further agrees that it
will require all employees to execute an agreement in form satisfactory
to Landlord authorizing Landlord, without notice or liability, to
remove any employee's vehicle not parked in a designated area and to
have such vehicle placed in the designated area, with the Tenant to
bear the reasonable expense of such towing. In the event of a failure
to park in the portion of the parking area designated by Landlord as
aforesaid (whether or not the vehicle of an offending employee is
towed) or failure of any employee of Tenant to place identification
provided by Landlord on his vehicle, Tenant agrees to pay Landlord as
additional rent Ten and no/100 Dollars ($10.00) per vehicle for each
day such violation continues.
(xix) Not to place a load on any floor exceeding the floor
load per square foot which such floor was designed to carry. Tenant
shall not install, operate or maintain any heavy item of equipment in
the Demised Premises except in such manner achieving proper
distribution of weight satisfactory to Landlord's architect or
structural engineer.
(xx) To comply with all reasonable rules and regulations of
Landlord in effect at the time of the execution of this Lease, or at
any time or times, and from time to time promulgated by Landlord, which
Landlord in its sole discretion shall deem necessary for the proper
operation of the Shopping Center, or the Demised Premises, all in
accordance with good standards for the operation of a regional enclosed
mall shopping center, including, but not limited to, the installation
of such fire extinguishers and other safety equipment as Landlord may
require; it being understood that Landlord may except certain tenants
leasing more than ten thousand (10,000) square feet from compliance
with all or
-16-
<PAGE>
part of the rules and regulations. Landlord agrees not to discriminate
against Tenant in enforcing such rules and regulations.
(e) Installation of Signs, Awnings, Canopies, Fixtures and Alterations
by Tenant. All fixtures installed by Tenant shall be new. After the completion
of Tenant's Work, Tenant shall not decorate, paint or in any other manner alter
the Demised Premises, or any part thereof, and shall not install or affix any
sign, device, fixture or attachment on or to the exterior or interior of the
Demised Premises, or any building or any pan thereof on the Demised Premises,
including the roof or the canopy thereof, nor place any vents, structure,
building, improvements, sign or advertising device, or obstruction of any type
or kind upon the Common Areas or upon the Demised Premises without first
obtaining Landlord's written consent and complying in all respects with the
provisions of the Criteria, unless the Landlord consents to the contrary in
writing, which consent shall not be unreasonably withheld. If Tenant shall do
any of the foregoing acts in contravention of this Paragraph 6(f), without
limiting any other remedy Landlord may have therefor under this Lease, in law or
in equity, Landlord shall have the right to remove any such decoration, paint,
alteration, sign, device, fixture or attachment and restore the Demised Premises
or the Common Areas to the condition thereof prior to such act. The cost of such
removal and restoration shall be paid by Tenant to Landlord as additional rent
within ten (10) days after written demand. If requested by Landlord, Tenant
agrees to remove any and all signs, awnings, canopies, fixtures, alterations,
installations, additions and/or improvements from the Demised Premises at the
expiration or earlier termination of the Lease Term.
(f) Hazardous Materials.
(i) Hazardous Materials Defined. For purposes of this
Paragraph, the term "Hazardous Materials" includes, without limitation,
any flammable explosives, radioactive materials, asbestos and asbestos
containing materials, hazardous wastes, hazardous or toxic substances,
or related materials defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Sections 6901, et
seq.), and in the regulations adopted and publications promulgated
pursuant thereto, or any other federal, state or local environmental
laws, ordinances, rules, or regulations dealing with hazardous
materials.
(ii) Environmental Regulations Defined. For purposes of this
Paragraph 6(g), the term "Environmental Regulations" shall mean all
federal, state and local laws, including all zoning laws or ordinances,
and all regulations, codes, requirements, public and private land use
restrictions, rules and orders which relate to or govern Hazardous
Materials and/or the environmental conditions in, on, under or about
the Demised Premises, including, but not limited to, air quality, soil
conditions and surface and subsurface water conditions.
(iii) Environmental Compliance. Tenant represents, warrants,
and covenants to Landlord that Tenant shall at no time use or permit
the Demised Premises to be used in
-17-
<PAGE>
violation of any Environmental Regulations. Tenant shall assume sole
and full responsibility for, and shall remedy in its sole cost and
expense, all such violations. Tenant shall at no time use, generate,
release, store, treat, dispose of, or otherwise deposit, in, on, under
or about the Demised Premises any Hazardous Materials in violation of
any Environmental Regulations: or permit or allow any third party to do
so, without Landlord's express, prior, written consent. Tenant's
compliance with the terms of this subparagraph (iii) and with all
Environmental Regulations shall be at Tenant's sole cost and expense.
Tenant shall pay or reimburse Landlord for any costs or expenses
incurred or payable by Landlord, including reasonable attorneys',
engineers', consultants' and other experts' fees and disbursements to
determine, review, approve, consent to or monitor the requirements for
compliance with Environmental Regulations.
Tenant shall provide Landlord with written notification,
immediately upon the discovery or notice or reasonable grounds to
suspect, by Tenant, its successors, assigns, licensees, invitees,
employees, agents, partners and/or any other third party, that any
provision of this paragraph has not been strictly complied with.
Landlord may exercise any of its rights and remedies under this Lease,
including the provisions of Paragraph 16, if any provision of this
paragraph is not strictly complied with at all times. Landlord's
election to conduct inspections of the Demised Premises shall not be
construed as approval of Tenant's use of the Demised Premises or any
activities conducted thereon, and shall in no way constitute an
assumption by Landlord of any responsibility whatsoever regarding
Tenant's use of the Demised Premises or Hazardous Materials.
(iv) Indemnification. Tenant shall defend, indemnify and hold
harmless Landlord and its employees, agents, officers and directors
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses of whatever kind or nature,
known or unknown, contingent or otherwise arising out of or in any way
related to the acts and omissions of Tenant, Tenant's officers,
directors, employees, agents, contractors, subcontractors, subtenants
and invitees with respect to (a) the generation, manufacture,
transport, treatment, storage, handling, production, processing,
disposal, release or threatened release of any Hazardous Materials
which are on, from, or affecting the Demised Premises, including,
without limitation, the soil, water, vegetation, buildings and
improvements thereon, (b) any personal injury (including wrongful
death) or property damage (real or personal) arising out of or related
to such Hazardous Materials, (c) any lawsuit brought or threatened,
settlement reached, or governmental order relating to such Hazardous
Materials, and (d) any violations of laws, orders, regulations,
requirements or demands of government authorities, or any reasonable
policies or requirements of Landlord, which are based upon or in any
way related to such Hazardous Materials including, without limitation,
attorney and consultant fees, investigation and laboratory fees, court
costs and litigation expenses. This indemnification shall survive the
termination, cancellation and surrender of this Lease however
effectuated.
(v) Termination, Cancellation, Surrender. In the event this
Lease is terminated, canceled or surrendered for any reason whatsoever,
Tenant shall deliver the
-18-
<PAGE>
Demised Premises to Landlord free of any and all Hazardous Materials
installed by or on behalf of Tenant so that the condition of the
Demised Premises shall conform with all Environmental Laws affecting
the Demised Premises.
(vi) If subsequent to the date Tenant accepts possession of
the Demised Premises it is determined that there are any
asbestos-containing materials (other than vinyl asbestos tile or
mastic) ("Asbestos") in the Demised Premises which were installed prior
to Landlord 's delivery of the Demised Premises to Tenant, and such
Asbestos was not installed by Tenant or any affiliate of Tenant (or any
party- acting under Tenant or its affiliate) during a prior occupancy
of the Demised Premises or a portion thereof, and such Asbestos is
required by applicable Law to be removed, encapsulated or otherwise
treated (a "Remediation"), then Tenant shall as soon as practicable,
give written notice to Landlord advising Landlord of the condition.
Upon receipt of said notice from Tenant, Landlord shall perform the
Remediation at Landlord's cost as Landlord deems appropriate so that
Environmental Law is complied with. If on account of any Remediation
Landlord performs at the Demised Premises, Tenant cannot and does not
operate in the entire Demised Premises, then all regularly payable
Guaranteed Minimum Rent shall abate until the earlier of the date
Tenant can again reasonably operate in the Demised Premises or the date
Tenant does begin operating in the Demised Premises. Notwithstanding
anything contained herein to the contrary., if any Remediation was
necessitated by the act of Tenant or Tenant's agent, employees or
contractors, the Remediation shall be at Tenant's expense. Tenant shall
cooperate with Landlord in connection with any Remediation Landlord
performs at the Demised Premises.
7. Landlord's Covenant to Maintain.
Landlord will keep and maintain in good order and repair during the
Lease Term the roof, the exterior and principal structural portions of the
buildings and other improvements constituting the Shopping Center; provided,
however, that Landlord will not be responsible for or required to make, and
Tenant will make, any repairs which may have been occasioned or necessitated by
the negligence of Tenant, its agents, employees or invitees. Landlord shall not
be liable for any damages resulting from its failure to make repairs, unless
such failure continues beyond a reasonable time after receipt of notice from
Tenant of the necessity for such repairs.
8. Tenant's Covenant to Maintain.
(a) Tenant will, at its own expense, keep and maintain in good order
and repair during the Lease Term all parts of the Demised Premises, including
without limitation, the storefront, any exterior wall separating the Demised
Premises from the enclosed mall, the interior thereof and all window glass,
plate glass, plumbing, wiring, electrical systems and those portions of central
heating and air-conditioning systems exclusively serving the Demised Premises.
(b) Tenant shall maintain all heating and air-conditioning equipment
serving the Demised Premises, and shall keep in force a standard maintenance
agreement on all such equipment and provide a copy of said maintenance agreement
to Landlord. All parts of the interior of the Demised Premises shall be painted
by Tenant when reasonably necessary, as
-19-
<PAGE>
determined by Landlord, but at least every four (4) years. Tenant will surrender
the Demised Premises at the expiration or earlier termination of this Lease in
as good condition as when initially completed, excepting only deterioration
caused by ordinary wear and tear and damage by fire or other casualty which
results in an early termination of the Lease, and except as expressly provided
to the contrary in this Lease. All replacements and modifications made by Tenant
to the Demised Premises shall become the property of Landlord at the end of the
Lease Term, subject to the other provisions of this Lease.
(c) Should Tenant, with Landlord's approval, desire to install a
cooling tower or other air conditioning equipment on the roof of the building of
which the Demised Premises forms a part, or desire to perform any other work on
the roof, Tenant agrees to assume primary responsibility for the maintenance and
repair of that portion of the roof where such installation is made or such work
performed. All such work, maintenance and repair shall be performed by Landlord
or Landlord 's designee. Tenant shall pay Landlord for such work within thirty
(30) days after demand by Landlord. Such installation and the operation,
maintenance and repair thereof shall be made by such persons and in such manner
that the rights of Landlord under any roofing bond or roof guaranty then in
force shall not be affected or voided thereby. Tenant agrees to be solely
responsible for all damages to Landlord and/or other tenants in the Shopping
Center resulting from the installation, operation, maintenance and/or repair of
such cooling tower or other air conditioning equipment, or other equipment or
work of any nature.
(d) If any repairs required to be made by Tenant under this Lease are
not completed within thirty (30) days, or in case of emergency if those repairs
are not made immediately, Landlord, without limiting any other right or remedy
it may have therefor, may at its option make such repairs without liability to
Tenant for any loss or damage which may result to its stock or business by
reason of such repairs; and, Tenant shall pay to Landlord as additional rent
within thirty (30) days after written demand, the cost of such repairs. If any
repairs required to be made by Tenant are commenced when necessary, but cannot
be completed within thirty (30) days, then Tenant shall have an additional
reasonable period of time to complete the repairs, so long as it continues to
prosecute the completion of the repairs with due diligence, and provided it
keeps Landlord fully informed on the progress of its repairs.
(e) Except as specifically provided in Paragraph 7 and Paragraph 13,
Landlord shall have no obligation to repair, maintain, alter, replace or modify
the Demised Premises or any part thereof, or any plumbing, heating, electrical,
air-conditioning or other mechanical installation therein, or serving same.
Under no circumstances shall Landlord be obligated to repair, replace or
maintain any windows, doors, plate glass or door or window glass, except when
and to the extent of proceeds received from Landlord's fire, extended coverage
or other hazard insurance. Notwithstanding the provisions of this Paragraph 8,
Tenant will not be responsible or required to make, and Landlord will make any
repairs which may have been occasioned or necessitated by the negligence of
Landlord, its agents or employees (acting within the scope of their employment),
to the extent that liability- for such occurrence is not coverable by the
policies of insurance required to be maintained by Tenant pursuant to this
Lease.
9. Common Areas.
-20-
<PAGE>
(a) Control of Common Areas. The Common Areas shall at all times be
subject to the exclusive control and management of Landlord; and Landlord shall
have the right from time to time to change, enlarge, diminish or rearrange the
area, level, location and arrangement of the Common Areas, to restrict parking
by tenants and their employees to employee parking areas, and to make all rules
and regulations and do such things from time to time as in Landlord's sole
discretion may be necessary regarding said Common Areas. Landlord shall not make
any permanent changes to the Common Areas to materially adversely affect
customer access to the Demised Premises from the interior of the enclosed mall.
Landlord hereby reserves the right at any time to make alterations or additions
to and to build additional stories on the building in which the Demised Premises
are a part and to build adjoining the same. Landlord further reserves the right
to construct other buildings on, improvements in the Shopping Center or the
Integrated Shopping Center, including without limitation, in the Common Areas,
and/or to add additional land to the Shopping Center or the Integrated Shopping
Center and construct buildings or improvements thereon, from time to time, and
to make improvements, alterations or additions and to build additional stories
on any such buildings or improvements, and to build adjoining same and to
construct below ground or elevated parking facilities.
Tenant consents and agrees that any and/or all of the Common Areas and
any and all services and facilities and any access to the Demised Premises or
the Shopping Center may, without suspension or abatement of Tenant's obligations
hereunder, be suspended, in whole or in part, during such times as on legal
holidays, on such other days as may be declared by local, state or Federal
authorities as days of celebration or observance, or during any period of actual
or threatened civil commotion, insurrection or other circumstances beyond
Landlord 's control when Landlord, in Landlord's sole judgment, shall deem the
suspension of such services, facilities and access necessary for the protection
and preservation of persons or property.
Landlord may at any time close temporarily all or part of the Common
Areas to make repairs or changes therein or to effect construction, repair or
changes within the Shopping Center, to prevent the acquisition of public rights
in such area, or to discourage non-customer parking, and may do such other acts
in and to the Common Areas as in its judgment may be desirable to improve the
convenience thereof.
(b) Tenant's Share of Common Area Costs. In each calendar year or
partial calendar year of the Lease Term after the Rent Commencement Date, Tenant
will pay to Landlord as additional rent without deduction or set-off, its pro
rata share of Landlord's actual cost for operating and maintaining the Common
Areas. Landlord's cost of maintaining the Common Areas shall mean total costs
and expenses incurred in operating, maintaining and repairing the Common Areas,
including, without limitation, the cost of all materials, supplies and services
purchased or hired therefor; the cost and expense of landscaping, gardening and
planting, cleaning, painting (including striping), decorating, repaving,
lighting, sanitary control, removal of snow, trash, garbage and other refuse,
roof repairs, heating, ventilating and air conditioning of the enclosed malls,
fire protection, security devices and personnel, water and sewage charges, any
parking tax or surcharge imposed by law against the Landlord, the Shopping
Center, or the Common Area therein; the costs of capital improvements made to
the building of the Shopping Center after the Rent Commencement Date which, in
Landlord's reasonable judgment, are
-21-
<PAGE>
expected to result in a net reduction of Common Area cost or are required under
any governmental law or regulation that was not applicable to the Shopping
Center as of the date of this Lease, such cost thereof to be amortized over such
reasonable period as Landlord shall determine, together with interest on the
unamortized balance at the rate of two percent (2%) per annum in excess of the
Prime Rate as published in the Wall Street Journal on the date such capital
improvements are completed or if such rate is no longer published then at the
rate of two percent (2%) per annum in excess of the Prime Rate of American
Security Bank (Washington, DC), or such higher rate as may have been paid by
Landlord on funds borrowed for the purpose of constructing said capital
improvements; the cost of all insurance carried by Landlord, covering the Common
Area, including without limitation, public liability, personal and bodily injury
and property damage liability and automobile coverage, fire and extended
coverage, rent interruption, vandalism and malicious mischief and all broad form
coverages, sign insurance and any other insurance that may be carried by
Landlord covering the Common Area, all in limits selected by Landlord,
{provided, however, such costs for insurance are not included in the amounts
paid by Tenant pursuant to Paragraph 4(b)} the cost of operation of loudspeakers
and any other equipment supplying music to the Common Areas or any parts
thereof; the cost of a customer service booth or area and personnel related
thereto; the cost of operation of public toilets, installing and renting of
signs, maintenance, repair and replacement of utility systems serving the Common
Areas, including water, sanitary sewer and storm water lines and other utility
lines, pipes and conduits; depreciation of machinery and equipment owned and
used in the operation, maintenance and repair of the Common Areas or the rental,
repair and maintenance charges for such machinery and equipment; payments toward
mass transit or car pooling facilities or otherwise as required by Federal,
State or local authorities; costs and expenses in connection with maintaining
Federal, State or local governmental ambient air and environmental standards;
the cost of personnel (including applicable cable payroll taxes, workmen' s
compensation insurance and disability insurance) to implement all of the
foregoing, including the policing of the Common Areas and the directing of
traffic and parking of automobiles on the parking areas thereof; and the
management fee payable to the manager of the Shopping Center; plus fifteen
percent (15 %) of such costs to cover administration and overhead, and less any
amounts paid by Major Stores and tenants whose spaces do not front on the
enclosed mall toward such cost. Landlord may cause any or all of said services
to be provided by an independent contractor or contractors. Landlord agrees not
to charge such 15% administration and overhead fee on real estate taxes,
Landlord's property- insurance on the Shopping Center, Landlord's liability
insurance or the management fee. Tenant's pro rata share shall be computed by
multiplying Landlord's costs by a fraction having as its numerator the Floor
Area of the Demised Premises as set out in Paragraph l(a) and as its denominator
the Gross Leased Area of the Shopping Center. Landlord shall bill Tenant for
such costs as a separate charge in advance on the first day of each calendar
month in an amount estimated by Landlord. Such estimate will be based on
Landlord's projected costs for operating and maintaining the Common Areas for
that calendar year.
After the end of each calendar year, Landlord will furnish to Tenant a
statement showing in reasonable detail the amount of Landlord's costs for such
services for the preceding calendar year, any deficit will be paid by Tenant
within thirty (30) days after demand from Landlord. Any surplus will be applied
against Guaranteed Minimum Rent thereafter coming due. The annual
-22-
<PAGE>
and monthly payments for the ensuing calendar year shall be estimated
accordingly. Changes in applicable Floor Areas shall result in corresponding pro
rata adjustments.
The following items shall not be included in any Common Area costs,
Food Park Area charges and/or charges that are payable by Tenant:
(i) debt service of any loans related to any part of the
Shopping Center, including any interest thereon, or any expenses or
charges related to or arising out of such loans;
(ii) rents arising out of or becoming due under any underlying
ground lease, together with any expenses or charges related to or
arising out of such ground lease;
(iii) costs incurred in the encapsulation, disposal, removal
or abatement of Hazardous Materials from within, upon or beneath the
Shopping Center;
(iv) cost of repairs or replacements to cure latent defects in
the structural elements of the Shopping Center;
(v) capital expenditures or depreciation, except for capital
expenditures that will reduce the cost of maintaining the Common Areas
and depreciation of equipment used to maintain the Common Areas;
(vi) contributions to any "reserve fund" (or the like) which
Landlord may maintain for the purpose of paying costs associated with
any future repairs, replacements or modification of the Common Areas or
Food Park Area;
(vii) expenditures for the initial improvements constructed
upon the Shopping Center or for expenditures for the initial
improvements of any expansion, alteration or modification thereof;
(viii) costs of any items to the extent Landlord is reimbursed
from insurance proceeds;
(ix) wages, salaries, or other benefits paid to any off-site
employees except to the extent of the management fee and the fifteen
percent (15%) administrative fee specifically set forth in Paragraphs
9(b) and 9(d) of this Lease is applied thereto;
(x) costs, disbursements or expenses (including, but not
limited to, advertising expenses, legal fees, vacancy costs, rent or
other rent concessions and/or refurbishment or improvement expenses,
leasing commissions, attorneys' fees) incurred in connection with or
arising out of negotiations or disputes with tenants or other occupants
or prospective tenants of the Shopping Center, or associated with the
enforcement, defense, execution or renewal of any lease or recovery of
possession of any tenant's premises 'or the defense of Landlord's title
to or interest in the Shopping Center or any part thereof or defense of
any alleged violation by Landlord of any lease affecting the Shopping
Center or part thereof;
-23-
<PAGE>
(xi) increases in insurance premiums due specifically as a
result of another tenant's use of its premises or due to a violation by
another tenant of its lease;
(xii) repairs, restoration or other work resulting from any
eminent domain proceeding or similar governmental or quasi-governmental
taking or deed or sale in lieu thereof,
(xiii) costs that the Landlord is entitled to recover from
third party-contractors or warrantors as a result of provisions
contained in their specific contracts and/or warranties;
(xiv) costs related to or compensation to employees or other
persons utilized in commercial concessions (other than Landlord's
customer service booth or similar concession) owned or operated by
Landlord, except where concessions owned are offered solely for the
benefit of the tenants or other occupants of the Shopping Center;
(xv) costs, fines or penalties incurred due to violations by
Landlord of any lease or any governmental laws, rules or regulations;
or
(xvi) overhead and profit paid to any subsidiary or affiliate
of Landlord to the extent that the cost thereof would not have been
paid had the services and materials been provided by an unaffiliated
third party on a competitive basis.
(c) Security. Landlord may, from time to time and to the extent it
deems appropriate in its reasonable discretion, determine whether to supply
security services in the Common Areas and additional traffic control for the
Shopping Center. Notwithstanding any other provision of this Lease, Landlord
shall not be liable for any loss or damages suffered by Tenant or anyone else by
failure to supply such services or for any loss attributable to such services
when they are supplied, no matter how caused. It is specifically understood and
agreed that, by supplying such services, Landlord shall not be deemed to relieve
Tenant of its duty to maintain security within the Demised Premises nor of its
performance of the terms, covenants and conditions of this Lease. If any such
security services are provided, the costs for the same shall be included in
Common Area costs set out in Paragraph 9(b) above.
(d) It is understood that Landlord may permit one or more "Mass
Transit" stops in the Common Areas of the Shopping Center for public
transportation at such locations and at such times, from time to time, as
Landlord may desire.
(e) Tenant shall pay its pro rata share of the costs and expenses, if
any, to Landlord for compliance with any governmental law, statute or regulation
in connection with any environmental or energy controls enacted after the date
hereof including, but not limited to, any governmental parking tax, on the same
basis as provided for the cost of Common Area Maintenance under Paragraph 9(b),
provided such expense is amortized in accordance with generally accepted
accounting principles.
-24-
<PAGE>
(f) Notwithstanding any provisions of this Lease, if any governmental
law, statute, ordinance, regulation, executive order or proclamation or other
governmental requirement or any governmental regulation approved by Landlord
requires or recommends that Landlord not perform any obligation as contained
herein in connection with any energy generation and any energy conservation or
use program, the Landlord may comply therewith without being deemed in violation
of this Lease.
10. Utilities.
During the Lease Term, Tenant shall pay for all electricity, heat,
air-conditioning, water, sewage, janitor service, garbage disposal and other
utilities or services required by it in the use of the Demised Premises.
Landlord may elect to furnish any such utilities or services to Tenant, or may
contract with a third party to provide such utilities and services to Tenant, in
which event Tenant agrees to purchase the same from Landlord or Landlord's
designee provided that Landlord or Landlord's designee shall not charge more for
those services than the consumer rate that would be charged by the public
service corporation, municipal authority or other entity, as the case may be,
supplying similar services to a similar sized commercial customer in the area in
which the Demised Premises are situated. In addition, Landlord may elect to
furnish heat and air-conditioning to the Demised Premises by a central system
serving other parts of the Shopping Center, in which event Landlord will pay for
the cost of utilities incurred in providing heating and air-conditioning and for
all repairs and replacements necessary to maintain the equipment (excluding any
repairs which are the obligation of Tenant pursuant to Paragraph 8), and Tenant
will pay to Landlord in monthly installments for such heating and
air-conditioning, as additional rent, a sum determined on such reasonable and
non-discriminatory basis as Landlord may prescribe. Landlord reserves the right
thereafter to discontinue the use of said central system. Should Landlord elect
to install such system, Tenant agrees, at Tenant's expense, to connect Tenant's
equipment to Landlord 's system. Landlord may elect to supply Tenant with
electricity for lighting and miscellaneous power needs, in which event Tenant
will pay to Landlord in monthly installments for such electricity, as additional
rent, a sum determined in accordance with Exhibit F which is designated "Energy
Service and Energy Charges".
Tenant agrees to operate any separate heating and air-conditioning unit
in the Demised Premises during all hours that Tenant's store is open for
business and during all hours that the heat and air-conditioning units for the
enclosed mall area are in operation, but in no event later than 10:00 p.m. or
earlier than 8:00 a.m.
Landlord shall not be liable to Tenant for any damages should the
furnishing of any utilities by Landlord be interrupted or required to be
terminated because of necessary repairs or improvements or any cause beyond the
reasonable control of Landlord. Nor shall any such interruption or cessation
relieve Tenant from the performance of any of Tenant's covenants, conditions and
agreements under this Lease. However, in the event it becomes reasonably
necessary- for Tenant to cease operating its business within the Demised
Premises for a period of time in excess of three (3) consecutive business days
as a result of any interruption or termination in any utilities or services
required to be furnished by Landlord and in the further event that such
interruption or termination is due to the fault or negligence of Landlord or due
to repairs,
-25-
<PAGE>
installations or improvements which are the responsibility of Landlord, then
Guaranteed Minimum Rent and other charges under this Lease shall thereafter
abate until such services or utilities are restored.
11. Laws and Insurance Standards.
Tenant shall, during the Lease Term, at Tenant's sole cost and expense,
promptly comply with all laws, ordinances, rules, regulations, directives and
standards of all federal, state, county and municipal governments and all
departments and agencies thereof having jurisdiction over the Demised Premises
now or hereafter in effect. Tenant shall, at Tenant's sole cost and expense,
make all changes to the Demised Premises which are or hereafter may be required
in order to comply with the foregoing. Notwithstanding the foregoing, Tenant
shall not be required to make any structural changes to the Demised Premises due
to the provisions of this Paragraph 11. Tenant expressly covenants and agrees to
indemnify and save Landlord harmless from any penalties, damages or charges
imposed for any violation of any of the covenants herein expressed, whether
occasioned by Tenant or any person upon the Demised Premises by license or
invitation of Tenant or holding or occupying the same or any part thereof under
or by right of Tenant. If Tenant fails to comply with any of the foregoing, and
as the result thereof the premiums for any insurance which Landlord may then or
thereafter have covering the Shopping Center or any part thereof are increased,
then, without limiting Landlord's other remedies or rights in regard to such
failure, Tenant shall pay to Landlord on demand all increases in any such
insurance premiums on the Shopping Center, or such part of any such increase as
Landlord may require on a reasonable basis.
Tenant shall have no claim against Landlord for any damages should
Tenant's use and occupancy of the Demised Premises for the purposes set forth in
this Lease be prohibited or substantially impaired by reason of any law,
ordinance or regulation of federal, state, county or municipal governments or by
reason of any act of any legal or governmental or other public authority.
Landlord shall be required to obtain all governmental licenses and permits and
comply with all requirements, laws, ordinances, rules, regulations, directives
and standards of all federal, state, county and municipal governments or
agencies or constituted public authorities having jurisdiction thereof
applicable to Landlord's lease obligations and its operation of the Shopping
Center.
12. Indemnification of Landlord and Tenant and Liability Insurance.
(a) Subject to Paragraph 13(c), Tenant shall indemnify, defend and hold
Landlord harmless from suits, actions, damages, liability and expense in
connection with loss of life, bodily or personal injury or property damage
arising from or out of any occurrence in, upon, at or from the Demised Premises
or the occupancy or use by Tenant of the Demised Premises or any part thereof,
or occasioned wholly or in part by any act or omission by Tenant, its agents,
contractors, employees, servants, invitees, licensees or concessionaires.
(b) Tenant shall store its property in, and shall occupy, the Demised
Premises at its own risk. Landlord and its agents, employees and contractors
shall not be liable for, and Tenant hereby releases, all claims for bodily
injury, death or property damage sustained by Tenant, or
-26-
<PAGE>
any person claiming through Tenant, and resulting from any fire, accident,
occurrence or condition in or upon the Demised Premises or within the Shopping
Center. In particular, Landlord shall not be liable for (i) any loss or damage
to merchandise, equipment, fixtures or other personal property of Tenant, or to
Tenant's business; (ii) any injury, loss or damage to any person or to any
property of Tenant or any other person that may be occasioned by or through the
acts or omissions of persons occupying other premises in the Shopping Center;
(iii) any injury, loss or damage to any person or to any property of Tenant or
any other person caused by or resulting from bursting, breakage, leakage,
running, backing up, seepage or overflow of water or sewage in any part of the
Demised Premises or the Shopping Center; from steam, snow or ice; or from any
defect in or negligence in the occupancy, construction, operation or use of the
Demised Premises, the Shopping Center or any machinery, apparatus or equipment
located therein. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Demised Premises. The foregoing indemnity contained in
Paragraph 12(a) and the waiver contained in this Paragraph 12(b) shall not apply
to liability for bodily injury, death or property damage occurring within the
Demised Premises and caused by the negligence or intentional misconduct of
Landlord, its agents or employees (acting within the scope of their employment
by Landlord), to the extent that liability for such occurrence is not coverable
by the type of insurance required to be maintained by Tenant pursuant to this
Lease.
(c) Tenant shall at all times during the Lease Term maintain in full
force and effect the following insurance in standard form generally in use in
the Commonwealth of Virginia, with insurance companies licensed to do business
in said Commonwealth on an admitted basis, which have a financial rating of at
least A:XII as rated in the most recent edition of Best Insurance Reports and
which have been in business for over five (5) years:
(i) Comprehensive public liability insurance covering bodily
injury, death and property damage in the amount of at least One Million
and no/100 Dollars ($1,000,000.00) per occurrence, with an aggregate
limit of at least One Million and no/100 Dollars ($1,000,000.00). In
addition, Tenant shall maintain an umbrella policy of public liability
insurance in the amount of at least Five Million and no/100 Dollars
($5,000,000.00) per occurrence, with an aggregate limit of at least
Five Million and no/100 Dollars ($5,000,000.00).
(ii) Tenant further agrees that the insurance contained in
subsection (i) above, (1) shall not contain the "care, custody and
control" exclusion, or in the alternative, (2) it shall obtain extended
coverage fire legal liability insurance in the amount of at least Fifty
Thousand and no/100 Dollars ($50,000.00) per occurrence.
The insurance required by this Paragraph 12(c) shall: (i) name
Landlord and any holder of a first deed of trust encumbering the
Demised Premises as additional insureds, (ii) contain a contractual
liability endorsement; (iii) contain an endorsement requiring thirty
(30) days' written notice from the insurance company to all insureds
prior to the cancellation of the policy, of any change in coverage,
scope or amount of the policy; and (iv) contain an endorsement
providing that no act or omission of any insured shall invalidate the
interest of any other insured, or constitute a defense against the
claims of
-27-
<PAGE>
such insured. Prior to the commencement of Tenant's Work, and
thereafter not less than thirty (30) days prior to the expiration of
any such policy, Tenant shall deliver to Landlord copies of such
policies or certificates evidencing the same, together with
satisfactory evidence of proof of payment of premiums.
(d) Tenant shall, at all times during the Lease Term, maintain
workmen's compensation insurance to comply with the applicable laws of the
Commonwealth of Virginia.
(e) The insurance required by this Paragraph 12 may be included in
policies of insurance covering multiple locations, provided that: (i) in all
other respects, each such policy shall comply with the requirements of this
Paragraph 12; (ii) the policy shall specify, or the insuring party shall furnish
the other party with a written certificate from the insurer specifying, (A) the
maximum amount of the total insurance afforded by the blanket policy to the
Demised Premises or the Shopping Center, as the case may be, and (B) any
sublimits in the blanket policy applicable to the Demised Premises or the
Shopping Center, as the case may be, which amounts shall not be less than the
amounts required by this Paragraph 12; and (iii) the protection afforded the
insuring party under the blanket policy shall be no less than that which would
have been afforded under a separate policy or policies relating only to the
Demised Premises or the Shopping Center, as the case may be.
(f) As used in this Paragraph 12, the term "Landlord" shall be deemed
to include any person or entity with which Landlord contracts to manage the
Shopping Center.
13. Property Insurance, Damage and Destruction.
(i) Subject to the provisions of Paragraph 4, at all times
during the Lease Term, Landlord shall pay all premiums for and maintain
in effect, with a responsible insurance company or companies, policies
of insurance covering the building of which the Demised Premises
constitute a part, providing protection to the extent of not less than
ninety percent (90%) of the insurable value of said building, including
Tenant's Work, against all casualties included under standard insurance
industry practices within the classification "Fire and Extended
Coverage, Vandalism and Malicious Mischief" and including Sprinkler
Leakage Insurance. At its option, Landlord may elect to insure the
building of which the Demised Premises constitute a part against all
insured casualties included under standard insurance practices within
the classification "Combined All Risk Fire and Boiler", including flood
and earthquake protection. Nothing in this Paragraph 13(a) shall
prevent the taking out of policies of blanket insurance, which may
cover real and/or personal property and improvements in addition to the
building of which the Demised Premises constitute a part; provided,
however, that in all other respects each such policy shall comply with
the other provisions of this Paragraph 13(a). Nothing herein shall be
construed to require Landlord to insure those items that Tenant is
obligated to insure pursuant to Paragraph 13(b) hereof. In order to
assist Landlord in deciding the amount of insurance which it will
obtain for Tenant's Work, Tenant shall furnish to Landlord, upon the
completion of its work, and from time to time thereafter,
-28-
<PAGE>
such evidence as the Landlord may reasonably require as to the cost or
value thereof. Landlord shall not be bound by such information.
(b) At all times during the Lease Term, Tenant shall pay all premiums
for and maintain in effect, with insurance companies licensed to do business in
said Commonwealth on an admitted basis, which have a financial rating of at
least A:XII as rated in the most recent edition of Best Insurance Reports and
which have been in business for over five (5) years, the following insurance
policies:
(i) Insurance covering Tenant's trade fixtures, furniture,
inventory and equipment used in the Demised Premises providing
protection to the extent of the actual replacement costs thereof
against all casualties included under standard insurance industry
practices within the classification "Fire and Extended Coverage,
Vandalism and Malicious Mischief" including Sprinkler Leakage Coverage
and covering loss of income and extra expenses from such casualty.
(ii) Plate Glass Insurance covering the plate glass in the
Demised Premises.
(iii) Business Interruption Insurance for twelve (12) months.
The policies of insurance required by this Paragraph 13(b): (i) shall
name Landlord and any holder of a first deed of trust encumbering the Demised
Premises as additional insureds, (ii) contain an endorsement requiring thirty
(30) days' written notice from the insurance company to all insureds prior to
the cancellation of the policy or any change in the coverage, scope or amount of
the policy, and (iii) that Tenant shall be solely responsible for the payment of
all premiums under such policy and that Landlord shall have no obligation for
the payment thereof. Tenant will furnish to Landlord, within thirty (30) days
before Tenant opens for business, and from time to time thereafter, copies of
policies or certificates of insurance evidencing coverages required by this
Lease.
(c) Tenant and Landlord, respectively, hereby release each other and
their respective employees, directors, agents or invitees from any and all
liability or responsibility to the other except if such loss may have been
occasioned by the negligence or willful acts of such other party, its employees,
directors, agents or invitees for all claims or any one claiming by, through or
under it or them by way of subrogation or otherwise for any loss or damage to
the extent Tenant or Landlord is required to maintain insurance (or has
otherwise agreed to self insure) pursuant to this Paragraph 13, whether or not
such insurance is in fact maintained. Tenant and Landlord agree to notify their
respective insurers of the release of subrogation claims. If the foregoing
release shall contravene any law with respect to exculpatory agreements, the
liability of the party in question shall be deemed not released but shall be
secondary to the other's insurer.
(d) If the Demised Premises shall be partially damaged by fire or other
casualty insured under Landlord's insurance policies, then upon Landlord's
receipt of the insurance proceeds, Landlord shall, except as otherwise provided
herein, repair and restore the same (exclusive of Tenant's trade fixtures,
decorations, signs and contents) substantially to the condition thereof
immediately prior to such damage or destruction, limited, however, to the
-29-
<PAGE>
extent of the insurance proceeds received by Landlord therefor. If (a) the
Demised Premises is rendered wholly untenantable, or (b) the Demised Premises is
damaged in whole or in part as a result of a risk which is not covered by
Landlord's insurance policies or (c) the Demised Premises is damaged in whole or
in part during the last three (3) years of the term (or of any renewal term)
hereof, or (d) the building of which the Demised Premises forms a part or all of
the buildings which then comprise the Shopping Center is or are damaged (whether
or not the Demised Premises is damaged) to such an extent that the Shopping
Center cannot in the sole judgment of Landlord be operated as an integral unit,
then or in any of such events, Landlord may elect either to repair the damages
as aforesaid, or to cancel this Lease by written notice of cancellation given to
Tenant within one hundred twenty (120) days after the date of such occurrence,
and thereupon this Lease shall cease and terminate with the same force and
effect as though the date set forth in the Landlord's said notice were the date
herein fixed for the expiration of the term hereof and Tenant shall vacate and
surrender the Demised Premises to Landlord. Upon the termination of this Lease,
as aforesaid, Tenant's liability for the rents reserved hereunder shall cease as
of the effective date of the termination of this Lease, subject, however, to the
provisions for the prior abatement of rent hereinafter set forth. Unless this
Lease is terminated by Landlord, as aforesaid, this Lease shall remain in full
force and effect and the parties waive the provisions of any law to the
contrary, and Tenant shall repair, restore or replace Tenant's trade fixtures,
decorations, signs, and contents in the Demised Premises in a manner and to at
least a condition equal to that existing prior to their damage or destruction
and the proceeds of all insurance carried by Tenant on said property shall be
held in trust by Tenant for the purposes of such repair, restoration or
replacement. If by reason of such fire or other casualty the Demised Premises is
rendered wholly untenantable the Guaranteed Minimum Rent shall be fully abated,
or if only partially damaged such rent shall be abated proportionately on a
square footage basis as to that portion of the Demised Premises rendered
untenantable, in either event (unless Landlord shall elect to terminate this
Lease, as aforesaid) until fifteen (15) days after notice by Landlord to Tenant
that the Demised Premises have been substantially repaired and restored or until
Tenant's business operations are restored in the entire Demised Premises,
whichever shall occur sooner. Tenant shall continue the operation of Tenant's
business in the Demised Premises or any part thereof not so damaged during any
such period to the extent reasonably practicable from the standpoint of prudent
business management and, except for such abatement of the Guaranteed Minimum
Rent as hereinabove set forth, nothing herein contained shall be construed to
abate Tenant' s obligations for the payment of the Percentage Rent or any other
additional rents and charges reserved hereunder, except that the computation of
such Percentage Rent shall be based upon the revised Guaranteed Minimum Rent as
the same may be abated. If such damage or other casualty shall be caused by the
negligence of the Tenant or of Tenant's subtenants, concessionaires, licensees,
contractors or invitees or their respective agents or employees, there shall be
no abatement of rent. Except for the abatement of the Guaranteed Minimum Rent
hereinabove set forth, Tenant shall not be entitled to and hereby waives all
claims against Landlord for any compensation or damage for loss of use of the
whole or any part of the Demised Premises and/or for any inconvenience or
annoyance occasioned by any such damage, destruction, repair or restoration. If
the Demised Premises are damaged or destroyed, and Landlord does not elect to
exercise its right to terminate this Lease, Landlord shall give Tenant written
notice within ninety (90) days after the date of such damage or destruction as
to the approximate length of time it shall take Landlord to restore the Demised
Premises, and if this estimate for repair or restoration
-30-
<PAGE>
is greater than eighteen (18) months after such damage, Tenant shall have the
right to terminate this Lease, as of the date of such damage, within thirty (30)
days after receipt of such written notice from Landlord by giving Landlord
written notice of cancellation. If such repairs are not completed within
eighteen (18) months from the date of damage, Tenant may terminate this Lease
within thirty (30) days after the expiration of said twelve (12) month period.
In the event of such cancellation, both parties shall be relieved of all
obligations under this Lease saving and excepting those obligations accruing
before the date of such cancellation.
14. Ownership of Certain Property and Surrender of Premises.
Upon the termination of this Lease, Tenant shall surrender to Landlord
the Demised Premises, including, without limitation, all buildings, apparatus
and fixtures (except signs, trade fixtures and furniture installed by Tenant)
then upon the Demised Premises, broom clean and in good condition and repair,
and all alterations, improvements, additions, machinery and equipment which may
be made or installed from time to time by either party hereto to, in, upon or
about the Demised Premises; and, upon such termination, such property shall be
surrendered to Landlord by Tenant without injury, damage or disturbance thereto
or payment therefor. The property to be surrendered shall include, but not be
limited to, all components of the heating and air-conditioning (including the
portion thereof outside the Demised Premises, if any), plumbing and electrical
systems, lighting fixtures and fluorescent tubes and bulbs, all dumbwaiters,
conveyors and all partitions (whether removable or otherwise). Tenant shall
promptly repair any damage to the Demised Premises resulting from the
installation or removal of any of the foregoing items.
15. Landlord's Entry, Easement for Pipes and Excavation.
(a) Landlord's Entry. Landlord shall have the right to enter upon the
Demised Premises at all reasonable times during the Lease Term for the purposes
of inspection, maintenance, repair and alteration and to show the same to
prospective tenants or purchasers, provided that Landlord shall not materially
interfere with Tenant's operations in the Demised Premises.
(b) Easement for Pipes. Tenant shall permit Landlord to erect, use,
maintain and repair pipes, cables, conduits, plumbing, vents and wire in, to and
through the Demised Premises as often and to the extent that Landlord may now or
hereafter deem to be necessary or appropriate for the proper operation and
maintenance of the Shopping Center, provided, no such use shall be visible from
the sales area of the Demised Premises unless essential, and such work shall be
performed with a minimum of disruption to Tenant and the business conducted at
the Demised Premises.
(c) Excavation. If an excavation shall be made upon land adjacent to
the Demised Premises, or shall be authorized to be made, Tenant shall afford to
the person causing or authorized to cause such excavation, license to enter upon
the Demised Premises for the purpose of doing such work as Landlord shall deem
necessary to preserve the wall or the building of which the Demised Premises
form a part from injury or damage to support the same by proper
-31-
<PAGE>
foundations, without any claim for damages or indemnification against Landlord
or diminution or abatement of any rent.
16. Default.
(a) Each of the following shall constitute an Event of Default: (i)
Tenant's failure to make any payment of Guaranteed Minimum Rent, Percentage
Rent, additional rent or any other rent or sum of money becoming due under this
Lease after any such payment's due date; (ii) Tenant's failure to take
possession of the Demised Premises within thirty (30) days after Landlord has
delivered the Demised Premises to Tenant pursuant to Paragraph 5; (iii) Tenant's
violation or failure to perform or observe any other covenant or condition
within thirty (30) days after notice thereof from Landlord; or if such violation
or failure is remediable but is of such a nature that it cannot be remedied
within such thirty (30) day period, then for such longer period as may
reasonably be required provided that Tenant promptly commences and diligently
pursues such remedy to completion; (iv) Tenant's abandonment or vacation of the
Demised Premises; (v) an Event of Bankruptcy as specified in Paragraph 17 with
respect to Tenant, any general partner of Tenant (a "General Partner") or any
Guarantor; or (vi) Tenant's dissolution or liquidation.
(b) If there shall be an Event of Default, including an Event of
Default prior to the Rent Commencement Date, then Landlord shall have the right,
at its sole option, to terminate this Lease. In addition, with or without
terminating this Lease, Landlord may re-enter, terminate Tenant's right of
possession and take possession of the Demised Premises. In the event of an Event
of Default due to Tenant's non-payment of Guaranteed Minimum Rent, Percentage
Rent, additional rent or any other charges due hereunder, then Landlord shall
give Tenant written notice of non-payment and a ten (10) day opportunity to cure
such Event of Default prior to exercising its rights under this Paragraph 16.
The provisions of this Paragraph 16 shall operate as a notice to quit, any other
notice to quit or of Landlord's intention to re-enter the Demised Premises being
hereby expressly waived. If necessary, Landlord may proceed to recover
possession of the Demised Premises under and by virtue of the laws of the State
in which the Shopping Center is located in, or by such other proceedings,
including re-entry and possession, as may be applicable. If Landlord elects to
terminate this Lease and/or elects to terminate Tenant's right of possession,
then everything contained in this Lease to be done and performed by Landlord
shall cease, without prejudice, however, to Landlord's right to recover from
Tenant all rent and other sums accrued through the later of termination or
Landlord's recovery of possession. Whether or not this Lease and/or Tenant's
right of possession is terminated, Landlord shall use reasonable efforts to
relet the Demised Premises or any part thereof, however, nothing herein shall
require Landlord to lease the Demised Premises over other vacant space in the
Shopping Center, alone or together with other premises, for such rent and upon
such terms and conditions (which may include concessions or free rent and
alterations of the Demised Premises) as Landlord, in its sole discretion, may
determine, but Landlord shall not be liable for, nor shall Tenant's obligations
be diminished by reason of, Landlord 's failure to relet the Demised Premises or
collect any rent due upon such reletting. Whether or not this Lease is
terminated, Tenant nevertheless shall remain liable for any Guaranteed Minimum
Rent, Percentage Rent, additional rent or damages which may be due or sustained
prior to such default, all costs, fees and expenses (including without
limitation reasonable attorneys' fees, brokerage fees and
-32-
<PAGE>
expenses incurred in reletting and placing the Demised Premises in first-class
rentable condition, including improvements and tenant finish necessitated to
obtain the new tenant) incurred by Landlord in pursuit of its remedies and in
renting the Demised Premises to others from time to time. Tenant shall also be
liable for additional damages which at Landlord's election shall be either:
(i) an amount equal to the Guaranteed Minimum Rent and
additional rent which would have become due during the remainder of the
Lease Term, less the amount of rent, if any, which Landlord receives
during such period from others to whom the Demised Premises may be
rented (other than additional rent payable as a result of any failure
of such other person to perform any of its obligations), which damages
shall be computed and payable in monthly installments, in advance, on
the first day of each calendar month following Tenant's default and
continuing until the date on which the Lease Term would have expired
but for Tenant's default. Separate suits may be brought to collect any
such damages for any month(s), and such suit shall not in any manner
prejudice Landlord 's right to collect any such damages for any
subsequent month(s), or Landlord may defer any such sums until after
the expiration of the Lease Term, in which event the cause of action
shall be deemed not to have accrued until the expiration of the Lease
Term; or
(ii) an amount equal to the present value (as of the date of
Tenant's default) of Guaranteed Minimum Rent and Percentage Rent which
would have become due during the remainder of the Lease Term, which
damages shall be payable to Landlord in one lump sum on demand. For the
purpose of this Paragraph 16(b), present value shall be computed by
discounting at a rate equal to one (1) whole percentage point above the
discount rate then in effect at the Federal Reserve Bank of New York.
Tenant waives any right of redemption, re-entry or restoration of the
operation of this Lease under any present or future law, including any
such right which Tenant would otherwise have if Tenant shall be
dispossessed for any cause.
(c) Landlord's rights and remedies set forth in this Lease are
cumulative and in addition to Landlord's other rights and remedies at law or in
equity, including those available as a result of any anticipatory breach of this
Lease. Landlord's exercise of any such right or remedy shall not prevent the
concurrent or subsequent exercise of any other right or remedy. Landlord's delay
or failure to exercise or enforce any of Landlord's rights or remedies or
Tenant's obligations shall not constitute a waiver of any such rights, remedies
or obligations. Landlord shall not be deemed to have waived any default unless
such waiver expressly is set forth in an instrument signed by Landlord. If
Landlord waives in writing any default, then such waiver shall not be construed
as a waiver of any covenant or condition set forth in this Lease except as to
the specific circumstances described in such written waiver. Neither Tenant's
payment of a lesser amount than the sum due hereunder nor Tenant's endorsement
or statement on any check or letter accompanying such payment shall be deemed an
accord and satisfaction, and Landlord may accept the same without prejudice to
Landlord's right to recover the balance of such sum or to pursue any other
remedy available to Landlord. Landlord's re-entry and acceptance of keys shall
not be considered an acceptance of a surrender of this Lease.
-33-
<PAGE>
(d) If more than one natural person and/or entity shall execute this
Lease as Tenant, then the liability of each such person or entity shall be joint
and several. Similarly, if Tenant is a general partnership or other entity the
partners or members of which are subject to personal liability, then the
liability of each such partner or member shall be joint and several.
(e) If Tenant fails to make any payment to any third party or to do any
act herein required to be made or done by Tenant, then Landlord may, but shall
not be required to, make such payment or do such act. Landlord's taking such
action shall not be considered a cure of such failure by Tenant or prevent
Landlord from pursuing any remedy to which it is otherwise entitled in
connection with such failure. If Landlord elects to make such payment or do such
act, then all expenses incurred, plus interest therein at the lesser of: (i) a
rate per annum (the "Default Rate") which is five (5) whole percentage points
higher than the Prime Rate as published in the Wall Street Journal or if such
rate is no longer published then the rate which is five (5) whole percentage
points in excess of the Prime Rate of American Security Bank (Washington, D.C.),
or (ii) the highest non-usurious rate permitted under the laws of the
jurisdiction where the Shopping Center is located, from the date incurred to the
date of payment thereof by Tenant, shall constitute additional rent.
(f) In order to enable Tenant to finance or refinance the purchase of
trade fixtures, equipment and inventory, Landlord agrees to subordinate any lien
which it may have on Tenant's trade fixtures, equipment and inventory- to the
rights of any bona fide mortgagee or secured creditor of Tenant for the purpose
of financing said trade fixtures, equipment and inventory for use in the Demised
Premises. Landlord will permit any lender to have full rights to the collateral
listed above.
17. Bankruptcy.
The following shall be Events of Bankruptcy under this Lease: (i)
Tenant, a Guarantor or a General Partner becoming insolvent, as that term is
defined in Title 11 of the United States Code (the "Bankruptcy Code"), or under
the insolvency laws of any state (the "Insolvency Laws"); (ii) appointment of a
receiver or custodian for any property of Tenant, a Guarantor or a General
Partner, or the institution of a foreclosure or attachment action upon any
property of Tenant, a Guarantor or a General Partner; (iii) filing of a
voluntary petition by Tenant, a Guarantor or a General Partner under the
provisions of the Bankruptcy Code or Insolvency Laws; (iv) filing of an
involuntary petition against Tenant, a Guarantor or a General Partner as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which either (x) is
not dismissed within sixty (60) days of filing, or (y) results in the issuance
of an order for relief against the debtor; or (v) Tenant, a Guarantor or a
General Partner making or consenting to an assignment for the benefit of
creditors or a composition of creditors.
18. Remedies Cumulative - Nonwaiver
No remedy herein or otherwise conferred upon or reserved to Landlord or
Tenant shall be considered exclusive of any other remedy, but the same shall be
distinct, separate and cumulative and shall be in addition to every other remedy
given under this Lease, or now or hereafter existing at law or in equity or by
statute; and every power and remedy given by this Lease to
-34-
<PAGE>
Landlord or Tenant may be exercised from time to time as often as occasion may
arise, or as may be deemed expedient. No delay or omission of Landlord or Tenant
to exercise any right or power arising from any default on the part of the other
shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence thereto. In particular, the receipt by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach and no provision of this Lease shall
be deemed to have been waived by Landlord unless such waiver is in writing and
signed by Landlord.
19. Eminent Domain
If any substantial part of the Demised Premises or more than thirty
percent (30%) of the total Shopping Center is taken under the power of eminent
domain (including any conveyance made in lieu thereof), and such taking makes
the operation of Tenant's business on the Demised Premises impractical, then
Tenant shall have the right to terminate this Lease by giving Landlord written
notice of such termination within thirty (30) days after such taking; and if
Tenant does not so elect to terminate this Lease, Landlord, at its option, may
either terminate this Lease or apply the proceeds of such condemnation to repair
and restore the Demised Premises to tenantable condition, in which case the
rental to be paid by Tenant hereunder shall be proportionately and equitably
reduced.
All compensation awarded for any taking (or the proceeds of private
sale in lieu thereof) whether for the whole or a part of the Demised Premises,
shall be the property of Landlord, whether such award is compensation for
damages to Landlord's or Tenant's interest in the Demised Premises, and Tenant
hereby assigns all of its interest in any such award to Landlord; provided,
however, Landlord shall have no interest in any award made to Tenant for
relocation expenses or for the taking of Tenant's trade fixtures and other
property within the Demised Premises (which Tenant is authorized to remove at
termination pursuant to Paragraph 14) if a separate award of such items is made
to Tenant, but any such award to Tenant shall be subject to the prior rights of
the first mortgagee.
20. Financial Information; Statement of Tenant; Amendment of Lease
(a) During the Lease Term, Tenant shall, within fifteen (15) days of
written request by Landlord, deliver to Landlord any and all of the following:
(i) Such financial information concerning Tenant and Tenant's
business operations (and the Guarantor of this Lease, if the Lease is
guaranteed) as may be reasonably requested by Landlord or any mortgagee
or prospective mortgagee or purchaser of the Shopping Center.
(ii) An executed and acknowledged instrument amending this
Lease in such respects as may be required by any holder or prospective
holder of a mortgage or deed of trust on the Demised Premises, provided
that any such amendment shall not affect the Lease Term or the rent or
other charges to be paid by Tenant under this Lease.
-35-
<PAGE>
(b) Any financial information delivered pursuant to Paragraph 20(a)(i)
and any amendment delivered pursuant to Paragraph 20(a)(ii) may be relied upon
by any mortgagee, prospective mortgagee or prospective purchaser of the Shopping
Center; provided, however, that any such financial information and any such
amendment shall be utilized only for bona fide business reasons related to such
mortgage, purchase and/or obtaining thereof, except where the contrary is
required by law. Landlord agrees to keep such information confidential, except
as may be contemplated in this Paragraph 20 and except as may be required by
law.
21. Assignment, Subletting and Hypothecation of Lease.
(a) Except as expressly permitted in Paragraph 21(c), Tenant shall not
voluntarily or by operation of law, assign, transfer, mortgage or otherwise
encumber all or any part of Tenant's interest in this Lease or in the Demised
Premises or sublet the whole or any part of the Demised Premises without first
obtaining the prior written consent of Landlord, which consent shall be at the
uncontrolled discretion of Landlord. The consent by Landlord to any assignment
or subletting shall not constitute a waiver of the necessity for such consent to
any subsequent assignment or subletting. Receipt by Landlord of rent due
hereunder from any party other than Tenant shall not be deemed to act as a
consent to any such assignment or subletting, nor relieve Tenant of its
obligation to pay the rent provided in this Lease for the full Lease Term.
In no event shall an assignment or sublease be permitted to any entity
which is (i) an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, (ii) an entity whose assets
constitute plan assets of one or more such plans within the meaning of 29 C.F.R.
Section 2510.3-101, or (iii) subject to state statutes regulating investments of
an fiduciary obligations with respect to governmental plans.
(b) Except for assignments or subleases that are allowed without
Landlord's consent, if at any time Tenant wants to assign, sublet or otherwise
transfer all or part of the Demised Premises or this Lease, then Tenant shall
give written notice to Landlord ("Sublease Proposal Notice") of the area
proposed to be assigned or sublet (the "Proposed Sublet Space") and the term for
which Tenant desires to sublet the Proposed Sublet Space and such other
information as Landlord shall request. Landlord shall have the right in its sole
and absolute discretion to terminate this Lease with respect to the Proposed
Sublet Space, however Tenant may void such termination by withdrawing the
sublease proposal. Landlord shall exercise such right by sending Tenant written
notice within forty-five (45) days after Landlord 's receipt of the Sublease
Proposal Notice. If the Proposed Sublet Space does not constitute the entire
Demised Premises and Landlord elects to terminate this Lease with respect to the
Proposed Sublet Space, then (i) Tenant shall tender the Proposed Sublet Space to
Landlord on a date specified in Landlord's notice (not more than sixty (60) days
after the date of such notice) as if such specified date had been originally set
forth in this Lease as the expiration date of the Lease Term with respect to the
Proposed Sublet Space, and (ii) as to all portions of the Demised Premises other
than the Proposed Sublet Space, this Lease shall remain in full force and effect
except that the Guaranteed Minimum Rent, Percentage Rent and additional rent
shall be reduced pro rata. Tenant shall pay all expenses of construction
required to permit the operation of the Proposed Sublet Space separate from the
balance of the Demised Premises. If the Proposed Sublet Space constitutes the
-36-
<PAGE>
entire Demised Premises and Landlord elects to terminate this Lease, then (i)
Tenant shall tender the Demised Premises to Landlord on a date specified in
Landlord 's notice (not more than sixty (60) days after the date of such
notice), and (ii) the Lease Term shall terminate on such specified date.
(c) In the event Tenant is a corporation and a subsidiary of another
corporation, it may, without Landlord's consent, assign this Lease to, or merge
with, its parent corporation or a subsidiary- of Tenant or Tenant's parent
corporation. Any other merger, or any dissolution, consolidation or other
reorganization of Tenant or the sale or other transfer (except as the result of
death) of more than fifty percent (50%) of the corporate stock of Tenant or
fifty percent (50%) of its voting stock or fifty percent (50%) of the ownership
interest of Tenant shall constitute an assignment of this Lease for all purposes
of this Paragraph 21 and is prohibited without the written consent of Landlord.
Landlord agrees not to unreasonably withhold its consent to any assignment
resulting from a merger, consolidation, sale or other transfer of assets having
like effect which is otherwise prohibited; provided that Landlord promptly
receives all information reasonably requested by Landlord relating thereto; and
provided further that neither the reputation, experience, net worth nor
financial condition of any such assignee is less than that of Tenant on the Rent
Commencement Date. Notwithstanding the foregoing, if Tenant shall become a
publicly held corporation, the sale of Tenant's stock pursuant to an initial
public offering shall not require Landlord's approval so long as Tenant remains
unchanged as an operating entity. Additionally, if Tenant's stock is listed and
traded on a national securities exchange or in the over-the-counter market, the
sale of Tenant's stock shall not require Landlord's approval as long as Tenant
remains unchanged as an operating entity.
(d) In the event Landlord consents to any transfer of Tenant's interest
in this Lease, or if Landlord's consent is not required, then the term "Tenant"
shall thereafter be deemed to include, without further reference, the party to
whom such interest is transferred, such as any subtenant, assignee,
concessionaire or licensee. If this Lease is assigned or if the Demised Premises
or any part thereof are occupied by anybody other than Tenant, without
Landlord's prior written consent, Landlord may, nevertheless, collect rent from
the alleged assignee or occupant and apply the net amount collected to rent
herein reserved; but such action shall not constitute a waiver of this Paragraph
21. Notwithstanding any assignment or sublease permitted by this Lease or
consented to by Landlord, Tenant and any Guarantor of this Lease shall remain
fully liable and shall not be released from performing any of the terms of this
Lease, even if this Lease is amended; but, in the case of an amendment without
Tenant' s written consent, after assignment, Tenant' s obligations shall be
limited to those existing at the time of assignment. If the Lease is assigned
and Tenant remains liable as set out in the preceding sentence, Landlord agrees
to provide Tenant with a copy of any notices of default.
(e) Any concession or license granted for any part of the sales area of
the Demised Premises shall be considered a sublease for the purposes of this
Paragraph 21.
(f) In the event Tenant assigns this Lease, or sublets all or
substantially all of the Demised Premises, and the rent and other amounts
payable by the assignee or sublessee exceed the rent and other amounts payable
by Tenant under this Lease, then the excess shall be paid to
-37-
<PAGE>
Landlord monthly in arrears, on or before the first (lst) day of each calendar
month, as additional rent.
22. Promotion of the Shopping Center.
(a) Marketing Fund. Landlord may, in Landlord's sole discretion,
establish a Marketing Fund ("Marketing Fund") and secure therewith professional
advertising and sales promotional services and activities for the benefit of the
Shopping Center or the Integrated Shopping Center. In connection with the
Marketing Fund, Landlord agrees to secure, in Landlord's sole discretion,
promotion and secretarial services and, using funds from the Marketing Fund, (i)
to pay the salaries and expenses for all personnel and (ii) to pay for the
rental, utilities, telephone and space used for securing the services of such
Marketing Fund. Tenant agrees to pay Landlord an amount as specified in
Paragraph 1 (k)(i) as a Marketing Fund contribution. Any partial calendar year
shall be prorated on a three hundred sixty-five (365) day basis. Tenant agrees
that at the end of every calendar year during the Lease Term, the annual
Marketing Fund fee described in Paragraph 1 (k)(i) shall be increased over the
fees payable in such calendar year in proportion to the increase in the
cost-of-living (determined as provided below) between the beginning date of such
calendar year and the ending date of such calendar year, such increase not to
exceed five percent (5 %) per year. Such increased fees shall be payable during
the next calendar year and shall be the base amounts used to calculate the next
increase in such fees. The base date applicable to calculating the increase at
the end of the first calendar year shall be January 1 of the year in which the
Rent Commencement Date occurs. The base date for each subsequent calendar year
after the first calendar year shall be January 1 of such year.
The cost-of-living on each such date shall be measured by the Consumer
Price Index For All Urban Consumers specified for all items, U.S. City Average
(1982-84 = 100) published on the date nearest to each such date by the Bureau of
Labor Statistics of the United States Department of Labor; or, if such index is
not then in use, by the index most nearly comparable thereto, as selected by
Landlord.
(b) Advertising Fund. Landlord may, in Landlord's sole discretion,
establish an Advertising Fund ("Advertising Fund") for the benefit of the
Shopping Center or the Integrated Shopping Center. Tenant agrees to pay Landlord
an amount as specified in Paragraph l(k)(ii) as a Advertising Fund contribution.
Any partial calendar year shall be prorated on a three hundred sixty-five (365)
day basis. Tenant agrees that at the end of every calendar year during the Lease
Term, the annual Advertising Fund fee described in Paragraph l(k)(ii) shall be
increased over the fees payable in such calendar year in proportion to the
increase in the cost-of-living {determined as provided in Paragraph 22(a) above}
between the beginning date of such calendar year and the ending date of such
calendar year, such increase not to exceed five percent (5%) per year. Such
increased fees shall be payable during the next calendar year and shall be the
base amounts used to calculate the next increase in such fees. The base date
applicable to calculating the increase at the end of the first calendar year
shall be January 1 of the year in which the Rent Commencement Date occurs. The
base date for each subsequent calendar year after the first calendar year shall
be January 1 of such year.
-38-
<PAGE>
(c) Merchant's Association. Until such time as Landlord shall elect to
provide the Marketing Fund service set forth in Paragraph 22(a) above or at such
time or times as Landlord shall not elect to provide the Marketing Fund, Tenant
agrees to become and remain a member of the Merchant's Association for the
entire Lease Term if established. Tenant agrees to pay as dues to said
Merchant's Association the amounts set forth in Paragraph 22(a) above as if
Landlord had established the Marketing Fund.
(d) Payments. The payments required to be made pursuant to this
Paragraph 22 shall be paid to Landlord at the address stated in Paragraph 4(f)
by Tenant in monthly installments in advance on the first day of each month and
shall be treated as additional rent. The failure of any other tenant in the
Shopping Center to contribute to the Merchant's Association, the Marketing Fund
or the Advertising Fund, shall not in any way release Tenant from Tenant's
obligations hereunder, such obligations being separate and independent covenants
of this Lease. Landlord agrees to notify- Tenant annually of any increases in
the charges set out in this Paragraph 22 and Tenant shall not be required to pay
any increases until it has received such notice(s), however it is understood and
agreed that such increased charge(s) shall be retroactive to the date(s)
provided herein.
23. Notices.
All notices provided for in this Lease shall be in writing and shall be
deemed to be given when sent by prepaid registered or certified mail, return
receipt requested, addressed to the parties at the notice addresses set out in
Paragraph 1 (p)(i) for Tenant and Paragraph 1 (q)(i) for Landlord. Either party
may, from time to time, by ten (10) days prior written notice given as provided
above, designate a different address to which notices to it shall be sent.
24. Holding Over.
If Tenant remains in possession of the Demised Premises or any part
thereof after the expiration of the Lease Term, Tenant shall be only a tenant at
will at a rent equal to one hundred fifty percent (150%) of the Guaranteed
Minimum Rent in effect immediately prior to the expiration of the Lease Term for
the first sixty (60) days of Tenant's holdover and thereafter at two hundred
percent (200%), together with other charges set forth in this Lease, and there
shall be no renewal of this Lease or exercise of an option by operation of law.
Notwithstanding anything contained herein to the contrary, the Guaranteed
Minimum Rent set out hereunder shall not be increased by virtue of Tenant 's
holding over for the first sixty- (60) days beyond the expiration of the Lease
Term, provided that the parties hereto are proceeding in good faith to negotiate
a renewal lease. It is understood and agreed, however, that when such renewal
lease is executed by both parties, all of its terms and provisions shall be
retroactive to the day following the date of the expiration of this Lease.
25. Subordination.
Landlord and Tenant agree that this Lease and the interest of the
Tenant herein be and the same hereby is made subject and subordinate at all
times to a certain Multi-Party Development and Operating Agreement entered into
between Landlord and various Major Stores adjoining the
-39-
<PAGE>
Shopping Center affecting the Shopping Center of which the Demised Premises
forms a part, which agreement or a short form thereof has been recorded in the
official records of Henrico County, Virginia, and to any future amendments or
modifications thereof and/or to any additional development and operating
agreements which may hereafter be entered into between Landlord and the
aforementioned Major Stores and/or any additional or different department
stores. Landlord and Tenant further agree that this Lease be and the same hereby
is made subject and subordinate at all times to all covenants, restrictions,
easements and encumbrances now or hereafter affecting the fee and/or leasehold
title of the Shopping Center property and the adjoining properties and to all
ground and underlying leases, and to any first mortgages in any amounts, and all
advances thereon which may now or hereafter be placed against or affect any or
all of the land and/or the Demised Premises and/or any or all of the buildings
and improvements now or at any time hereafter constituting a part of the
Shopping Center, and to all renewals, modifications, consolidations,
participations, replacements and extensions thereof. The term "mortgages" as
used herein shall be deemed to include trust indentures and deeds of trust. The
aforesaid provisions shall be self operative and no further instrument of
subordination shall be necessary unless required by any such ground or
underlying landlords or first mortgagees. Should Landlord or any ground or
underlying landlords or first mortgagees desire confirmation of such
subordination, then Tenant within ten (10) days following Landlord 's written
request therefore agrees to execute and deliver, without charge, any and all
documents (in form acceptable to Landlord and such ground or underlying
landlords or first mortgagees) subordinating this Lease, or a part thereof, and
the Tenant's rights hereunder. Should any such ground or underlying landlords or
any first mortgagees request that this Lease, or a part thereof, be made
superior, rather than subordinate, to any such ground or underlying lease and/or
first mortgage, then Tenant, within ten (10) days following Landlord 's written
request therefor, agrees to execute and deliver, without charge, any and all
documents (in form acceptable to Landlord and such ground or underlying
landlords or first mortgagees) effectuating such priority.
26. Transfer of Landlord's Interest.
In the event of the sale, assignment or transfer by Landlord of its
interest in the Shopping Center or in this Lease (other than a collateral
assignment to secure a debt of Landlord) to a successor in interest who
expressly assumes the obligations of Landlord under this Lease, Landlord shall
thereupon be released or discharged from all of its covenants and obligations
under this Lease, except such obligations as shall have accrued prior to any
such sale, assignment or transfer; and Tenant agrees to look solely to such
successor in interest of Landlord for performance of such obligations. Any
securities given by Tenant to Landlord to secure the performance of Tenant's
obligations under this Lease may be assigned by Landlord to such successor in
interest of Landlord; and, upon acknowledgment by such successor of receipt of
such security and its express assumption of the obligations to account to Tenant
for such security in accordance with the terms of this Lease, Landlord shall
thereby be discharged of any further obligation relating thereto. Landlord 's
assignment of this Lease or of any or all of its rights herein shall in no
manner affect Tenant's obligations hereunder. Tenant shall thereafter attorn and
look to such assignee as Landlord, provided Tenant has first received written
notice of such assignment of Landlord's interest.
-40-
<PAGE>
27. Warranty.
Landlord warrants that it has full right and authority to lease the
Demised Premises upon the terms and conditions set forth in this Lease; and that
Tenant shall peacefully and quietly hold and enjoy the Demised Premises for the
full Lease Term so long as it does not default in the performance of any of its
covenants.
Tenant hereby warrants that it has full right, power and authority to
enter into this Lease upon the terms and conditions herein set forth. If Tenant
signs as a corporation, each of the persons executing this Lease on behalf of
Tenant does hereby covenant and warrant that Tenant is a duly authorized and
existing corporation, qualified to do business in the State in which the
Shopping Center is located, that the corporation has full right and authority to
enter into this Lease, and that each and both of the persons signing on behalf
of the corporation were authorized to do so.
28. Short Form Lease.
This Lease shall not be recorded, however, upon request by either
Landlord or Tenant, upon the commencement of the Lease Term, the parties hereto
shall execute a memorandum or short form lease agreement in the form attached
hereto as Exhibit G, specifying the commencement and termination dates of the
Lease Term and including any other provisions hereof (exclusive of provisions
dealing with monetary terms) as either party may desire to incorporate herein.
29. Estoppel Certificate.
Within ten (10) days after request therefor by Landlord or any
mortgagee or trustee under a mortgage or deed of trust covering the Demised
Premises, or if, upon any sale, assignment or other transfer of the Demised
Premises by Landlord, an estoppel certificate shall be required from Tenant,
Tenant shall deliver in recordable form the estoppel certificate attached hereto
as Exhibit H to any proposed mortgagee or other transferee, or to Landlord,
certifying those facts contained therein that are then true with respect to this
Lease and specifying with particularity any of such facts which are not then
true with respect to this Lease.
30. Mechanics' Liens.
Tenant covenants and agrees to do all-things necessary to prevent the
filing of any mechanics' or other liens against Tenant's interest in this Lease
or in the Demised Premises by reason of work, labor, services or materials
supplied or claimed to have been supplied to Tenant, or anyone holding the
Demised Premises, or any part thereof, through or under Tenant. If any such lien
shall at any time be filed against Tenant's interest in the Demised Premises,
Tenant shall either cause the same to be discharged of record within twenty (20)
days after the date of filing of the same, or, if Tenant, in Tenant's sole
discretion and in good faith, determines that such lien should be contested,
shall furnish such security as may be necessary or required to prevent any
foreclosure proceedings against Tenant's interest in the Demised Premises during
the pendency of such contest. If Tenant shall fail to discharge such lien within
such period or fails to
-41-
<PAGE>
furnish such security, then, in addition to any other right or remedy of
Landlord resulting from Tenant's default, Landlord may, but shall not be
obligated to, discharge the lien either by paying the amount claimed to be due
or by procuring the discharge of such lien by giving security or in such other
manner as may be prescribed by law and Tenant shall, within ten (10) days after
written demand by Landlord, reimburse Landlord for all of its costs and expenses
arising in connection with such liens (including reasonable attorneys' fees).
Nothing contained in this Paragraph 30 shall imply any consent or agreement on
the part of Landlord to subject Landlord's estate to liability under any
mechanics' or other lien law.
31. Force Majeure.
In the event Landlord or Tenant shall be delayed, hindered or prevented
from the performance of any act required hereunder, by reason of governmental
restrictions, scarcity of labor or materials, strikes, fire, or any other
reasons beyond its control, the performance of such act shall be excused for the
period of delay, and the period for the performance of any such act shall be
extended for the period necessary to complete performance after the end of the
period of such delay. Notwithstanding the preceding sentence, the provisions of
this Paragraph 31 shall not be applicable to Tenant's obligations to pay rent or
any other sums, monies, costs, charges or expenses required to be paid by Tenant
subsequent to the Rent Commencement Date.
32. Limitation of Liability.
Notwithstanding anything contained in this Lease to the contrary,
Tenant agrees that it shall look solely to the equity and property of the
Landlord in the buildings comprising the Shopping Center for the collection of
any judgment (or other judicial process) requiring the payment of money by
Landlord for any default or breach by Landlord of any of its obligations under
this Lease, subject, however, to the prior rights of any ground or underlying
landlord or the holder of any mortgage covering the Shopping Center or of
Landlord's interest therein. No other assets of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claim. This provision shall not be deemed, construed or interpreted to be or
constitute an agreement, express or implied, between Landlord and Tenant that
Landlord's interest hereunder and in the Shopping Center shall be subject to
impressment of an equitable lien or otherwise.
33. Real Estate Brokers.
Tenant represents that Tenant has not dealt with any real estate
broker, salesperson or finder in connection with this Lease, other than Faison &
Associates, Inc. Tenant agrees to indemnify and hold harmless Landlord from and
against any and all liabilities and claims for commissions and fees arising out
of a breach of the foregoing representation.
34. Accord and Satisfaction
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of rent or other charges due under this Lease shall be
deemed to be other than on account of the amount due, and no endorsement or
statement on any check or any letter
-42-
<PAGE>
accompanying any check or payment of rent or other charges shall be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
payment of rent or other charge or pursue any other remedies available to
Landlord. No receipt of money by Landlord from Tenant after the termination of
this Lease or Tenant's right of possession of the Demised Premises shall
reinstate, continue or extend the Lease Term.
35. Nature and Extent of Agreement.
This Lease contains the complete agreement of the parties regarding the
terms and conditions of the lease of the Demised Premises, and there are no oral
or written conditions, terms, understandings or other agreements pertaining
thereto which have not been incorporated herein. This Lease may not be modified,
changed or amended, in whole or in part other than by an agreement in writing
duly signed by both parties hereto. This instrument creates only the
relationship of landlord and tenant between the parties hereto as to the Demised
Premises; and nothing in this Lease shall in any way be construed to impose upon
either party hereto any obligations or restrictions not herein expressly set
forth. The laws of the Commonwealth of Virginia shall govern the validity,
interpretation, performance and enforcement of this Lease.
36. Binding Effect.
This Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
37. ERISA Representation.
Tenant hereby represents to Landlord that (a) Tenant is not an employee
benefit plan as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended, (b) the assets of Tenant do not constitute
plan assets of one or more such plans within the meaning of 29 C.F.R. Section
2510.3-101 and (c) Tenant is not subject to state statutes regulating
investments of and fiduciary obligations with respect to governmental plans.
38. Waiver of Jury Trial.
Landlord, Tenant, all Guarantors and General Partners hereby waive
trial by jury in any action, proceeding, or counterclaim brought by either of
the parties hereto against the other on or in respect of any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant hereunder, Tenant's use or occupancy of the Demised
Premises, and/or any claim of injury or damage. Tenant consents to service of
process and any pleading relating to any such action at the Demised Premises;
provided, however, that nothing herein shall be construed as requiring such
service at the Demised Premises. Landlord, Tenant, all Guarantors and all
General partners of Tenant waive any objection to the venue of any action flied
in any court situated in the jurisdiction in which the Building is located and
waive any right under the doctrine of forum non convenience or otherwise, to
transfer any such action filed in any such court to any other court.
-43-
<PAGE>
39. Attorney's Fees.
If as a result of any breach or default in the performance of any of
the provisions of this Lease, Landlord uses the services of an attorney in order
to secure compliance with such provisions or recover damages therefor, or to
terminate this Lease or evict Tenant, Tenant shall reimburse Landlord upon
demand for any and all attorneys' fees and expenses so incurred by Landlord,
provided that if Tenant shall be the prevailing party in any legal action
brought by Landlord against Tenant, upon rendering of a final non-appealable
judgment, Tenant shall be entitled to recover for the fees of its attorneys in
such amount as the court may adjudge reasonable.
40. Captions.
Paragraph, article and section headings are used for convenience and
shall not be considered when construing this Lease.
41. Examination of Lease.
Submission of this Lease for examination or signature by Tenant shall
not constitute reservation of or option for lease, and the same shall not be
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
42. Survival.
Tenant's liabilities existing as of the expiration or earlier
termination of the Lease Term shall survive such expiration or earlier
termination.
43. Relocation and Redevelopment of Shopping Center.
(a) It is expressly understood and agreed between Landlord and Tenant
herein that in the event of any redevelopment of the Shopping Center which would
increase the size of the interior Common Areas of the existing Shopping Center,
would add additional improvements so that the Floor Area of the Shopping Center
is increased, would change or relocate the Food Park Area, or would add a Major
Store, Landlord shall have the right, at its sole option, to require Tenant to
relocate to another space in the Food Park Area (or a new Food Park Area) in the
Shopping Center. Landlord may only relocate Tenant one (1) time during the Lease
Term. Landlord shall serve upon Tenant a written notice of relocation specifying
the date on which such relocation is to take place, such date to be at least
sixty (60) days from the date on which the notice of relocation is mailed or
delivered to Tenant. Tenant shall then have the right to relocate to a mutually
agreeable space suitable for the operation of Tenant's business. If, in the
reasonable opinion of the Tenant, a suitable location does not become available
within such sixty (60) day period, Tenant shall have the right at its sole
option, to cancel this Lease and all of the terms, covenants, conditions and
agreements herein contained shall become null and void and of no further force
and effect as of the date on which Tenant would have been required to relocate,
as set forth in Landlord's written notice.
-44-
<PAGE>
(b) If in Tenant's reasonable opinion a suitable location is available
and Tenant relocates to such agreed upon location, all rent and other charges
under this Lease will abate during the period, if any, that Tenant has
permanently closed the Demised Premises for business until the earlier to occur
of: (i) the date on which Tenant actually opens its new premises for business;
or (ii) the date ninety (90) days following the date on which Landlord delivers
the new premises to Tenant. Anything herein to the contrary notwithstanding,
there shall be no abatement in rent or any other charges hereunder unless
relocation of Tenant is made at Landlord's request.
(c) In the event of relocation, Landlord will reimburse Tenant for the
unamortized cost of Tenant improvements less any allowance given by Landlord.
Tenant shall provide Landlord receipts and canceled checks for all sums expended
by Tenant for Tenant improvements so that Landlord may determine such costs.
Landlord shall not be obligated to pay Tenant for any costs not so evidenced.
The unamortized cost shall be computed by using straight line depreciation with
the life of improvements being the primary term of the Lease.
(d) Tenant shall allow Landlord or Landlord's agents access to the
Demised Premises for construction of such structural portions as may be required
to reinforce or install columns or other building components as may be necessary
for future mall development and/or enclosure. However, Landlord shall, following
such construction and at Landlord's expense, return the Demised Premises, as
nearly as possible, to the condition existing prior to said construction.
44. Food Park Tenant.
In the event Tenant engages in the preparation of food or baked goods,
Tenant agrees, at Tenant's own cost and expense: (i) to install dry chemical
extinguishing devices (such as Ansul) approved by the local fire insurance
rating organization and Landlord's insurance carriers, and to keep such devices
in good working order and repair and regularly serviced under a maintenance
agreement as may be required by Landlord or by such fire insurance rating
organization or carriers; (ii) to keep and maintain all exhaust ducts and
filters in a clean condition; (iii) to place and store Tenant's garbage and
refuse in containers which shall be kept, in a self-contained refrigerated area
within the Demised Premises set aside for the storage of garbage and refuse;
(iv) to install within or outside the Demised Premises, as may be required by
governing codes, a grease trap and all lines leading thereto of a pattern and
make approved in writing by Landlord, and to keep and maintain the same m a
clean and sanitary condition and in good working order and repair and at no less
than three (3) month intervals cause such trap to be cleaned and lines to be
routed; and (v) to install within Tenant's exhaust. system for the kitchen or
any other food preparation or cooking area, a deodorizing system acceptable to
Landlord of a type similar or equal to Roto Clone as manufactured by American
Air Filter (the purpose of which is to eliminate odors emanating from the
Demised Premises) and to keep and maintain the same in a clean and sanitary
condition and in good working order and repair. In the event Tenant engages in
the use, sale or storing of inflammable or combustible materials, Tenant agrees
to install and maintain similar chemical extinguishing devices referred to in
subparagraph (i) hereof. In the event gas is used in the Demised Premises,
Tenant agrees to install a proper gas cut-off valve. If Tenant shall fail to
install any such devices referred to in this Paragraph 44 and/or to subscribe to
the servicing thereof, Landlord shall have the right to enter upon the Demised
Premises to make
-45-
<PAGE>
such necessary installations and charge the cost of such installations and/or
the servicing thereof to Tenant, an additional rent hereunder. In addition,
Tenant agrees to abide by the provisions of the Food Park Addendum attached
hereto.
45. Surety Agreement.
Attached hereto is a Surety Agreement executed by Boston Restaurant
Associates, Inc.
-46-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal as of the day and year first above written.
LANDLORD:
ONE FEDERAL STREET JOINT VENTURE
By: The Prudential Insurance Company of
American, general partner
By:
-----------------------------
Vice President
ATTEST: TENANT:
PIZZERIA REGINA OF VIRGINIA, INC.
- --------------------------------- ---------------------------------
Name: Name:
-------------------------- ---------------------------
Title: Title:
-------------------------- ---------------------------
(CORPORATE SEAL)
-47-
<PAGE>
FOOD PARK ADDENDUM
Anything contained in this Lease, as the same may have been heretofore
modified or amended (the "Printed Lease"), notwithstanding, to and of which this
Addendum is attached and made a part, the terms, conditions and provisions of
this Addendum shall be paramount and controlling. The Printed Lease, together
with this Addendum, may be sometimes hereinafter collectively referred to as the
"Lease". All terms used herein shall have the meaning ascribed to them in the
Printed Lease.
1. THE FOOD PARK.
(a) The provisions of this Addendum are generally applicable to each
and every tenant leasing space in the Shopping Center in the area designated by
Landlord for small restaurant operations, carry-out only, which area is
inclusive of individual premises demised to other tenants, the Food Park Seating
Area (as hereinafter defined) and other Common Areas lying therein (collectively
the "Food Park Area"). The Gross Leasable Area of the Food Park Area" shall be
deemed to mean the actual number of leasable square feet of the Floor Area in
the Food Park Area (as initially constructed or as the same may at any time
thereafter be enlarged or reduced) which is exclusively appropriated for Food
Park Area tenants, whether leased or vacant, and specifically excluding building
roofs, the Food Park Seating Area and other Common Areas. All measurements are
to be made as provided in the Printed Lease.
(b) Tenant expressly acknowledges and agrees that all rents and charges
required to be paid by Tenant pursuant to this Addendum are in addition to, and
not in lieu or reduction of, Tenant's obligations set forth in the Printed
Lease, including without limitation, Guaranteed Minimum Rent, Percentage Rent,
additional rent and all other charges.
2. FOOD PARK SEATING AREA.
So long as Tenant is not in default under this Lease, Tenant and
Tenant's invitees, customers and patrons shall have a revocable license to use,
in common with others, the Food Park Seating Area. The "Food Park Seating Area"
means the common seating area within the Food Park Area which from time to time
may be made available by Landlord for use, in common with others, by Landlord,
Food Park Area tenants and their invitees, customers and patrons. Landlord in
its sole and absolute discretion shall furnish and install equipment, floor
covering, lighting fixtures, decorative and permanent fixtures, ceiling, tables,
chairs, accessories and other property in the Food Park Seating Area. Landlord
shall be the sole owner of all of the foregoing described items, and Tenant
shall have no right, title or interest in and to any such item, excepting only
in respect to the limited use right granted pursuant to the revocable license
hereinabove provided.
-48-
<PAGE>
3. EXCLUSIVE CONTROL OF LANDLORD.
The Common Areas of the Food Park Area shall be subject to the
exclusive management and control of Landlord {but Landlord shall have the right
to cause any or all management or other services, including without limitation,
those set forth in Addendum Paragraph 7(a) to be provided by an independent
contractor or contractors}. As between Landlord and Tenant, Landlord shall at
all times have the exclusive right and authority, in its sole and absolute
discretion, to determine the nature and extent of the Food Park Area, and to
make such changes, rearrangements, additions, and/or reductions therein and
thereto at any time and from time to time which it may deem desirable or which
may result from any federal, state or local environmental or other law, rule,
regulation, guideline, judgment or order. Without limiting the generality of the
foregoing, in respect to the Food Park Area, Landlord shall additionally have
each and every right reserved unto it in the Printed Lease respecting the
Shopping Center and the Common Areas.
4. USE.
Tenant shall use the Demised Premises solely for the preparation, sale
at retail and delivery of food and beverages to the public for "carry-out" or
for consumption in the Food Park Area, all in strict accordance with Paragraphs
l(i) and 6(a) of the Printed Lease. Lessee may be permitted to open for business
earlier than otherwise set forth in the Printed Lease and to serve "breakfast",
upon Landlord's prior written consent which consent may be granted or withheld
by Landlord in its sole discretion and in accordance with the requirements
thereof. Tenant agrees to sell only those food and beverage items specifically
enumerated in said Paragraph 1 (i) (such food and beverage items hereinafter
sometimes referred to as the "Menu") and to maintain the highest standards in
quality and preparation of such items. Tenant agrees to offer for sale each of
the enumerated items on the Menu and any failure to sell any such item or any
substitution for or addition to such item without Landlord's prior written
approval shall be deemed a default under the Printed Lease, and in addition to
(and not in replacement of) any other rights or remedies pursuant to this Lease,
Landlord shall have the right to charge Tenant, as additional rent, the sum of
One Hundred and no/100 Dollars ($100.00) per day for each and every day or part
thereof the default persists. The rights and remedies reserved in this Paragraph
4 are distinct, separate and cumulative and the exercise of same shall not be
deemed to preclude, waive or prejudice Landlord's right to exercise any or all
others provided in this Lease.
5. DISPOSABLE PAPER PRODUCTS.
In connection with the sale of food and beverages from the Demised
Premises, Tenant agrees to use at its sole cost and expense, only disposable
paper goods and utensils, including, but not limited to, cups, wrap materials,
plates, trays, boats, straws, bags, napkins, spoons, forks, knives, stir sticks
and the like. Landlord shall have the continuing right (but not the obligation)
to develop a uniform design for all such disposable paper products used in the
operation of the Food Park Area, and Tenant agrees to use only disposable paper
products utilizing such design in the manner required by Landlord, and otherwise
of the type, size, material and color approved by Landlord; provided however
that in the event Tenant is a franchisee and shall be required by the
-49-
<PAGE>
terms of its franchise agreement to utilize a particular design of or type of
disposable paper products, or in the event Tenant is a corporate chain of stores
(a chain being 20 or more stores) Tenant shall be permitted to utilize such
design or type (except in respect to the food trays upon which food and
beverages are served to the public, which must adhere and conform to Landlord's
uniform design standards) with Landlord's prior written approval so long as such
products otherwise conform to the type, size, material and color approved by
Landlord. Although Tenant shall be required to use only paper products so
approved by Landlord, Tenant shall not be required to purchase such products
from Landlord. Tenant shall not be permitted to place signs, trash bins or other
receptacles for refuse on or about Tenant's food counter. In the event Tenant
shall violate the provisions of this Paragraph 5, such violation shall
constitute a default under the Printed Lease, and, in addition to any other
rights or remedies pursuant to this Lease, Landlord shall have the right to
charge Tenant, as additional rent, the sum of One Hundred and no/100 Dollars
($100.00) per day for each and every day or part thereof such violation exists.
The rights and remedies reserved in this Paragraph 5 are distinct, separate and
cumulative and the exercise of same shall not be deemed to preclude, waive or
prejudice Landlord's right to exercise any or all others provided in this Lease.
6. EMPLOYEE DRESS AND CONDUCT.
Tenant's employees shall at all times be required to present a clean
and well-groomed appearance. Tenant's employees shall be required at all times
while on duty in the Demised Premises to wear uniforms, the color and style of
which are to be subject to Landlord's approval. Landlord hereby approves
Tenant's standard uniforms and trade dress. Tenant may make such arrangement
with its own employees as it deems appropriate regarding the purchase and
maintenance of standard uniforms. In the event Tenant or any of its employees
shall not be properly attired as required hereunder, in addition to any other
rights and remedies in favor of Landlord provided in this Lease, Landlord may
direct Tenant to require any such employee not so attired to immediately conform
to the requirements of this Paragraph or leave the Demised Premises.
7. FOOD PARK AREA MAINTENANCE COSTS.
(a) Landlord shall clean, police, repair and maintain the Food Park
Seating Area during business hours and otherwise in a manner and at such
frequency deemed by Landlord to be reasonably appropriate and in the best
interest of the Shopping Center. All Food Park Operating Costs (as hereinafter
defined) incurred by or on behalf of Landlord for services in excess of the
level of services provided and paid for as part of the Common Area Maintenance
charge set forth in Paragraph 9(b) of the Printed Lease shall be charged to Food
Park Area tenants in the manner hereinafter set forth. Tenant shall pay to
Landlord the Food Park Area Charge (as hereinafter defined) in consideration of
the enhanced or additional Common Area Maintenance services attributable or
otherwise related to the Food Park Area. Specifically, Tenant agrees to pay
Landlord, as additional rent in the manner provided below in Addendum Paragraph
7(b), the Food Park Area Charge (as hereinafter defined) which is Tenant's share
of the Food Park Operating Costs (as hereinafter defined). "Food Park Operating
Costs" shall mean all direct and indirect total
-50-
<PAGE>
costs and expenses paid or incurred in operating, maintaining and repairing the
Food Park Area and the Common Areas located therein, including without
limitation, the costs of all materials, supplies and services purchased or hired
therefor, and further, specifically including without limitation (i)
maintenance, repair and replacement of all machinery, equipment, facilities and
personal property; (ii) maintenance, repair and replacement of the heating,
ventilating and air conditioning system, emergency water and sprinkler main
system, electrical equipment and other items; (iii) maintenance, repair and
replacement of utility systems, including water, sanitary sewer and storm water
lines and other utility lines, pipes and conduits; (iv) the cost and expense of
lighting, extermination, sanitary control and removal of trash, garbage and
other refuse (including the removal of litter within the Common Areas of the
Shopping Center within fifteen (15) feet beyond the Food Park Area {the "Food
Park Extended Area"}; (v) premiums for insurance to the extent provided by
Landlord solely in respect to the Food Park Area; (vi) all personal property
taxes and other charges incurred in connection with Food Park Area machinery,
equipment and facilities; (vii) maintenance, repair and replacement of the
grease traps and grease trap lines; (viii) salaries and wages of all personnel,
including without limitation, supervisory personnel engaged in the cleaning,
policing, repairing, maintaining, and securing of the Food Park Area (and the
Food Park Extended Area); (ix) all costs and expenses enumerated in Paragraph
9(b) of the Printed Lease; and (x) administrative costs equal to fifteen percent
(15 %) of the total Food Park Operating Costs (excepting such administrative
costs). Tenant's Food Park Area Charge shall not include the items excluded
therefrom as set out in Paragraph 9(b). Tenant's Food Park Area Charge is in
addition to, and not in lieu or reduction of, Common Area maintenance charge and
all other rents and charges provided in this Lease.
(b) Tenant's Food Park Area Charge shall be in an amount equal to the
product obtained by multiplying the total Food Park Operating Costs paid or
incurred during each calendar year during the Lease Term by a fraction, the
numerator of which shall be the Floor Area of the Demised Premises and the
denominator of which shall be the Gross Leasable Area of the Food Park Area.
Tenant's Food Park Area Charge shall be estimated, due and payable in the manner
provided in the Printed Lease for Lessee's Common Area maintenance charges. Any
partial calendar year shall be proportionately adjusted. Landlord estimates that
Tenant's pro rata share of Food Park Area Charge for 1997 shall be $30.25 per
square foot of Floor Area of the Demised Premises per annum.
8. UTILITIES AND SERVICES.
-51-
<PAGE>
Landlord has elected initially to furnish, at Tenant's sole cost and
expense, the electrical energy and chilled air to be used or consumed in the
Demised Premises, and Tenant agrees to purchase and pay Landlord, as additional
rent, for the equipment and service thereof, in accordance with Exhibit "F-1" to
the Printed Lease, at the rates which the applicable public or private utility
company would have charged Tenant for furnishing such utilities, plus applicable
taxes thereon. Landlord reserves the right to discontinue the furnishings of
both or either electrical energy and/or chilled air, and if Landlord shall so
elect to discontinue same, the terms and provisions of said Exhibit "F-I"
pertaining to the payment for such service shall not be applicable from and
after the date of such discontinuance, and in such case. Tenant shall contract
directly with the public or private utility company for the purchase of same as
required under said Exhibit "F-1 ". Tenant acknowledges and agrees that the
provision by Landlord of any utilities as herein provided is not for the purpose
of reselling or re-metering for profit. Except as hereinabove provided, the
provisions of Paragraph 10 of the printed Lease are incorporated herein by this
reference.
-52-
<PAGE>
EXHIBIT A
-53-
<PAGE>
EXHIBIT B
-54-
<PAGE>
EXHIBIT C - SHOPPING CENTER DESCRIPTION
All that certain piece or parcel of land, together with improvements thereon and
appurtenances thereunto belonging, lying and being in the Tuckshoe Magisterial
District, Henrico County, Virginia, containing 25.616 acres, and being
designated as Parcel C, which Parcel C includes Parcels B and E, on a plat of
survey by Austin Brockenbrough and Associates, Consulting Engineers, dated
January 18, 1974, revised February 19, 1974 and June 8, 1974, captioned
"Property Map, Regency Square Shopping Center, Henrico County, Virgin", and
described with reference thereto as follows:
BEGINNING at a point on the south line of Quioccasin Road as widened, said point
being 489.88 feet east of the intersection of Quioccasin Road and Starling Drive
extended; thence from said point of beginning eastwardly along the new line of
Quioccasin Road and along a curve to the right, said curve having a central
angle of 27-53-29, a radius of 701.12 feet, a tangent of 174.10 feet, for a
length of 341.31 feet to a point; thence S 30-00-58 E 343.91 feet to a point;
thence along a curve to the left, said curve having a central angle of 27-43-19,
a radius of 563.06 feet, a tangent of 138.94 feet for a length of 272.43 feet to
a point, said point being a point on the original line of Quioccasin Road;
thence eastwardly along the original line of Quioccasin Road and along a curve
to the left, said curve having a central angle of 4-I 1-07, a radius of 517.46
feet, a tangent of 18.91 feet, for a length of 37.80 feet to a point; thence S
71-27-17 W 346.36 feet to a point; thence S 30-28-35 W 387.50 feet to a point;
thence S 59-36-25 E 206.00 feet to a point; thence N 30-23-35 E 11.50 feet to a
point; thence S 59-36-25 E 373.16 feet to a point on the north line Holly Hill
Road as widened; thence westward along the new line of Holly Hill Road, N
84-00-13 W 409.54 feet to the west line of Townley Road as widened; thence
southwardly along Townley Road S 24-18-51 W 39.24 feet to a point on the
original intersection of the north line of Holly Hill Road and Townley Road;
thence N 84-16-49 W 883.42 feet to a point; thence N 84-21-19 W 196.07 feet to a
point; thence N 22-34-43 E 89.97 feet to a point; thence N 16-36-24 W 176.25
feet to a point; thence N 84-46-32 W 120.92 feet to a point on the east line of
Starling Drive; thence northwardly along Starling Drive, N 29-20-56 E 252.58
feet to a point; thence along a curve to the left, said curve having a central
angle of 3-03-19, a radius of 1,462.40 feet, a tangent of 39.00 feet for a
length of 77.98 feet to a point; thence S 59-36-25 E 397.76 feet to a point;
thence N 30-23-35 E 535.97 feet to a point; thence N 59-36-25 W 63 feet to a
point; thence N 30-23-35 E 606.98 feet to the south line of Quioccasin Road as
widened, and the point of beginning.
-55-
<PAGE>
EXHIBIT D - DESCRIPTION OF INTEGRATED SHOPPING CENTER
(Parcels A, B, C, D and E as shown on Survey of Austin Brockenbrough and
Associates dated January 18, 1974, revised February 19, 1974 and further revised
June 3, 1974)
Beginning at a point on the north line of Holly Hill Road as widened, said point
being 39.23 feet west of the intersection of Holly Hill Road and Parham Road
extended; thence from said point of beginning and along the north line of Holly
Hill Road as widened, N 84-00-13 W 636.28 feet to the west line of Townley Road
as widened; thence southwardly along Townley Road S. 24-18-51 W 39.24 feet to a
point on the original intersection of the north line of Holly Hill Road and
Townley Road; thence N 84-16-49 W 883.42 feet to a point; thence N 84-21-19 W
196.07 feet to a point; thence N 22-34-43 E 89.97 feet to a point; thence N
16-36-24 W 176.25 feet to a point; thence N 84-46-32 W 120.92 feet to a point on
the east line of Starling Drive; thence northwardly along Starling Drive, N
29-20-56 E 252.58 feet to a point; thence along a curve to the left, said curve
having a central angle of 9-48-00, a radius of 1,462.40 feet, a tangent of
125.37 feet for a length of 250.13 feet to a point; thence N 19-32-56 E 416.45
feet to a point; thence along a curve to the right, said curve having a central
angle of 8-42-30, a radius of 2,834.79 feet, a tangent of 215.84 feet, for a
length of 430.86 feet to a point; thence N 28-15-26 E 122.42 feet to a point;
thence along a curve to the right, said curve having a central angle of
93-41-40, a radius of 25.00 feet, a tangent of 26.67 feet, for a length of 40.88
feet to a point on the south line of Quioccasin Road as widened; thence along
said south line of Quioccasin Road S 58-02-54 E 461.49 feet to a point; thence
along a curve to the right, said curve having a central angle of 28-01-56, a
radius of 701.12 feet, a tangent of 175.02 feet for a length of 343.03 feet to a
point; thence S 30-00-58 E 343.91 feet to a point; thence along a curve to the
left, said curve having a central angle of 27-43-19, a radius of 563.06 feet, a
tangent of 138.94 feet, for a length of 272.43 feet to a point; thence along a
curve to the left, said curve having a central angle of 8-53-36, a radius of
517.46 feet, a tangent of 40.24 feet for a length of 80.32 feet to a point;
thence along a curve to the left, said curve having a central angle of 7-32-56,
a radius of 1,145.92 feet, a tangent of 75.60 feet, for a length of 150.98 feet
to a point; thence S 8-33-46 W 8.00 feet to a point; thence along a curve to the
right, said curve having a central angle of 74-32-06, a radius of 135.00 feet, a
tangent of 102.72 feet for a length of 175.62 feet to a point on the west line
of Parham Road; thence southwardly along Parham Road, S 6-54-19 E 150.05 feet to
a point; thence S 3-50-58 E 4.74 feet to a point; thence along a curve to the
right, said curve having a central angle of 23-36-57.1, a radius of 904.93 feet,
a tangent of 189.18 feet for a length of 372.99 feet to a point; thence along a
curve to the right, said curve having a central angle of 76-13-47.9, a radius of
50.00 feet, a tangent of 39.23 feet, for a length of 66.52 feet to a point on
the north line of Holly Hill Road as widened, and the point of beginning and
containing 47.616 acres.
-56-
<PAGE>
EXHIBIT E - Intentionally deleted
-57-
<PAGE>
EXHIBIT F - ENERGY SERVICE AND ENERGY CHARGES
REGENCY SQUARE MALL
1.0 Landlord will deliver to the Demised Premises, electric energy for
lighting, miscellaneous power, heating and air conditioning of the
same, from the central electric energy distribution system of the
Shopping Center in accordance with the following:
1.1 Electric energy shall be available at any time between 8 a.m. and 10
p.m. on the days when the center is designated open by Landlord in the
capacities adequate to satisfy the full electric load of the Demised
Premises. Characteristics of the electric energy service are 3 phase, 4
wire, 60 cycle, 277/480 volt.
1.2 In addition during all other hours of the year, electric energy will be
available for off hour lighting use by the Tenant. Said off hour load
may not exceed 5 % of the total connected load of the lighting devices.
1.3 In addition, during all other hours of the year, electric energy will
be available for maintaining an in-space temperature of 35 degrees F,
whenever outdoor temperature is 35 degrees F or less.
2.0 Tenant shall submit its mechanical and electric plans for the
Landlord's approval. Nothing contained in this Lease shall be construed
to obligate the Landlord to approve Tenant plans or systems with a
total connected load in excess of six (6) watts per square foot of
Floor Area, exclusive of the connected load of heating and air
conditioning equipment.
2.1 Without the written consent of the Landlord in advance, Tenant shall
not increase its heating or cooling load or electric usage capacity
beyond that initially installed in the Demised Premises in accordance
with the approved plans thereof, nor shall it use heating and air
conditioning for any purpose other than comfort conditioning of its
space, nor shall it use electric energy for any other purpose than
lighting and power demands indicated on its approved drawings.
2.2 Without the prior written consent of the Landlord, or unless expressly
otherwise required by the Lease, Tenant shall not use electric energy
during times other than the hours 8 a.m. through I0 p.m. on the days
when the Landlord has designated the center as open, except that off
hour lighting and freeze protection heating described hereinbefore, and
electrical energy used for Tenant's refrigeration equipment and cash
registers, shall not be considered a violation of this clause.
2.3 Tenant shall install an electric heating and air conditioning system in
conformance with the description contained in 4.0 hereinbelow.
3.0 Landlord's Inspections:
-58-
<PAGE>
3.1 Landlord shall have the right to inspect the Demised Premises to test
Tenant's systems and to install and operate suitable devices for the
purposes of determining Tenant's connected load, demand and consumption
of electric energy and space temperature. Frequency of such inspections
is at the Landlord's option and it should conduct same in a manner to
keep disturbance of Tenant's operation at a minimum.
3.2 If such an inspection indicates that Tenant's connected load, energy
usage or operation deviates from or exceeds the conditions set forth in
this Lease, Landlord may require (in addition to any other right it may
have) Tenant to pay the cost of said inspection and that the Tenant
provide, at its own cost, all remedial action required to conform its
installation or operation to this Lease.
4.0 Tenant's Systems:
4.1 The electrical work shall be as stated in the Criteria.
4.2 Tenant's distribution shall be arranged to provide independent
circuiting for off hour operating devices, completely separated from
all other users. These off hour devices are:
4.2.1 Night lighting (limited to 5 % of the total connected load of
all lighting devices);
4.2.2 The fan motor of the air handling equipment, used for heating;
4.2.3 The electric heaters of said air handling equipment and the
controllers of said air handling equipment;
4.3 There shall be a separate disconnect switch for the off hour operating
devices and other separate switch or switches for all other circuits.
These latter switches shall be of the type suitable for remote
activation/deactivation, and shall be of the type designated by the
Landlord and the manufacturer and model shall be subject to Landlord's
approval for this purpose.
4.4 Landlord has the option to install a central remote control system,
that will deactivate all electrical circuits of the Tenant, except the
off hour operating devices described hereinbefore, as an energy
conservation measure during all hours when the center is not designated
open by the Landlord.
4.5 Tenant's air conditioning and heating system shall be sized to offset
the in-space and the transmission/radiation heat gains and losses of
the Demised Premises at the design conditions listed and the space
temperatures indicated as follows and these design conditions shall be
used in the computation establishing the electrical charge rates.
4.5.1 Heating:
Indoor dry bulb temperature 70 degrees F
-59-
<PAGE>
Outdoor dry bulb temperature 12 degrees F
Wind velocity (up to 75% of extreme cold hours) 8 mph
4.5.2 Cooling:
Indoor dry bulb temperature 76 degrees F
Indoor wet bulb temperature 63 degrees F
Indoor relative humidity 50 degrees F
Outdoor dry bulb temperature 96 degrees F
Outdoor wet bulb temperature 79 degrees F
4.5.3 Space load criteria
Outdoor air intake rate shall not exceed 0.20 of a CFM per
square foot in sales area and 0.10 in stock areas except
during times when neither refrigeration nor heating is
performed by means of electric energy and the space is being
conditioned by the use of outdoor air. The total amount of air
exhausted by mechanical exhaust devices installed by the
Tenant shall not exceed the maximum outdoor rate described
hereinbefore. Heat gain from the electrical devices, lighting,
motors and the like in the Demised Premises shall be their
actual rating as shown on the Tenant's electrical plans. For
the purposes of sizing the electric heating devices, a credit
shall be taken for such heat gain in accordance with the
recommendations of ASHRAE Guide. Occupancy of the space shall
be considered one person for every 100 square feet of store
area.
4.6 Tenant's mechanical equipment shall include the following provisions
and conform to the following limitations:
4.6.1 The overall efficiency of the air conditioning unit shall be
such that the electric power required for a ton of
refrigeration does not exceed 1.4 KW at the design conditions
stated hereinbefore. Said 1.4 KW shall include air cooled
equipment which shall include air supply fan, refrigeration
compressor, cooling tower (or evaporative condenser) fan and
water circulating pump in case of water cooled equipment.
4.6.2 A 100% outdoor air economizer cycle shall be provided that
will allow cooling of the space without the use of electric
refrigeration, whenever the outdoor temperature is 55 degrees
F or less. Automatic control devices shall be provided to
prevent the refrigeration equipment from operating, whenever
the outdoor temperature is 55 degrees F or less and shall also
prevent the electric heaters from operating whenever the
outdoor air quantity drawn by the system exceeds the maximum
outdoor air rate described hereinbefore.
-60-
<PAGE>
4.6.3 A time clock shall be provided, of the seven day type, to
activate and deactivate the heating and air conditioning
system. The on and off settings of this time clock shall be
the same as the hours when the center is designated open and
closed respectively, except that a 1/2 hour morning warm-up
period is permitted during the heating season before the
actual time of opening the center.
4.6.4 An automatic device will keep all outdoor dampers closed
during such warm-up cycle or whenever the temperature in the
store is less than 65 degrees F.
4.6.5 The electric heating coils shall have multiple circuits and
shall be operated by multi-step controllers equipped with time
delays between the steps. These time delays will prevent the
entire coil from becoming energized simultaneously by a call
for heat from the temperature control system and will be
adequate in span to allow the space temperature sensing
devices to respond to the added heating energy. When the total
capacity of the heating coils of an air handling unit is 15 KW
or less, a minimum of three equal circuits shall be provided;
when this capacity is more than 15 KW but less than 60 KW, a
minimum of 5 equal circuits shall be provided; for capacities
exceeding 60 KW the individual circuit size shall not exceed
15 KW.
4.7 Tenant's heating and air conditioning system shall be provided with
automatic controls maintaining the space temperature automatically by
cycling the air conditioning compressors and the electric heaters.
Whenever mechanical refrigeration is used, the indoor temperature
maintained shall not be less than 75 degrees F. Whenever electric
heating is used the indoor temperature maintained shall not be more
than 70 degrees F.
4.7.1 Temperature maintained lower than these values in the summer
or higher in the winter shall be considered a violation of the
Lease and Landlord shall have the right (in addition to
whatever other rights he may have) to estimate the energy
consumed by such excesses, and to adjust the energy service
charges to include additional monies for such excesses,
including adjustment for the past 12 months.
4.7.2 Tenant's air conditioning equipment shall include a part load
operation capacity control for its refrigeration compressors.
This may be in the form of multiple compressors or unloading
devices, except for units less than 6 tons of total capacity
as to which this requirement is waived. Air conditioning units
with a total capacity over 6 tons but not exceeding 20 tons
shall have at least 2 capacity reduction steps, that is 100%,
50%, off. Units over 20 ton capacity shall have at least 3
steps of capacity control, that is 100%, 66%, 33% and off.
4.7.3 More refined capacity controls or smaller incremental steps as
described hereinbefore are acceptable for both the
refrigeration compressors and the electric heating coils.
-61-
<PAGE>
4.8 All outdoor air dampers shall be first grade quality, provided with air
tight seals on all damper edges and on all four sides. They must be
leak free in their closed position.
4.9 All ductwork carrying heated or cooled air, except exhaust ductwork,
shall be proved with not less than 1 ", thermal insulation when running
in non-air conditioned spaces or in hung ceilings that are not acting
as active air return plenums. Any such ductwork running outdoors shall
be provided with not less than 2" thick thermal insulation.
4.10 Tenant's air conditioning system shall be designed to prevent escape of
air into public areas or other stores, and of odors or contaminants
into the public areas or other stores and shall transmit no noise or
vibration into public areas or other stores.
4.11 Tenant agrees to operate its systems so that the amount of electrical
energy consumed for its use is to be economically moderated by avoiding
any unnecessary or wasteful consumption of electricity.
5.0 Electrical Consumption Charge:
5.1 Tenant agrees to pay Landlord for the energy service supplied, under
the conditions described herein, as additional rent, the Electrical
Consumption Charge, payable in 12 equal monthly installments on the
first day of each month during the Lease Term. The payment provided for
herein shall be adjusted for each calendar year, at the end of the
preceding calendar year by adding thereto a sum computed at the rate of
1% (or fraction thereof) for each increase of 1%, (or corresponding
fraction thereof) of the overall average cost of electric energy paid
by the Landlord. At the same time, the same increase shall be collected
by the Landlord for the preceding calendar year.
5.2 Landlord's average unit cost of electricity shall be arrived at by
calculating the sum of its electric bills for the preceding 12 months,
divided by the sum of electric energy usage, stated on said bills, in
kwh.
5.3 The Electrical Consumption Charge will be based on the Tenant's
connected electric load as evaluated by the Landlord's engineer. Tenant
shall furnish his final mechanical and electrical drawings to the
Landlord for that purpose and shall cooperate with the Landlord's
engineer, furnishing all information required for an exact
determination of the connected load of each electric energy using
device as well as for the evaluation of full conformance with the
provisions of this lease.
5.4 For the purposes of connected load computation each electric energy
consuming device will be counted as follows:
5.4.1 Fluorescent and mercury lighting at the actual rated wattage
of the lamps and ballast loss plus 10% for power factor
correction rounded off to the nearest 25 volt-amperes.
Incandescent lighting at the full rated wattage of the lamps,
in volt-amperes.
-62-
<PAGE>
5.4.2 All motors at their full nameplate rating of volt-amperes.
5.4.3 All resistance type devices such as heaters at their full
rated capacity.
5.4.4 All convenience outlets, with no load indicated (such as wall
or floor or show-case installed) at 180 VA per receptacle for
120V, 15A or 20A receptacles; 2000 VA for 208V, 15A or 20A
receptacles.
5.5 The total connected load will be the sum total of the individual
electric energy consuming devices connected load as described above,
without any deduction for alleged or actual diversities or partial
operations; with the following two exceptions:
5.5.1 Air conditioning equipment and heating equipment is excluded
in full as their usage will be reflected in the Electrical
Consumption Charge values as a function of the connected load;
5.5.2 Whenever two electrical energy consuming devices are prevented
from operating simultaneously by an automatic electric
interlock without any manual override device, only the larger
of the two will be included for the connected load summation.
5.6 The Floor Area of the Demised Premises shall be as stated in
Paragraph 1(a) of the Lease.
-63-
<PAGE>
EXHIBIT F-1
REGENCY SQUARE, RICHMOND, VIRGINIA
ENVIRONMENTAL SERVICES, FOOD COURT
1.0 General:
1.1 Landlord will provide for the Demised Premises: all electric energy for
lighting, miscellaneous power and supplementary heating use; and conditioned air
for heating and air conditioning use; all in accordance with the following:
1.1.1 Electric energy will be available on the days and between the hours of
each day, when the Shopping Center is designated open by Landlord, in capacities
adequate to satisfy the actual electric load in the Demised Premises;
1.1.2 During all other hours of the year, electric energy will be available for
off-hour lighting use, heating, computer use and food refrigeration use by
Tenant; off-hour lighting may not exceed five percent (5%) of the total
connected load of the lighting devices in the Demised Premises, unless expressly
stated in this lease otherwise;
1.1.3 Electricity may not be used ,for air-conditioning purposes; only for
control.
1.2 Electric energy service related installation requirements:
1.2.1 Electric energy is delivered by Landlord to electric distribution rooms,
located as designated by Landlord; Landlord's distribution system terminates in
bus ways, furnished by Landlord, in these distribution room. All electrical work
and installations required for the beneficial use of the Demised Premises,
beyond these bus ways shall be provided by Tenant;
1.2.2 This work by Tenant shall include: (i) fused disconnect switch, compatible
to and installed in Landlord's bus way; and (ii) wire from that switch to the
Demised Premises, to Tenant's in-space electric distribution system;
1.2.3 Characteristics of Tenant's electrical distribution shall be based on
277/480 volt, three phase, four wire service; it shall include dry-type
transformer for any other required voltage.
1.3 Conditioned air will be supplied under the conditions, time schedules and
Tenant installation requirements described in Exhibit "F-2" hereof.
1.4 Neither the electric energy nor the conditioned air service supplied by
Landlord to Tenant will be metered nor check-metered.
2.0 Inspections and Evaluations by Landlord:
-64-
<PAGE>
2.1 Landlord has the right to inspect the Demised Premises to test Tenant's
systems, electricity and conditioned air usage, or space temperature. Frequency
of such inspections shall be at Landlord's discretion; Landlord shall utilize
reasonable efforts to conduct same in a manner to keep disturbance of Tenant's
operation at a practicable minimum.
2.2 In case such an inspection finds that Tenant's connected load, energy use or
operation deviates from, or exceeds the conditions set forth in this lease,
Landlord may (in addition to any other rights and remedies elsewhere provided or
permitted) require that Tenant pay for the cost of the said inspection and that
Tenant provide, at Tenant's sole cost and expense, all remedial actions required
to conform Tenant's installation or operation to the provisions of this Lease.
2.3 For the purpose of evaluating the "Environmental Charge Rate" and for the
purpose of any other provision of this Lease, the "Connected Electric Load" of
the Demised Premises is defined as the sum total of the individual electric
energy consuming devices' connected load in the Demised Premises, without any
deduction for alleged or actual diversities or for partial operations; except,
when two (2) electric energy consuming devices are prevented from operating
simultaneously by means of an automatic interlock, without manual override
device, only the larger of the two (2) has to be included in the connected load
summation.
2.3.1 For the purposes of connected load summation, the connected load of each
electric energy consuming device is defined as follows:
2.3.2 Fluorescent and mercury lighting at the actual rated wattage of the lamps
plus ballast loss, plus ten percent (10 %) power factor correction;
2.3.3 Incandescent lighting at the full rated wattage of the lamps, in
volt-amperes;
2.3.4 All motors at full name-plate/rating volt-amperes, including all losses;
2.3.5 All resistance type devices and all appliances, such as ovens or
refrigerators at their full rated capacity, with all circuits operating, in
volt-amperes;
2.3.6 All convenience outlets with no load indicated on the drawings count at
180 VA. per receptacle for 120 V., 15A. or 20A. receptacles; and at 2000 VA.
each for 208 V., 15A. or 20A. receptacles.
3.0 Plans: Tenant shall submit its electrical and mechanical plans to Landlord,
for Landlord's prior written approval. Nothing contained in this lease shall be
construed to obligate Landlord to approve Tenant' s plans or systems with a
total connected load in excess of seven (7) watts per square foot of Floor Area,
exclusive of electric heating devices.
3.1 Without advance written consent of Landlord, Tenant shall neither increase
nor decrease its electric load, or its air conditioning load from the initial
installation in the Demised Premises, in accordance with the approved plans
thereof.
-65-
<PAGE>
3.2 Without advance written consent of Landlord or unless expressly otherwise
required by this Lease, Tenant shall not use electric energy nor conditioned air
during times other than on the days and between hours when Landlord has
designated the Shopping Center as "open"; except, that off-hour lighting,
computer use and food refrigeration in accordance with the foregoing and other
requirements and heating during "off-hours" shall not be considered a violation
of this clause.
4.0 Energy Management Requirements:
4.1 Tenant's electrical distribution shall be arranged for independent
circuiting for all off-hour operating devices, separated from all other users.
These off-hour devices are:
4.1.1 Night lighting, including any signs that remain operative during "closed"
hours. Connected load of such lighting is limited to five percent (5%) of the
total connected load of all lighting devices in the Demised Premises.
4.1.2 Refrigerators and coolers with their controllers;
4. 1.3 Computers required to be "on" twenty-four (24) hours per day;
4.1.4 Timer and Temperature Controls.
4.2 A separate disconnect contractor shall be provided for the off-hour
operating devices. Another, separate disconnect contractor(s) shall be provided
for all other uses.
This latter (not "off-hour use" devices) contractor(s) shall be of the type
suitable for remote activation/de-activation by low voltage signal and shall be
of the type designated by Landlord. Manufacturer and model of these contractors
shall be subject to Landlord 's prior written approval.
4.3 Landlord has the option to install a central, remote control system, that
may deactivate (part or) all electrical circuits of Tenant as an energy
conservation measure, during all hours when the Shopping Center is not
designated "open" by Landlord.
4.4 In case Landlord does not install the central control system described in
Section 4.3 hereof, Tenant shall install time-clocks. Whenever the Demised
Premises are not "open for business", these time-clocks will keep:
4.4.1 All electric energy consuming devices inoperative; "off-hour" devices
described in Sections 4.1.1 through 4.1.4 hereof are exempt from this
requirement;
4.4.2 Re-set the thermostat(s) maintaining space temperature during the heating
season to 70 degrees F. whenever the Shopping Center is designated "open" by
Landlord, and to 50 degrees F. during all other times.
-66-
<PAGE>
5.0 Environmental Service Charges {referred to as "Electrical Consumption
Charge" in Paragraph l(n) of this Lease}
5.1 For the Environmental Energy. Services supplied under conditions described
herein, Tenant agrees to pay Landlord, as additional rent, the annual
"Environmental Service Charge" (Electrical Consumption Charge), payable in
twelve (12).equal monthly installments, on the first day of each month during
the Lease Term.
5.2 The payment provided herein shall be adjusted and billed each month, by
adding thereto a sum reflecting in proportion any increase in any of the
following components of whatsoever kind or nature.
5.2.1 Electric Utility (Virginia Electric Power Co.) rates and charges,
including "customer service charge" or "fuel adjustment" or "fuel purchase cost"
type charges of the Utility;
5.2.2 Surcharges, Taxes and Levies related to the utility charge or to the
electric or to the conditioned air service;
5.2.3 Tenant's connected loads, operating hours of Tenant and of the entire
Shopping Center;
5.2.4 Five percent (5%) late charge for any Environmental Service Charge balance
unpaid on the twentieth (20th) of the month following the billing date (in
addition to other rights and remedies provided or permitted in this Lease).
5.3 The Environmental Service Charge (Electrical Consumption Charge) shall be
based on Tenant's connected loads and on Tenant's heating and air conditioning
loads, each, as established by Landlord's engineers.
5.3.1 For that purpose, Tenant shall:
5.3.1.1 Furnish its final mechanical and electrical drawings to Landlord in
accordance with the requirements of this Lease; electrical drawings shall
include schedule of lighting fixtures with manufacture, lamp and ballast (if
applicable) rating in watts, schedule of all motors and appliances with rating
in watts or Kw. (a separate schedule may be submitted for this purpose);
mechanical drawings shall include air flow ratings;
5.3.1.2 Identification of lighting and any other devices intended to operate
"off-hours";
5.3.1.3 Cooperate with Landlord's engineers, furnishing all information required
for exact determination of the connected load of each electric energy using or
heat producing device or condition;
5.3.1.4 Agree to accept the estimate of Landlord's engineers for any information
or data described in Sections 5.3.1.1 and 5.3.1.2 hereof, but not shown on the
drawings (and other documents) supplied by Tenant.
-67-
<PAGE>
5.4 Landlord's engineers, using the Connected Electric Loads developed as per
Section 2.3 hereof and using its estimate for the number of hours usage will
calculate:
5.4.1 The charges (including taxes), that Tenant, as the operator of an
independently metered and monthly billed premises equipped with an "assumed"
air-cooled, roof-top type (reciprocating, package) air conditioning unit(s) with
built-in electric resistance type heating devices would pay to the public
Utility Company (identified above), at the lowest rate that would be applicable
to such premises for the electric demand and energy consumption, including
customer (type) and similar charges;
5.4.2 A component, reflecting the equivalent cost of amortizing the installation
of the "assumed" roof-type Air Conditioning Equipment, reflecting also the cost
of its maintenance and repair.
This component, subject to change by Landlord, is Two Hundred Ten and no/100
Dollars ($210.00) per year for each Ton of "nominal" capacity of this "assumed"
Equipment.
5.5 The "Environmental Service Charge" (Electrical Consumption Charge) shall be
the sum of the estimate described in Section 5.4.1 plus the component described
in Section 5.4.2.
5.6 In no event shall payment of the "Environmental Service Charge" (Electrical
Consumption Charge) abate, nor shall Lessee have any right of offset or
counterclaim against the payment of such a charge.
5.7 When developing the Environmental Service Charge, the following minimum
values and factors shall be applied:
5.7.1 All "off-hour" electric energy consuming devices (as described in Sections
4.1.1 through 4.1.5) will be considered operative twenty-four (24) hours per
day, year-round;
5.7.2 Any electric energy consuming device not provided with time-clock or not
connected to Lessor 's central control system shall be considered operative
twenty-four (24) hours per day, year around; including air handling equipment;
5.7.3 Outdoor air intake rate shall be calculated at rate not less than 0.18 CFM
per square foot unless more is indicated on Tenant's drawings;
5.7.4 Energy consumption of the "assumed" self-contained air conditioning unit
compressor(s) and condenser fan combined is 1,400 watts for each 12,000 BTUs
(ton of refrigeration) produced, and the sensible heat factor of this "assumed"
units cooling coil is seventy-nine percent (79%);
-68-
<PAGE>
5.7.5 Demand and electric energy consumption of the evaporator fan of the
"assumed" self-contained air conditioning unit is 500 watts/square feet of
conditioned area; this fan is assumed to be operative, whenever the store is
open;
5.7.6 For purposes of establishing the "nominal" capacity of the "assumed"
self-contained A.C. unit, the nearest unit with higher capacity than the peak
cooling load of the premises (as calculated by Landlord's engineers) will be
selected from the following list of "nominal capacity" (expressed in tons of
refrigeration effect):
2.0, 3.0, 5.0, 8.0, 10.0, 15.0, 20.0, 25.0, 30.0
When the peak cooling load of space exceeds 30.0 tons (360,000 BTUs) multiple
units with nearest identical capacities will be selected;
5.7.7 Maximum occupancy shall be seventy-five (75) square feet per person;
except thirty (30) square feet per person in food service type stores in areas
accessible to the public;
5.7.8 Full operating hours of space include one half hour each in the morning
before the Demised Premises opens for business and in the evening after the
Demised Premises has closed for the day, representing preparation and cleaning
functions of Tenant's personnel.
6.0 Discontinuation of Service:
6.1 In case Landlord finds, in its sole judgment, that it is not feasible to
furnish or continue to furnish electricity, or conditioned air, or in case it
shall become unlawful for Landlord to furnish electricity or conditioned air,
Landlord may discontinue providing either one or all of these services, in the
entire Shopping Center or in any part thereof.
6.2 In the event of discontinuation in the conditioned air services, Tenant
shall be responsible for purchasing and installing heating and air-conditioning
equipment at Tenant's own cost and expense, as required to provide air
conditioning and heating to the Demised Premises.
6.3 In the event of discontinuation in the electric energy services, Tenant
shall be responsible for purchasing its electricity directly from the utility
company; and Tenant shall at Tenant's sole cost and expense cause the Demised
Premises to be separately metered and billed.
6.4 Tenant agrees that Landlord shall not be liable to Tenant for disruption or
diminution of the electric or of the conditioned air services, nor for any
shortages or curtailments in the use of these services and in no event shall any
such disruption or shortage or curtailments entitle Tenant to any abatement of
the rents or other charges due under this lease, nor shall it constitute an
eviction, actual or constructive.
-69-
<PAGE>
EXHIBIT F-2
REGENCY SQUARE, RICHMOND, VIRGINIA
HEATING/COOLING SERVICES, FOOD COURT
1.0 Conditioned Air: Landlord will provide for the Demised Premises conditioned
air for air-conditioning and heating; on the days and between the hours of each
day, when the Shopping Center is designated open by Landlord, in capacities
adequate to satisfy the actual air conditioning load of the Demised Premises, as
determined by Landlord.
2.0 Tenant systems:
2.1 Tenant's air handling and distribution system shall be sized to offset the
in-space and transmission/radiation heat gains of the Demised Premises at the
design conditions listed and space temperatures indicated herein. These design
conditions and temperatures shall be used in the computations establishing the
"Environmental Service Charge" (Electrical Consumption Charge) rate, as
described in Exhibit F".
Indoor temperatures maintained by Tenant lower than those indicated, when
cooling, or higher, when heating, shall be deemed a violation of this Lease. In
case of such violation, Landlord shall have the right, in addition to any other
rights it may have, to estimate the energy consumed by such excess or excesses,
and to adjust the "Environmental Service Charge" (Electrical Consumption Charge)
to include additional monies for such excess(es), including also adjustment for
the past twelve (12) months.
2.1.1 "Peak" design conditions, air conditioning:
Indoor dry-bulb temperature 76 deg. F.
Indoor wet-bulb temperature 63 deg. F.
Outdoor dry-bulb temperature 95 deg. F.
Outdoor wet-bulb temperature 76 deg. F.
(At Tenant's counter only, and subject to each Tenant's individual use and
configuration of the Demised Premises)
2.1.2 "Peak" design conditions, heating:
Indoor dry-bulb temperature 70 deg. F.
Outdoor dry-bulb temperature 17 deg. F.
2.2 Tenant's air conditioning system shall be designed for and conform to the
following criteria:
2.2.1 Cooling media conditions:
-70-
<PAGE>
2.2.1.1 The conditioned air is delivered by Landlord's system with a supply
temperature not more than 54 deg. F. DB and 53.5 deg. F. WB and with a pressure
of 0.18 (eighteen-hundredth) of one inch W.G. on the downstream side of
Landlord's V.V. Box, all at times of "peak" design cooling outdoor conditions;
2.2.1.2 During all other times, these temperatures and pressure differential may
be reset, at Landlord's option, in accordance with energy conservation
principles.
2.2.2 Landlord's Work for the conditioned air service terminates with a Variable
Volume Air Terminal Box (V.V. Box), located near or in the Demised Premises;
thermostatic control of V.V. Box will be also provided by Landlord.
All air conditioning, ventilating and heating work and installation, required
for the beneficial use of the Demised Premises, beyond this junction point shall
be provided by Tenant, including all piping connections to Landlord's
distribution network;
2.2.3 Tenant shall install, located in the Demised Premises, an air distribution
system and electric heating devices selected by it to satisfy the heating and
air conditioning requirements of the Demised Premises, with the heating/cooling
media conditions and indoor/outdoor temperatures stated hereinbefore;
2.2.4 Tenant's air systems shall be designed to prevent escape of any odors or
contaminants into public areas or other stores; they shall not transmit noise or
vibration into the public areas or to other premises.
2.2.4.1 When the Tenant's operations are odor-producing (such as, but not
limited to food-service-establishments), a combination (dual-fan) make-up and
exhaust system shall be included, containing the odor-producing part of the
Demised Premises under negative pressure conditions with twenty-five percent
(25%) excess exhaust capacity over the outdoor air supply rate and in full
compliance with all applicable codes. A certified "air balance" report shall be
submitted to Lessor prior to commencement of Lessee's operations;
2.2.4.2 Mechanical (Motor-driven) exhaust systems shall be provided for all
toilets, capacities as directed by applicable codes; and
2.2.4.3 Routing of any ductwork outside of the Demised Premises shall be as
directed by Landlord; any such ductwork penetrating fire-protective barriers
shall be equipped with fusible-link dampers as prescribed by the applicable
code(s).
2.2.5 All ductwork carrying cooled air shall be provided with 1.0 in. thermal
insulation including vapor barrier; except that any such ductwork run in
air-conditioned spaces or hung ceilings that function as air return plenums need
not be insulated under the provisions of this Lease. Outdoor air intake ducts
and any ductwork carrying air-conditioned air outdoors shall have 2.0 in.
insulation, with vapor barrier.
-71-
<PAGE>
2.3 Tenant systems shall be automatically and thermostatically controlled to
permit heating by electric energy only, when:
2.3.1 The V.V. Box is in the "minimum" flow rate positions; and
2.3.2 The Shopping Center is "open" (as determined by Landlord).
2.4 Landlord may elect to connect Tenant's controls to a central, remote energy
management system in order to perform specific functions in which case, Tenant
shall incorporate into its systems (24 Volt) relays, of the type designated by
Landlord.
-72-
<PAGE>
EXHIBIT G - MEMORANDUM OF LEASE
STATE OF VIRGINIA
CITY OF RICHMOND
ONE FEDERAL STREET JOINT VENTURE, a Massachusetts joint venture, with offices in
Newark, New Jersey (hereinafter called "Landlord"), hereby leases to
_________________ _______________, a _______________, h(hereinafter called
"Tenant"), and Tenant hereby rents from Landlord for a period of ____________
(_____) years beginning ___________, 19__, and ending _________, _____, store
premises in Regency Square Shopping Center, located on property situated in the
City of Richmond, State of Virginia, and more particularly described on Exhibit
A attached hereto and made a part hereof by reference. All of the provisions set
forth in that certain Lease Agreement dated ___________, 19__, by and between
Landlord and Tenant are hereby incorporated into and made a part of this
Memorandum.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed this ____ day of __________, 19__
(Signatures and Acknowledgments for Landlord and Tenant to be added)
-73-
<PAGE>
EXHIBIT H - ESTOPPEL CERTIFICATE
Date: __________________
Re:
Gentlemen
The undersigned, as tenant under that certain lease dated ________________ 19__
together with amendments dated ________________, 19__ (collectively, the Lease)
made with ________________ as Landlord, for suite _____ at ________________
(Demised Premises) hereby ratifies the Lease and certifies, as of the above
date, to the following:
1. Name of Tenant: __________________________________________________________
2. Date of Commencement of Lease: ___________________________________________
3. Date of Termination of Lease: ____________________________________________
4. Square Footage of Demised Premises: ______________________________________
5. Tenant agrees that monthly rent commenced on ________________,19__, that the
current monthly rent, inclusive of pass throughs of expenses, is
$________________. A security deposit in the amount of $________________ has
(has not) been applied to rent.
6. Tenant has no option to renew the Lease except as set forth in the Lease.
Tenant has no option to expand into additional space in the Property except as
set forth in the Lease. Tenant does not have a right of first refusal on any
space in the property except as set forth in the Lease nor does Tenant have any
option to acquire the property in which the Demised Premises are located.
7. Tenant has accepted and is occupying the Demised Premises. Tenant has made no
advancements for or on behalf of Landlord for which it has the right to deduct
from or offset against future rents and has not paid rent or additional rent in
advance for more than the current month during which this certification is made.
Tenant agrees not to pay rent or additional rent more than one (1) month in
advance at any one time. Landlord is not reimbursing Tenant or paying Tenant's
rent obligations under any other lease and any free rent period under the lease
has expired.
8. All of the improvements contemplated by the Lease to be constructed by
Landlord have been fully completed by Landlord in accordance with the plans and
specifications approved by Tenant, and Tenant is in full and complete possession
of the Demised Premises, paying rent and actively conducting its business
therein. Tenant has received all amounts agreed to be contributed by Landlord
for finishing the Demised Premises to Tenant's specifications. None of
Landlord's
-74-
<PAGE>
contribution for Tenant's fit-up expenditures may be credited on Tenant's behalf
towards rent or additional rent due to Landlord.
9. The Lease dated ________________ is unmodified and in full force and effect
{except for modification(s) dated ________________} and is the entire agreement
between Landlord and Tenant pertaining to the Demised Premises.
10. There exists no breach or default nor state of facts with which notice, the
passage of time, or both, would result in a breach or default on the part of
either the Tenant or Landlord. To the best of Tenant's knowledge, no claim,
controversy, dispute, quarrel or disagreement exists between Tenant and
Landlord.
11. Tenant has not assigned its interest in the Lease, nor has it sublet any
portion of the Demised Premises under the Lease.
12. Tenant agrees that no future amendment of the Lease is enforceable unless
such amendment has been consented to in writing by the lender making a loan on
the Property of which the Demised Premises form a part.
The undersigned acknowledges that the foregoing certifications are made to
induce ________________ to/make a loan secured by/purchase/the building in which
the undersigned's Demised Premises are located, and that ________________
intends to rely on the certifications contained herein in making such loan.
----------------------------------
By:
-------------------------------
-75-
<PAGE>
SURETY AGREEMENT
TO BE ATTACHED TO AND FORM A PART OF
LEASE AGREEMENT DATED JULY 7, 1997,
BY AND BETWEEN
ONE FEDERAL STREET JOINT VENTURE (LANDLORD)
AND PIZZERIA REGINA OF VIRGINIA, INC. (TENANT)
In consideration of the execution of the above referenced Lease by Landlord, the
undersigned (hereinafter referred to as "Surety"), intending to be legally bound
hereby becomes Surety for the prompt and faith fill performance by Tenant of the
Lease and all the terms, covenants and conditions thereof including, but not
limited to, the payment by Tenant of the rent and all other sums to become due
thereunder.
Surety agrees that (1) tills obligation shall be binding upon Surety without any
further notice or acceptance hereof, and shall be deemed to have been accepted
by the execution of the Lease; (2) immediately upon each and every default by
Tenant, without any notice to or demand upon Surety, Surety will pay to Landlord
the sum or sums in default and will comply with or perform all the terms,
covenants and conditions of the Lease which shall be binding upon Tenant as
provided in the Lease; (3) no extension. forbearance or leniency extended by
Landlord to Tenant shall discharge Surety and Surety agrees at all times it will
be liable notwithstanding same and notwithstanding the fact that Surety has had
no notice of any default or of any forbearance or extension; (4) Landlord and
Tenant without notice to or consent by Surety may at any time or times enter
into such modifications, extensions, amendments or other covenants respecting
the Lease and Surety shall not be released thereby, it being intended that any
.joint, waiver, consent or agreement by Tenant by its own operation, shall be
deemed to be a joint, consent, waiver or agreement by Stately with respect
thereto and that Surety shall continue as Surety with respect to the Lease as so
modified, extended, amended or otherwise affected; and (5) neither the Surety's
obligation to make payment in accordance with the terms of this Surety Agreement
nor any remedy for the enforcement thereof shall be impaired, modified, changed,
released or limited in any manner whatsoever by any impairments, modification,
change, release or limitation of the liability of Tenant or its estate in
bankruptcy or of any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of the National Bankruptcy Act or
other statute, or from the decision of any court.
Surety further agrees to be bound by each and every covenant, obligation, power
and authorization, without limitation, in the Lease, with the same force and
effect as if it were designated in and had executed the Lease as Tenant
thereunder.
-76-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Surety Agreement under
seal as of the day and year first above written.
ATTEST: BOSTON RESTAURANT ASSOCIATES, INC.
a Delaware corporation
- --------------------------------
Secretary By:
-------------------------------
President
(CORPORATE SEAL)
Address of Surety:
999 Broadway, Suite 400
Saugus, MA 01906
-77-
- -------------------------------------------------------------------------------
LEASE AGREEMENT
by and between
ROUSE-ORLANDO, INC.
(Landlord)
and
PIZZERIA REGINA FLORIDA, INC.
t/a PIZZERIA REGINA
(Tenant)
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS AND ATTACHMENTS.........................................................................1
Section 1.1. Certain Defined Terms.......................................................................1
Section 1.2. Additional Defined Terms....................................................................4
Section 1.3. Attachments.................................................................................5
ARTICLE II PREMISES...........................................................................................6
Section 2.1. Demise......................................................................................6
Section 2.2. Measurement of Premises.....................................................................6
ARTICLE III TERM...............................................................................................6
Section 3.1. Term........................................................................................6
Section 3.2. Termination.................................................................................6
Section 3.3. Holding Over................................................................................7
ARTICLE IV USE................................................................................................7
Section 4.1. Prompt Occupancy and Use....................................................................7
Section 4.2. Storage and Office Areas....................................................................7
Section 4.3. Tenant Trade Name...........................................................................7
Section 4.4. Store Hours.................................................................................7
ARTICLE V RENTAL...............................................................................................8
Section 5.1. Rentals Payable.............................................................................8
Section 5.2. Annual Basic Rental.........................................................................8
Section 5.3. Annual Percentage Rental....................................................................8
Section 5.4. "Rental Year" Defined.......................................................................9
Section 5.5. "Gross Sales" Defined.......................................................................9
Section 5.6. Statements of Gross Sales...................................................................9
Section 5.7. Tenant's Records...........................................................................10
Section 5.8. Payment of Rental..........................................................................10
(i)
<PAGE>
Section 5.9. Advance Rental.............................................................................11
Section 5.10. Future Expansion..........................................................................11
ARTICLE VI TAXES..............................................................................................11
Section 6.1. Tenant to Pay Proportionate Share of Taxes.................................................11
Section 6.2. Payment of Proportionate Share of Taxes....................................................12
Section 6.3. "Tax Year" Defined.........................................................................12
Section 6.4. Taxes on Rental............................................................................12
ARTICLE VII IMPROVEMENTS......................................................................................13
Section 7.1. Landlord's Improvements....................................................................13
Section 7.2. Tenant's Improvements......................................................................13
Section 7.3. "Ready for Occupancy" Defined..............................................................13
Section 7.4. Effect of Opening for Business.............................................................14
Section 7.5. Mechanic's Liens...........................................................................14
Section 7.6. Tenant's Leasehold Improvements and Trade Fixtures.........................................15
ARTICLE VIII OPERATIONS.......................................................................................15
Section 8.1. Operations by Tenant.......................................................................15
Section 8.2. Signs and Advertising......................................................................17
Section 8.3. Painting and Displays by Tenant............................................................17
Section 8.4. Trash Removal Service......................................................................17
Section 8.5. Permitted Use Disclaimer...................................................................18
Section 8.6. Hazardous Substances.......................................................................18
ARTICLE IX REPAIRS AND ALTERATIONS............................................................................18
Section 9.1. Repairs to be Made by Landlord.............................................................18
Section 9.2. Repairs to be Made by Tenant...............................................................19
Section 9.3. Damage to Premises.........................................................................19
Section 9.4. Alterations by Tenant......................................................................19
Section 9.5. Changes and Additions to Shopping Center...................................................20
(ii)
<PAGE>
Section 9.6. Roof and Walls.............................................................................20
ARTICLE X COMMON AREAS........................................................................................20
Section 10.1. Use of Common Areas.......................................................................20
Section 10.2. Management and Operation of Common Areas..................................................20
Section 10.3. Employee Parking Areas....................................................................21
Section 10.4. Tenant's Contribution to Landlord's Operating Costs.......................................21
Section 10.5. Landlord's Operating Costs................................................................22
Section 10.6. Mall Heating, Ventilating and Air-Conditioning Equipment Contribution Rate................22
Section 10.7. Renovation or Expansion of Common Areas...................................................22
ARTICLE XI MARKETING FUND.....................................................................................22
Section 11.1. Marketing Fund............................................................................22
Section 11.2. Tenant's Contribution to Marketing Fund...................................................23
Section 11.3. Landlord's Contribution to Marketing Fund.................................................23
Section 11.4. "First Fund Year" and "Fund Year" Defined.................................................23
ARTICLE XII UTILITIES.........................................................................................23
Section 12.1. Water, Electricity, Telephone and Sanitary Sewer..........................................23
Section 12.2. Heating. Ventilating and Air-Conditioning.................................................24
Section 12.3. Fire Protection Sprinkler System..........................................................25
Section 12.4. Discontinuances and Interruptions of Utility Services.....................................25
ARTICLE XIII INDEMNITY AND INSURANCE..........................................................................25
Section 13.1. Indemnities...............................................................................25
Section 13.2. Landlord Not Responsible for Acts of Others...............................................26
Section 13.3. Tenant's Insurance........................................................................26
Section 13.4. Tenant's Contractor's Insurance...........................................................27
Section 13.5. Policy Requirements.......................................................................27
Section 13.6. Increase in Insurance Premiums............................................................28
Section 13.7. Waiver of Right of Recovery...............................................................28
(iii)
<PAGE>
Section 13.8. Tenant to Pay Proportionate Share of Insurance Costs......................................28
ARTICLE XIV DAMAGE AND DESTRUCTION............................................................................29
Section 14.1. Landlord's Obligation to Repair and Reconstruct...........................................29
Section 14.2. Landlord's Option to Terminate Lease......................................................29
Section 14.3. Demolition of Landlord's Building.........................................................29
Section 14.4. Insurance Proceeds........................................................................29
ARTICLE XV CONDEMNATION.......................................................................................30
Section 15.1. Effect of Taking..........................................................................30
Section 15.2. Condemnation Awards.......................................................................30
ARTICLE XVI ASSIGNMENTS AND SUBLETTING........................................................................30
Section 16.1. Landlord's Consent Required...............................................................30
Section 16.2. Transfer of Corporate Shares..............................................................32
Section 16.3. Transfer of Partnership Interests.........................................................32
Section 16.4. Acceptance of Rent from Transferee........................................................33
Section 16.5. Additional Provisions Respecting Transfers................................................33
ARTICLE XVII DEFAULT..........................................................................................33
Section 17.1. "Event of Default" Defined................................................................33
Section 17.2. Remedies..................................................................................34
Section 17.3. Damages...................................................................................35
Section 17.4. Remedies in Event of Bankruptcy or Other Proceeding.......................................37
ARTICLE XVIII SUBORDINATION AND ATTORNMENT....................................................................39
Section 18.1. Subordination.............................................................................39
Section 18.2. Mortgagee's Unilateral Subordination......................................................39
Section 18.3. Attornment................................................................................39
ARTICLE XIX NOTICES...........................................................................................40
Section 19.1. Sending of Notices........................................................................40
Section 19.2. Notice to Mortgagees......................................................................40
(iv)
<PAGE>
ARTICLE XX MISCELLANEOUS......................................................................................40
Section 20.1. Radius Restriction........................................................................40
Section 20.2. Estoppel Certificates.....................................................................41
Section 20.3. Inspections and Access by Landlord........................................................41
Section 20.4. Memorandum of Lease.......................................................................41
Section 20.5. Remedies Cumulative.......................................................................41
Section 20.6. Successors and Assigns....................................................................41
Section 20.7. Compliance with Laws and Regulations......................................................42
Section 20.8. Captions and Headings.....................................................................42
Section 20.9. Joint and Several Liability...............................................................42
Section 20.10. Broker's Commission......................................................................42
Section 20.11. No Discrimination........................................................................42
Section 20.12. No Joint Venture.........................................................................43
Section 20.13. No Option................................................................................43
Section 20.14. No Modification..........................................................................43
Section 20.15. Severability.............................................................................43
Section 20.16. Third Party Beneficiary..................................................................43
Section 20.17. Corporate Tenants........................................................................43
Section 20.18. Applicable Law...........................................................................44
Section 20.19. Performance of Landlord's Obligations by Mortgagee.......................................44
Section 20.20. Waiver of Certain Rights.................................................................44
Section 20.21. Limitation on Right of Recovery Against Landlord.........................................44
Section 20.22. Survival.................................................................................44
Section 20.23. Relocation of Premises...................................................................45
Section 20.24. Landlord's Option to Terminate Lease.....................................................46
Section 20.25. Financing Contingency....................................................................46
</TABLE>
(v)
<PAGE>
NOTICE OF LEASE MODIFICATIONS
-----------------------------
Please be advised that those Sections of the Lease between ROUSE-ORLANDO, INC.
and PIZZERIA REGINA FLORIDA, INC. listed below have been modified and/or
supplemented by the Rider to Lease found immediately following the signature
page of the Lease. It is therefore imperative that the Lease and Rider be read
simultaneously. Wherever there is any conflict between the Rider and the Lease,
the provisions of the Rider are paramount and the Lease shall be construed
accordingly.
Section 1.1. Section 13.1.
Section 2.1. Section 13.3.
Section 3.1. Section 13.4.
Section 3.3. Section 13.5.
Section 4.1. Section 13.6.
Section 4.3. Section 13.8.
Section 4.4. Section 14.1.
Section 5.3. Section 14.2.
Section 5.5. Section 14.3.
Section 5.6. Section 15.1.
Section 5.7. Section 16.1.
Section 5.8. Section 16.2.
Section 5.9. Section 17.1.
Section 5.10. Section 17.2.
Section 6.1. Section 17.3.
Section 6.2. Section 17.4.
Section 7.3. Section 18.1.
Section 7.4. Section 20.2.
Section 7.5. Section 20.3.
Section 7.6. Section 20.4.
Section 8.1. Section 20.6.
Section 8.2. Section 20.7.
Section 8.3. Section 20.17.
Section 8.4. Section 20.20.
Section 8.6. Section 20.21.
Section 9.1. Section 20.22.
Section 9.2. Section 20.23
Section 9.3. Article XXI
Section 9.4. Section 13.1
Section 9.5. Section 13.3
Section 9.6. Section 13.4
Section 10.2. Section 13.5
Section 10.3. Section 13.6
Section 10.6. Section 13.8
Section 10.7. Section 14.1
Section 11.2. Section 14.2
Section 11.4. Section 14.3
Section 12.1.
Section 12.2.
Section 12.4.
<PAGE>
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("Lease") dated _________________________________
by and between ROUSE-ORLANDO, INC., a Maryland corporation ("Landlord"), and
PIZZERIA REGINA FLORIDA, INC., a Florida corporation, t/a PIZZERIA REGINA,
("Tenant").
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the sum of One Dollar ($1.00) and the
mutual covenants herein contained, the parties hereto do hereby covenant and
agree as follows:
ARTICLE I
DEFINITIONS AND ATTACHMENTS
---------------------------
Section 1.1. Certain Defined Terms.
As used herein, the term:
(A) "Shopping Center Area" means those certain parcels of
land owned, leased or controlled by Landlord situate
in the City of Oviedo, County of Seminole, State of
Florida, more particularly described in Schedule
"A-1", and upon the opening for business with the
public, any such property used for expansion or
addition.
(B) "Shopping Center" means the Shopping Center Area and
the adjacent parcel or parcels of land not owned,
leased or controlled by Landlord but which are
operated as an integral part of the shopping center
known as The Oviedo Marketplace as more particularly
described in Schedule A-2 and, upon the opening for
business with the public, any such property used for
expansion or addition.
(C) "Landlord's Building" means the structure or portions
of a structure constructed or improved or to be
constructed or improved by Landlord in the Shopping
Center Area intended to be leased to retail tenants
in the location shown on Schedule A, as the same may
be altered, reduced, expanded or replaced from time
to time.
"Grand Opening Date" means the date and time
designated by Landlord as the grand opening date of
Landlord's Building.
(D) "Premises" means Tenant's portion of Landlord's
Building shown on Schedule A having the following
approximate dimensions:
Width: 22 feet, irregular
Depth: 31 feet, 1.5. inches, irregular
Floor Area: 714 square feet
The actual dimensions of the Premises shall be
determined by measurement pursuant to the provisions
of Section 2.2.
1
<PAGE>
(E) "Term" means a period of ten (10) years plus the part
of a month mentioned in Section 3.1., commencing and
ending as provided in Section 3.1.
(F) "Permitted Use" means the sale at retail of
traditional pizza, deep dish pizza and covered pizza
(with dough) with a variety of toppings including.
but not limited to, pepperoni, sausage, pepper,
onions and gourmet toppings such as artichokes and
sundried tomatoes. Tenant shall also have the right
to sell at retail, as incidental to pizza, hot pasta,
side salads served with an entree (but no more than 3
varieties of side salads at any one time), hot and
cold Italian sandwiches (but not more than 3
varieties of sandwiches at any one time); coffee,
tea, carbonated soft drinks in single-serving
containers, and fruit drinks.
(G) "Annual Basic Rental" means an amount equal to the
product of the following applicable figure multiplied
by Tenant's Floor Area (subject to adjustment as
provided in Section 5.1.):
Rental Years 1 - 2: $106.67
Rental Years 3 - 8: $116.00
Rental Years 9 - 10: $125.33
(H) "Annual Percentage Rental" means a sum equal to ten
percent (10%) of the amount by which annual Gross
Sales exceed the product of the following applicable
figure multiplied by Tenant's Floor Area (the
"Breakpoint"), subject to adjustment as provided in
Section 5.1.; provided, however, that in the event
during the first or last Rental Year Tenant is not
open for business for twelve (12) full months, the
Breakpoint shall be an amount equal to the Breakpoint
specified herein multiplied by a fraction, the
numerator of which shall be the actual number of
complete months during which Tenant was open for
business during the Rental Year and the denominator
of which shall be twelve (12):
Rental Years 1 - 2: $1,066.70
Rental Years 3 - 8: $1,160.00
Rental Years 9 - 10: $1,253.30
(I) "Advance Rental" means the sum of $0.00. See Section
5.9.
(J) "HVAC Equipment Contribution Rate" means the sum of
$2.00. See Schedule F.
(K) Intentionally deleted.
(L) "Marketing Fund Contribution Rate" means the sum of
$2.00. See Article XI. "Opening Contribution Rate"
means the sum of $2.00. See Article XI
(M) "Sprinkler Contribution Rate" means the sum of $.25.
See Section 12.3.
(N) "Trash Removal Service". See Section 8.4.
2
<PAGE>
(O) Intentionally deleted.
(P) "Tenant Notice Address" means
Boston Restaurant Associates
Attn: George Chapdelaine, President
Stone Hill Corporate Center
999 Broadway
Suite 400
Saugus, MA 01906
(Q) "Tenant Trade Name" means PIZZERIA REGINA which
Tenant represents it is entitled to use pursuant to
all applicable laws.
(R) "Store Hours" means 10:00 A.M. to 9:30 P.M., Monday
through Saturday; 12:00 NOON to 5:00 P.M. Sunday.
(S) "Restriction Area" means that geographic area within
a radius of one (1) mile measured from the Premises.
(T) "Landlord's Floor Area" means the aggregate number of
square feet of Landlord's leasable floor area in
Landlord's Building (exclusive of Anchor Stores and
exclusive of any building not structurally connected
to the enclosed mall or not having an opening into
the enclosed mall) which, with respect to any such
floor area which has been leased to any rent-paying
tenant, shall be determined in accordance with the
provisions of any lease applicable thereto and which,
with respect to any such floor area not so leased,
shall consist of all such leasable floor area in
Landlord's Building designed for the exclusive use
and occupancy of rent-paying tenants, which shall
exclude Common Areas, storage areas leased separately
from retail areas, mezzanine areas and areas used for
Landlord's management and promotion offices.
"Landlord's Qualifying Floor Area" means Landlord's
Floor Area less the floor area contained in such
tenants or tenants' premises as are designated from
time to time by Landlord. For purposes of this
Section, and calculation of Tenant's share of certain
costs and expenses as provided in this Lease, the
number of square feet contained in Landlord's
Qualifying Floor Area may therefore be less than the
number of square feet in Landlord's Floor Area.
(U) "Tenant's Floor Area" means the number of square feet
contained in that portion of Landlord's Floor Area
constituting the Premises which shall be measured (a)
with respect to the front and rear width thereof,
from the exterior face of the adjacent exterior or
corridor wall or, if none, from the center of the
demising partition, to the opposite exterior face of
the adjacent exterior or corridor wall, or if none,
to the center of the opposite demising partition, and
(b) with respect to the depth thereof, from the front
lease line (as designated on the Lease Outline
Drawings to be prepared by Landlord pursuant to
Schedule B hereof with respect to the Premises, or
pursuant to
3
<PAGE>
other leases, with respect to premises other than the
Premises) to the exterior face of the rear exterior
wall or corridor wall, or, if neither, to the center
of the rear demising partition; and in no case shall
there be any deduction for columns or other
structural elements within any tenant's premises.
(V) "Common Areas" means those areas and facilities which
may be furnished by Landlord or others in or near the
Shopping Center Area for the non-exclusive general
common use of tenants, Anchor Stores and other
occupants of the Shopping Center, their officers,
agents, employees and customers, including (without
limitation) parking areas, access areas (other than
public streets), employee parking areas, truckways,
driveways. loading docks and areas, delivery
passageways, package pick-up stations, sidewalks,
interior and exterior pedestrian walkways and
pedestrian bridges, malls, promenades, mezzanines,
roofs, sprinklers, plazas, courts, ramps, common
seating areas, landscaped and planted areas,
retaining walls, balconies, stairways, escalators,
elevators, bus stops, first-aid stations, sewage
treatment facilities (if any) lighting facilities,
comfort stations or rest rooms, civic center, meeting
rooms, and other similar areas, facilities or
improvements.
(W) "Default Rate" means an annual rate of interest equal
to the lesser of (i) the maximum rate of interest for
which Tenant may lawfully contract in the State in
which the Shopping Center is located, or (ii)
eighteen percent (18%).
(X) "Anchor Store" means any department or specialty
store which either (i) occupies a floor area in
excess of 50,000 square feet in the Shopping Center,
or (ii) is designated an Anchor Store in a notice to
that effect given by Landlord to Tenant.
(Y) "Tenant Operating Costs Contribution Rate" means the
sum of $7.50. See Section 10.4.
Section 1.2. Additional Defined Terms.
The following additional terms are defined in the places in this Lease
noted below:
Term Section
---- -------
"Additional Rental" 5.1
"Annual Marketing Fund Contribution" 11.2
"Association" 11.1
"Casualty" 14.1
"Commencement Date" 3.1
"Consumer Price Index" 11.2
"Event of Default" 17.1
"Expansion Opening Contribution" 11.2
"First Association Year" 11.4
"Fund Year" 11.4
4
<PAGE>
Term Section
---- -------
"Gross Sales" 5.5
"Hazardous Substance" 8.6
"Landlord's Operating Costs" 10.5
"Liquidated Damages" 17.3
"Marketing Fund" 11.1.
"Mortgage" 18.2
"Mortgagee" 18.2
"Opening Contribution" 11.2
"Ready for Occupancy" 7.3
"Release" 8.6
"Rental" 5.1
"Rental Year" 5.4
"Taxes" 6.1
"Tax Year" 6.3
"Term" 3.1
"Termination Damages" 17.3
"Termination Date" 3.2
Section 1.3. Attachments.
The following documents are attached hereto, and such documents, as
well as all drawings and documents prepared pursuant thereto, shall be deemed to
be a part hereof:
<TABLE>
<S> <C> <C>
Schedule "A" - Drawing of Shopping Center and Landlord's Building
Schedule "A-1" - Legal Description of Shopping Center Area
Schedule "A-2" - Legal Description of Shopping Center
Schedule "B" - Description of Landlord's Work and Tenant's Work
Schedule "C" - Design Criteria for Tenant Improvements
Schedule "D" - Form of Estoppel Certificate
Schedule "E" - Utility Consumption and Payment Schedule
- Tenant Heating, Ventilating and Air-Conditioning
Schedule "F" Schedule
Schedule "H" - Radon Gas
</TABLE>
5
<PAGE>
ARTICLE II
PREMISES
--------
Section 2.1. Demise.
Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, the Premises for the Term and at the Rental hereinafter described.
Landlord warrants that it and no other person or corporation has the
right to lease the Premises hereby demised, and that so long as Tenant is not in
default hereunder, Tenant shall have peaceful and quiet use and possession of
the Premises, subject to any Mortgage, and all matters of record or other
agreements to which this Lease is or may hereafter be subordinated.
Section 2.2. Measurement of Premises.
Not later than one hundred twenty (120) days after the commencement of
the Term, or within a reasonable time thereafter, Landlord shall measure the
Premises in the manner provided for in Section 1.1.U. and shall give Tenant
notice of the floor area so determined. The floor area stated in such notice
shall be deemed to be Tenant's Floor Area for all purposes of this Lease unless,
within ten (10) days after receipt of such notice, Tenant shall give Landlord
notice that Tenant believes Landlord's measurement to be inaccurate and the
reasons therefor, in which event Landlord shall cause its architect or engineer
to make such measurement and certify the same to the parties. Tenant's Floor
Area so certified shall be binding on the parties and shall be deemed to be
Tenant's Floor Area for all purposes of this Lease.
ARTICLE III
TERM
----
Section 3.1. Term.
The Term shall commence on the earlier to occur of (a) the first day on
which the Premises are "Ready for Occupancy" (as defined in Section 7.3.), or
(b) Tenant's opening of its business in the Premises (the "Commencement Date"),
and shall be for the number of years and months set forth in Section 1.1.E.,
plus the part of a month, if any, from the Commencement Date through the last
day of the month immediately prior to the first full calendar month in the Term.
Landlord and Tenant agree, upon demand of the other, to execute a declaration
setting forth the Commencement Date and Termination Date as soon as the
Commencement Date has been determined.
Section 3.2. Termination.
This Lease shall terminate at the end of the Term (the "Termination
Date") without the necessity of any notice from either Landlord or Tenant to
terminate the same, and Tenant hereby waives notice to vacate or quit the
Premises and agrees that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of possession of the Premises
from a tenant holding over to the same extent as if statutory notice had been
given. Tenant hereby agrees that if it fails to surrender the Premises at the
end of the Term, or any renewal thereof, Tenant will be liable to Landlord for
any and all damages which Landlord shall suffer by reason thereof, and Tenant
will indemnify Landlord against all claims and demands made by any succeeding
tenants against Landlord, founded upon delay by Landlord in delivering
possession of the Premises to such succeeding tenant. For the period of three
(3) months prior to the expiration of the Term, Landlord shall have the right to
display on the exterior of the
6
<PAGE>
Premises a "For Rent" sign (not to exceed one foot by one foot in size) and
during such period Landlord may show the Premises and all parts thereof to
prospective tenants during normal business hours.
Section 3.3. Holding Over.
If Tenant shall be in possession of the Premises after the expiration
of the Term, in the absence of any agreement extending the Term, the tenancy
under this Lease shall become one from month to month terminable by either party
on thirty (30) days' prior notice and shall be subject to all of the terms and
conditions of this Lease as though the Term had been extended from month to
month, except that (i) the Annual Basic Rental payable hereunder for each month
during said holdover period shall be equal to twice the monthly installment of
Annual Basic Rental payable during the last month of the Term, (ii) the
installments of Annual Percentage Rental payable hereunder for each such month
shall be equal to one-twelfth (1/12th) of the average Annual Percentage Rental
payable hereunder for the last three (3) Rental Years of the Term, or if the
Term is less than three (3) Rental Years, then such installments shall be equal
to one-twelfth (1/12th) of the Annual Percentage Rental payable hereunder for
the last complete Rental Year preceding expiration of the Term, and (iii) all
Additional Rental payable hereunder shall be prorated for each month during such
holdover period.
ARTICLE IV
USE
---
Section 4.1. Prompt Occupancy and Use.
Tenant shall occupy the Premises upon commencement of the Term and
thereafter will continuously use the Premises for the Permitted Use and for no
other purpose whatsoever; provided that, if the Premises are Ready for Occupancy
prior to the Grand Opening Date, Landlord may require Tenant to defer its
opening for business until the Grand Opening Date, in which event Tenant shall
not be required to pay any Rental until it is permitted to open for business.
Section 4.2. Storage and Office Areas.
Tenant shall use only such minor portions of the Premises for storage
and office purposes as are reasonably required therefor.
Section 4.3. Tenant Trade Name.
Unless otherwise approved by Landlord, Tenant shall conduct business in
the Premises only in the Tenant Trade Name.
Section 4.4. Store Hours.
Tenant shall cause its business to be conducted and operated in good
faith and in such manner as shall assure the transaction of a maximum volume of
business in and at the Premises. Tenant covenants and agrees that the Premises
shall remain open for business at least during the Store Hours or such other
hours as shall be seasonally adjusted by Landlord. If Tenant shall fail to cause
its business to be operated during the hours required by the preceding sentence,
or as otherwise required by Landlord, in addition to any other remedy available
to Landlord under this Lease, Tenant shall pay to Landlord. as liquidated
damages for such breach, a sum equal to One Hundred Dollars ($100.00) for each
hour or portion thereof during which Tenant shall fail to so operate.
7
<PAGE>
If Tenant shall request Landlord's approval of the opening of the
Premises for business for periods exceeding those designated above and Landlord
shall approve such request, Tenant shall pay for any additional costs incurred
by Landlord in connection with Tenant's opening the Premises for business during
such additional hours, including but not limited to, a proportionate share of
any additional amounts of Landlord's Operating Costs, additional costs of
heating, ventilating and air-conditioning the Premises, and additional utilities
furnished to the Premises by Landlord.
ARTICLE V
RENTAL
------
Section 5.1. Rentals Payable.
Tenant covenants and agrees to pay to Landlord as rental ("Rental") for
the Premises, the following:
(a) the Annual Basic Rental specified in clause G of
Section 1.1.; plus
(b) the Annual Percentage Rental specified in clause H of
Section 1.1.; plus
(c) all additional sums, charges or amounts of whatever
nature to be paid by Tenant to Landlord in accordance
with the provisions of this Lease, whether or not
such sums, charges or amounts are referred to as
additional rental (collectively referred to as
"Additional Rental");
provided, however, that the Annual Basic Rental and the minimum amount of Gross
Sales utilized in the computation of Annual Percentage Rental shall be adjusted
proportionately for any Rental Year of more or less than twelve (12) calendar
months.
Section 5.2. Annual Basic Rental.
Annual Basic Rental shall be payable in equal monthly installments in
advance on the first day of each full calendar month during the Term, the first
such payment to also include any prorated Annual Basic Rental for the period
from the date of the commencement of the Term to the first day of the first full
calendar month in the Term.
Section 5.3. Annual Percentage Rental.
Annual Percentage Rental shall be determined and payable monthly on or
before the fifteenth (15th) day following the close of each full calendar month
during the Term, based on Gross Sales for the preceding calendar month. Monthly
payments of Annual Percentage Rental shall be calculated by (a) dividing the
product specified in clause H of Section 1.1. by twelve (12), (b) subtracting
the quotient thus obtained from the amount of Gross Sales for the month in
question, and (c) multiplying the difference thus obtained (if greater than
zero) by the percentage specified in clause H of Section 1.1. The first monthly
payment of Annual Percentage Rental due hereunder shall include prorated Annual
Percentage Rental based on Gross Sales from the Commencement Date through the
last day of the month immediately prior to the first full calendar month in the
Term. As soon as practicable after the end of each Rental Year, the Annual
Percentage Rental paid or payable for such Rental Year shall be adjusted between
Landlord and Tenant, and each party hereby agrees to pay to the other, on
demand, the amount of any excess or deficiency in Annual Percentage Rental paid
by Tenant to Landlord during the preceding Rental Year as may be necessary to
effect adjustment to the agreed Annual Percentage Rental.
8
<PAGE>
Section 5.4. "Rental Year" Defined.
The first "Rental Year" shall commence on the first day of the Term and
shall end at the close of the twelfth full calendar month following the
commencement of the Term; thereafter, each Rental Year shall consist of
successive periods of twelve calendar months. Any portion of the Term remaining
at the end of the last full Rental Year shall constitute the final Rental Year
and Rental shall be apportioned therefor.
Section 5.5. "Gross Sales" Defined.
"Gross Sales" means the actual sales prices or rentals of all goods,
wares and merchandise sold, leased, licensed or delivered and the actual charges
for all services performed by Tenant or by any subtenant, licensee or
concessionaire in, at, from, or arising out of the use of the Premises, whether
for wholesale, retail, cash, credit, trade-in or otherwise, without reserve or
deduction for inability or failure to collect. Gross Sales shall include,
without limitation, sales and services (a) where the orders therefor originate
in, at, from, or arising out of the use of the Premises, whether delivery or
performance is made from the Premises or from some other place, (b) made or
performed by mail, telephone, or telegraph orders, (c) made or performed by
means of mechanical or other vending devices in the Premises, or (d) which
Tenant or any subtenant, licensee, concessionaire or other person in the normal
and customary course of its business would credit or attribute to its operations
in any part of the Premises. Any deposit not refunded shall be included in Gross
Sales. Each installment or credit sale shall be treated as a sale for the full
price in the month during which such sale is made, regardless of whether or when
Tenant receives payment therefor. No franchise, occupancy or capital stock tax
and no income or similar tax based on income or profits shall be deducted from
Gross Sales.
The following shall not be included in Gross Sales: (i) any exchange of
merchandise between stores of Tenant where such exchange is made solely for the
convenient operation of Tenant's business and not for the purpose of
consummating a sale made in, at or from the Premises, or for the purpose of
depriving Landlord of the benefit of a sale which would otherwise be made in or
at the Premises, (ii) returns to shippers or manufacturers, (iii) cash or credit
refunds to customers on transactions (not to exceed the actual selling price of
the item returned) otherwise included in Gross Sales, (iv) sales of trade
fixtures, machinery and equipment after use thereof in the conduct of Tenant's
business, (v) amounts collected and paid by Tenant to any government for any
sales or excise tax, and (vi) the amount of any discount on sales to employees.
Section 5.6. Statements of Gross Sales.
Tenant shall deliver to Landlord: (a) within ten (10) days after the
close of each calendar month of the Term, a written report signed by Tenant or
by an authorized officer or agent of Tenant, showing the Gross Sales made in the
preceding calendar month and (b) within sixty (60) days after the close of each
Rental Year a statement of Gross Sales for the preceding Rental Year which shall
conform to and be in accordance with generally accepted accounting principles
and Section 5.5. The annual statement shall be accompanied by the signed
certificate of an independent Certified Public Accountant stating specifically
that (i) he has examined the report of Gross Sales for the preceding Rental
Year, (ii) his examination included such tests of Tenant's books and records as
he considered necessary or appropriate under the circumstances, (iii) such
report presents fairly the Gross Sales of the preceding Rental Year, and (iv)
the Gross Sales conform with and are computed in compliance with the definition
of Gross Sales contained in Section 5.5. hereof. If Tenant shall fail to deliver
such annual statement and certificate to Landlord within said sixty (60) day
period, Landlord shall have the right thereafter to employ an
9
<PAGE>
independent Certified Public Accountant to examine such books and records,
including without limitation all records required by Section 5.7., as may be
necessary to certify the amount of Tenant's Gross Sales for such Rental Year,
and Tenant shall pay to Landlord the cost thereof as Additional Rental.
If such audit shall disclose that Tenant's records, in the opinion of
such independent Certified Public Accountant, are inadequate to disclose such
Gross Sales, Landlord shall be entitled to collect, as Additional Rental, an
equitable sum determined by such independent Certified Public Accountant but not
exceeding fifty percent (50%) of the Annual Basic Rental payable by Tenant
during the period in question.
Section 5.7. Tenant's Records.
For the purpose of permitting verification by Landlord of any amounts
due as Rental, Tenant will (i) cause the business upon the Premises to be
operated so that a duplicate sales slip, invoice or non-resettable cash register
receipt, serially numbered, or such other device for recording sales as Landlord
approves, shall be issued with each sale or transaction, whether for cash,
credit or exchange, and (ii) preserve for at least three (3) years, and during
the Term shall keep at the Tenant Notice Address or the Premises, a general
ledger, required receipts and disbursement journals and such sales records and
other supporting documentation, together with original or duplicate books and
records, which shall disclose all information required to determine Tenant's
Gross Sales and which shall conform to and be in accordance with generally
accepted accounting principles. At any time or from time to time after advance
notice to Tenant, Landlord or any Mortgagee, their agents and accountants, shall
have the right during business hours to make any examination or audit of such
books and records which Landlord or such Mortgagee may desire. If such audit
shall disclose a liability in any Rental Year for Rental in excess of the Rental
theretofore paid by Tenant for such period, Tenant shall promptly pay such
liability. Should any such liability for Rental equal or exceed three percent (3
%) of Annual Percentage Rental previously paid for such Rental Year, or if such
audit shall disclose that Tenant has underreported Gross Sales by five percent
(5%) or more during any Rental Year, (a) Tenant shall promptly pay the cost of
audit and interest at the Default Rate on all additional Annual Percentage
Rental then payable, accounting from the date such additional Annual Percentage
Rental was due and payable, and (b) an Event of Default shall be deemed to exist
unless, within ten (10) days after Landlord shall have given Tenant notice of
such liability, Tenant shall furnish Landlord with evidence satisfactorily
demonstrating to Landlord that such liability for additional Annual Percentage
Rental was the result of good faith error on Tenant's part. If such audit shall
disclose that Tenant's records, in Landlord's opinion, are inadequate to
accurately reflect Tenant's Gross Sales, Landlord shall have the right to retain
a consultant to prepare and establish a proper recording system for the
determination of Tenant's Gross Sales and Tenant agrees that it shall use the
system, books and records prescribed by such consultant for such purpose. Tenant
shall pay to Landlord, as Additional Rental, the fees and expenses of such
consultant.
Section 5.8. Payment of Rental.
Tenant shall pay all Rental when due and payable, without any setoff,
deduction or prior demand therefor whatsoever. Except as provided herein, Tenant
shall not pay any Rental earlier than one (1) month in advance of the date on
which it is due. If Tenant shall fail to pay any Rental within seven (7) days
after the same is due, Tenant shall be obligated to pay a late payment charge
equal to the greater of One Hundred Dollars ($100.00) or ten percent (10%) of
any Rental payment not paid when due to reimburse Landlord for its additional
administrative costs. In addition, any Rental which is not paid within seven (7)
days after the same is due shall bear interest at the Default Rate from the
first day due until paid. Any Additional Rental which shall become due shall be
payable, unless otherwise provided
10
<PAGE>
herein, with the next installment of Annual Basic Rental. Rental and statements
required of Tenant shall be paid and delivered to Landlord at the management
office of Landlord in the Shopping Center Area during normal business hours, or
at such other place as Landlord may from time to time designate in a notice to
Tenant. Any payment by Tenant or acceptance by Landlord of a lesser amount than
shall be due from Tenant to Landlord shall be treated as a payment on account.
The acceptance by Landlord of a check for a lesser amount with an endorsement or
statement thereon, or upon any letter accompanying such check, that such lesser
amount is payment in full, shall be given no effect, and Landlord may accept
such check without prejudice to any other rights or remedies which Landlord may
have against Tenant.
Section 5.9. Advance Rental.
Upon execution of this Lease by Tenant, Tenant shall pay to Landlord
the Advance Rental, the same to be held as security for the performance by
Tenant of all obligations imposed under this Lease which Tenant is required to
perform prior to the commencement of the Term. If Tenant shall faithfully
perform all such obligations, then the Advance Rental shall be applied, pro
tanto, by Landlord against the Rental first becoming due hereunder . Otherwise,
Landlord shall be entitled to apply the Advance Rental, pro tanto, against any
damages which it may sustain by reason of Tenant's failure to perform its
obligations under this Lease, but such application shall not preclude Landlord
from recovering greater damages if the same can be established.
Section 5.10. Future Expansion.
In the event that during the Term (i) additional Anchor Stores are
constructed in the Shopping Center, or (ii) one or more expansions of Landlord's
Building, each involving the addition of at least 50,000 square feet of
Landlord's Floor Area, are constructed, then, upon the opening for business of
each such additional Anchor Store or expansion of Landlord's Building, the
Annual Basic Rental shall be increased by ten percent (10%) for each such Anchor
Store or expansion opening and the Breakpoint shall be increased by a like
percentage.
ARTICLE VI
TAXES
-----
Section 6.1. Tenant to Pay Proportionate Share of Taxes.
Tenant shall pay in each Tax Year during the Term, as Additional
Rental, a proportionate share of all amounts payable by Landlord with respect to
real estate taxes, ad valorem taxes and assessments, general and special, taxes
on real estate rental receipts, taxes on Landlord's gross receipts, or any other
tax imposed upon or levied against real estate, or upon owners of real estate as
such rather than persons generally, extraordinary as well as ordinary,
foreseeable and unforeseeable, including taxes imposed on leasehold improvements
which are assessed against Landlord, payable with respect to or allocable to the
Shopping Center Area, including all land. Landlord's Building and all other
buildings and improvements situated thereon, together with the reasonable cost
(including fees of attorneys, consultants and appraisers) of any negotiation,
contest or appeal pursued by Landlord in an effort to reduce any such tax,
assessment or charge, and all of Landlord's reasonable administrative costs in
relation to the foregoing, all of the above being collectively referred to
herein as "Taxes". Tenant's proportionate share of Taxes shall be computed by
multiplying the amount of such Taxes (less any contributions by Anchor Stores)
by a fraction, the numerator of which shall be Tenant's Floor Area and the
denominator of which shall be Landlord's Floor Area. For the Tax Year in which
the Term commences or terminates, the provisions of this Section shall apply,
but Tenant's liability for its proportionate share of any Taxes for such year
shall
11
<PAGE>
be subject to a pro rata adjustment based upon the number of days of such Tax
Year falling within the Term.
Section 6.2. Payment of Proportionate Share of Taxes.
Tenants proportionate share of Taxes shall be paid by Tenant in monthly
installments in such amounts as are estimated and billed for each Tax Year
during the Term by Landlord, each such installment being due on the first day of
each calendar month. At any time during a Tax Year, Landlord may reestimate
Tenant's proportionate share of Taxes and thereafter adjust Tenant's monthly
installments payable during the Tax Year to reflect more accurately Tenant's
proportionate share of Taxes. Within one hundred twenty (120) days after
Landlord's receipt of tax bills for each Tax Year, or such reasonable (in
Landlord's determination) time thereafter, Landlord will notify Tenant of the
amount of Taxes for the Tax Year in question and the amount of Tenant's
proportionate share thereof. Any overpayment or deficiency in Tenant's payment
of its proportionate share of Taxes for each Tax Year shall be adjusted between
Landlord and Tenant, and Landlord and Tenant hereby agree that Tenant shall pay
Landlord or Landlord shall credit to Tenant's account (or, if such adjustment is
at the end of the Term, Landlord shall pay Tenant), as the case may be, within
fifteen (15) days of the aforesaid notice to Tenant, such amounts as may be
necessary to effect such adjustment. Failure of Landlord to provide such notice
within the time prescribed shall not relieve Tenant of its obligations hereunder
. Notwithstanding the foregoing, if Landlord is required under law to pay Taxes
in advance, Tenant agrees to pay Landlord, upon commencement of the Term of this
Lease, an amount equal to Tenant's share of Taxes for the entire Tax Year in
which the Term of this Lease commences, and in such event, at the termination of
this Lease, Tenant shall be entitled to a refund of Taxes paid which are
attributable to a period after this Lease expires.
Section 6.3. "Tax Year" Defined.
The term "Tax Year" means each twelve (12) month period (deemed, for
the purpose of this Section, to have 365 days) established as the real estate
tax year by the taxing authorities having lawful jurisdiction over the Shopping
Center Area.
Section 6.4. Taxes on Rental.
In addition to Tenant's proportionate share of Taxes, Tenant shall pay
to the appropriate agency any sales, excise and other taxes (not including,
however, Landlord's income taxes) levied, imposed or assessed by the State in
which the Shopping Center is situate or any political subdivision thereof or
other taxing authority upon any Rental payable hereunder . Tenant shall also
pay, prior to the time the same shall become delinquent or payable with penalty,
all taxes imposed on its inventory, furniture, trade fixtures, apparatus,
equipment, leasehold improvements installed by Tenant or by Landlord on behalf
of Tenant (except to the extent such leasehold improvements shall be covered by
Taxes referred to in Section 6.1.), and any other property of Tenant. Landlord
may require that Tenant's leasehold improvements be separately assessed by the
taxing authority.
12
<PAGE>
ARTICLE VII
IMPROVEMENTS
------------
Section 7.1. Landlord's Improvements.
Subject to the provisions of Section 20.24. hereof, and subject to
delays due to labor disputes, Acts of God or the public enemy, governmental
regulations or controls, Casualty or other conditions or causes beyond its
reasonable control, Landlord will, as promptly as possible, let contracts for
the construction of the improvements in or about Landlord's Building which it is
to construct or improve, as more particularly described in Schedule B.
Section 7.2. Tenant's Improvements.
Prior to the commencement of the Term, Tenant shall, at its sole cost
and expense, (a) promptly initiate and diligently pursue the design of all
improvements and other work to be performed by it pursuant to Schedule B on a
schedule which in Landlord's reasonable judgment will permit Tenant to complete
such improvements not later than ten (10) days prior to the Grand Opening Date
with respect to the exterior of the Premises and not later than seven (7) days
prior to the Grand Opening Date with respect to the interior of the Premises,
and (b) promptly commence and diligently pursue the construction and completion
of the Premises. Tenant will be permitted by Landlord to enter the Premises in
accordance with Schedule B for the purpose of performing its obligations under
Schedule B and for the purpose of installing its fixtures and other equipment,
provided (a) Tenant shall have obtained Landlord's approval of the plans and
specifications for such work, (b) Tenant shall have obtained a valid building
permit for construction of its improvements, (c) Tenant shall have deposited
with Landlord the policies or certificates of insurance required in Sections
13.3. and 13.4., and (d) Landlord shall have received full payment from Tenant
for the Opening Contribution and for those items set forth in Section D of
Schedule B. Tenant's activities shall be conducted so as not to unreasonably
interfere with Landlord's construction activities. Tenant shall maintain the
Premises in a clean and orderly condition during construction and merchandising.
All trash which may accumulate in connection with Tenant's construction
activities shall be deposited daily in dumpsters, provided by or for Landlord in
the Shopping Center Area as more particularly described in Sections C and D of
Schedule B. All trash which may accumulate in connection with Tenant's
merchandising activities shall be contained within the Premises and deposited
daily outside the storefront of the Premises. Landlord will remove such trash as
more particularly described in Sections C and D of Schedule B. During such
construction and merchandising period, Tenant shall perform all duties and
obligations imposed by this Lease, including, without limitation, those
provisions relating to insurance and indemnification, saving and excepting only
the obligation to pay Rental (other than any Additional Rental due Landlord by
reason of Tenant's failure to perform any of its obligations hereunder), which
obligation shall commence when the Term commences.
Section 7.3. "Ready for Occupancy" Defined.
The Premises shall be "Ready for Occupancy" as of the date on which the
last of the following shall have occurred:
(a) Landlord shall have substantially completed all work
to be performed by it pursuant to Schedule B which is
necessary to permit Tenant to commence the work to be
performed by it under Schedule B.
13
<PAGE>
(b) For the purpose of this clause (a) of Section 7.3.,
the term "substantially completed" shall mean the
date upon which Landlord has completed its work as
set forth in Sections A and B of Schedule B to the
extent, as determined by Landlord, that Tenant's
contractor may commence the construction of Tenant's
work as specified in Section C of Schedule B.
Landlord will not be required to complete the balance
of its work in the Premises until Tenant has
commenced construction of Tenant's work and completed
certain portions of said work designated by Landlord.
Landlord will then reenter the Premises and complete
its work;
(c) Sixty (60) calendar days shall have passed from the
date Tenant shall have received Landlord's
authorization to enter the Premises to complete the
work to be performed by it pursuant to Schedule B and
to fixture the Premises and otherwise make the
Premises ready for opening for business;
(d) At least 4.5 automobile parking spaces for each 1,000
square feet of Landlord's Floor Area shall be
available in the Shopping Center; and
(e) At least 145,000 square feet of Landlord's Floor Area
in Landlord's Building, including the Premises but
excluding Anchor Stores, shall have been
substantially completed and turned over to tenants
for finishing.
(f) An Anchor Store in the Shopping Center shall be
substantially completed and open or ready to open for
business.
Section 7.4. Effect of Opening for Business.
By opening the Premises for business, Tenant shall be deemed to have
(a) accepted the Premises, (b) acknowledged that the Premises are Ready for
Occupancy hereunder, and (c) agreed that the obligations of Landlord under
Schedule B have been fully performed.
Section 7.5. Mechanic's Liens.
No work performed by Tenant pursuant to this Lease, whether in the
nature of erection, construction, alteration or repair, shall be deemed to be
for the immediate use and benefit of Landlord so that no mechanic's or other
lien shall be allowed against the estate of Landlord by reason of any consent
given by Landlord to Tenant to improve the Premises. Tenant shall place such
contractual provisions as Landlord may request in all contracts and subcontracts
for Tenant's improvements assuring Landlord that no mechanic's liens will be
asserted against Landlord's interest in the Premises or the property of which
the Premises are a part. Said contracts and subcontracts shall provide, among
other things, the following: That notwithstanding anything in said contracts or
subcontracts to the contrary, Tenant's contractors, subcontractors, suppliers
and materialmen (hereinafter collectively referred to as "Contractors") will
perform the work and/or furnish the required materials on the sole credit of
Tenant; that no lien for labor or materials will be filed or claimed by the
Contractors against Landlord's interest in the Premises or the property of which
the Premises are a part; that the Contractors will immediately discharge any
such lien filed by any of the Contractor's suppliers, laborers, materialmen or
subcontractors; and that the Contractors will indemnify and save Landlord
harmless from any and all costs and expenses, including reasonable attorneys'
fees, suffered or incurred as a result of any such lien against Landlord's
interest that may be filed or claimed in connection with or arising out of work
undertaken by the Contractors. Tenant
14
<PAGE>
shall pay promptly all persons furnishing labor or materials with respect to any
work performed by Tenant or its Contractors on or about the Premises. If any
mechanic's or other liens shall at any time be filed against the Premises or the
property of which the Premises are a part by reason of work, labor, services or
materials performed or furnished, or alleged to have been performed or
furnished, to Tenant or to anyone holding the Premises through or under Tenant,
and regardless of whether any such lien is asserted against the interest of
Landlord or Tenant, Tenant shall forthwith cause the same to be discharged of
record or bonded to the satisfaction of Landlord. If Tenant shall fail to cause
such lien forthwith to be so discharged or bonded after being notified of the
filing thereof, then, in addition to any other right or remedy of Landlord,
Landlord may bond or discharge the same by paying the amount claimed to be due,
and the amount so paid by Landlord, including reasonable attorneys' fees
incurred by Landlord either in defending against such lien or in procuring the
bonding or discharge of such lien, together with interest thereon at the Default
Rate, shall be due and payable by Tenant to Landlord as Additional Rental.
Section 7.6. Tenant's Leasehold Improvements and Trade Fixtures.
All leasehold improvements (as distinguished from trade fixtures and
apparatus) installed in the Premises at any time, whether by or on behalf of
Tenant or by or on behalf of Landlord, shall not be removed from the Premises at
any time, unless such removal is consented to in advance by Landlord; and at the
expiration of this Lease (either on the Termination Date or upon such earlier
termination as provided in this Lease), all such leasehold improvements shall be
deemed to be part of the Premises, shall not be removed by Tenant when it
vacates the Premises, and title thereto shall vest solely in Landlord without
payment of any nature to Tenant.
All trade fixtures and apparatus (as distinguished from leasehold
improvements) owned by Tenant and installed in the Premises shall remain the
property of Tenant and shall be removable at any time, including upon the
expiration of the Term, provided Tenant shall not at such time be in default of
any terms or covenants of this Lease, and provided further, that Tenant shall
repair any damage to the Premises caused by the removal of said trade fixtures
and apparatus and shall restore the Premises to substantially the same condition
as existed prior to the installation of said trade fixtures and apparatus.
To protect Landlord in the event Tenant defaults hereunder, Tenant
hereby grants to Landlord a security interest in all goods, inventory,
equipment, trade fixtures and all personal property belonging to Tenant which
are or may be put into the Premises during the Term and all proceeds of the
foregoing. Said security interest shall secure all amounts to be paid by Tenant
to Landlord hereunder, including all costs of collection and other costs
specified in Sections 17.2. and 17.3. hereof, and any other indebtedness of
Tenant to Landlord. Tenant agrees to sign any financing statement or security
agreement requested by Landlord in order to perfect such security interest. The
lien granted hereunder shall be in addition to any Landlord's lien that may now
or at any time hereafter be provided by law.
ARTICLE VIII
OPERATIONS
----------
Section 8.1. Operations by Tenant.
In regard to the use and occupancy of the Premises, Tenant will at its
expense: (a) keep the inside and outside of all glass in the doors and windows
of the Premises clean; (b) keep all exterior store surfaces of the Premises
clean; (c) replace promptly any cracked or broken glass of the Premises with
glass of like color, grade and quality; (d) maintain the Premises in a clean,
orderly and sanitary condition
15
<PAGE>
and free of insects, rodents, vermin and other pests; (e) keep any garbage,
trash, rubbish or other refuse in rat-proof containers within the interior of
the Premises until removed; (f) deposit such garbage, trash. rubbish and refuse
on a daily basis in designated receptacles provided by Landlord; (g) keep all
mechanical apparatus free of vibration and noise which may be transmitted beyond
the Premises; (h) comply with all laws, ordinances, rules and regulations of
governmental authorities and all reasonable recommendations of Landlord's
casualty insurer(s) and other applicable insurance rating organization now or
hereafter in effect; (i) light the show windows of the Premises and exterior
signs and turn the same off to the extent required by Landlord; (j) keep in the
Premises and maintain in good working order one (1) or more type 2A10BC dry
chemical fire extinguisher(s); (k) comply with and observe all rules and
regulations established by Landlord from time to time which apply generally to
all retail tenants in the Shopping Center Area; (1) maintain sufficient and
seasonal inventory and have sufficient number of personnel to maximize sales
volume in the Premises; and (m) conduct its business in all respects in a
dignified manner in accordance with high standards of store operation consistent
with the quality of operation of the Shopping Center Area as determined by
Landlord and provide an appropriate mercantile quality comparable with the
entire Shopping Center.
In regard to the use and occupancy of the Premises and the Common
Areas, Tenant will not: (n) place or maintain any merchandise, signage, trash,
refuse or other articles in any vestibule or entry of the Premises, on the
footwalks or corridors adjacent thereto or elsewhere on the exterior of the
Premises, nor obstruct any driveway, corridor, footwalk, parking area, mall or
any other Common Areas; (o) use or permit the use of any objectionable
advertising medium such as, without limitation, loudspeakers, phonographs,
public address systems, sound amplifiers, reception of radio or television
broadcasts within the Shopping Center, which is in any manner audible or visible
outside of the Premises; (p) permit undue accumulations of or burn garbage,
trash, rubbish or other refuse within or without the Premises; (q) cause or
permit objectionable odors (in Landlord's opinion) to emanate or to be dispelled
from the Premises; (r) solicit business in any Common Areas; (s) distribute
handbills or other advertising matter in any Common Areas (including placing any
of the same in or upon automobiles parked in the parking areas); (t) permit the
parking of vehicles so as to interfere with the use of any driveway, corridor,
footwalk, parking area, mall or other Common Areas; (u) receive or ship articles
of any kind outside the designated loading areas for the Premises; (v) use the
mall, corridor, or any other Common Areas adjacent to the Premises for the sale
or display of any merchandise or for any other business, occupation or
undertaking; (w) conduct or permit to be conducted any auction, fictitious fire
sale, going out of business sale, bankruptcy sale (unless directed by a court
order), or other similar type sale in or connected with the Premises (but this
provision shall not restrict the absolute freedom of Tenant in determining its
own selling prices, nor shall it preclude the conduct of periodic seasonal,
promotional or clearance sales); (x) use or permit the use of any portion of the
Premises in a manner which will be in violation of law, or for any activity of a
type which is not generally considered appropriate for regional shopping centers
conducted in accordance with good and generally accepted standards of operation;
(y) place a load upon any floor which exceeds the floor load which the floor was
designed to carry; (z) operate its heating or air-conditioning in such a manner
as to drain heat or air-conditioning from the Common Areas or from the premises
of any other tenant or other occupant of the Shopping Center; (aa) use the
Premises for any unlawful or illegal business, use or purpose, or for any
business, use or purpose which is moral or disreputable (including without
limitation "adult entertainment establishments" and "adult bookstores"), or
which is hazardous, or in such manner as to constitute a nuisance of any kind
(public or private), or for any purpose or in any way in violation of the
certificates of occupancy (or other similar approvals of applicable governmental
authorities).
Tenant acknowledges that it is Landlord's intent that the Shopping
Center Area be operated in a manner which is consistent with the highest
standards of decency and morals prevailing in the
16
<PAGE>
community which it serves. Toward that end, Tenant agrees that it will not sell,
distribute, display or offer for sale any item which, in Landlord's good faith
judgment, is inconsistent with the quality of operation of the Shopping Center
Area or may tend to injure or detract from the moral character or image of the
Shopping Center Area within such community. Without limiting the generality of
the foregoing, Tenant will not sell, distribute, display or offer for sale (i)
any roach clip, water pipe, bong, coke spoon, cigarette papers, hypodermic
syringe or other paraphernalia commonly used in the use or ingestion of illicit
drugs, (ii) any pornographic, lewd, suggestive, or "adult" newspaper, book,
magazine, film, picture, recording, representation or merchandise of any kind,
or (iii) any handgun.
Section 8.2. Signs and Advertising.
Tenant will not place or suffer to be placed or maintained on the
exterior of the Premises, or any part of the interior visible from the exterior
thereof, any sign, banner, advertising matter or any other thing of any kind
(including, without limitation, any hand-lettered advertising), and will not
place or maintain any decoration, letter or advertising matter on the glass of
any window or door of the Premises without first obtaining Landlord's approval.
Tenant will, at its sole cost and expense, maintain such sign, banner,
decoration, lettering, advertising matter or other thing as may be permitted
hereunder in good condition and repair at all times.
Section 8.3. Painting and Displays by Tenant.
Tenant will not paint or decorate any part of the exterior of the
Premises, or any part of the interior of the Premises visible from the exterior
thereof, without first obtaining Landlord's approval. Tenant will install and
maintain at all times, subject to the other provisions of this Section, displays
of merchandise in the show windows (if any) of the Premises. All articles, and
the arrangement, style, color and general appearance thereof, in the interior of
the Premises including, without limitation, window displays, advertising matter,
signs, merchandise and store fixtures, shall be in keeping with the character
and standards of the improvements within the Shopping Center, as determined by
Landlord. Landlord reserves the right to require Tenant to correct any
non-conformity.
Section 8.4. Trash Removal Service.
At its option, Landlord may furnish (or authorize others to furnish) a
service for the removal of trash from receptacles designated by Landlord for the
daily deposit by Tenant of its garbage, trash, rubbish or other refuse, and, if
it shall do so, then in each Rental Year, at Landlord's election, Tenant shall
either (i) reimburse Landlord monthly, as Additional Rental, for all costs
incurred by Landlord in furnishing such service, or (ii) pay Landlord the Trash
Removal Service Charge, if any, set forth in clause N of Section 1.1. in twelve
(12) equal monthly installments, subject to adjustments reflecting any increase
in Landlord's cost and expense in furnishing such trash removal service, or
(iii) pay directly such person, firm or corporation authorized by Landlord to
provide such trash removal service; provided, however, that all amounts which
Tenant is obligated to pay to Landlord pursuant to clause (i) or (ii) above
shall not exceed the amounts which Tenant would otherwise be obligated to pay
directly to the same independent contractor utilized by Landlord for the removal
of Tenant's trash, if Tenant were dealing with such contractor at arm's length
for trash removal services for the Premises.
17
<PAGE>
Section 8.5. Permitted Use Disclaimer.
Nothing contained in this Lease shall be construed to indicate any
intent or attempt on the part of Landlord to restrict the price or prices at
which Tenant may sell any goods or services permitted to be sold at or from the
Premises pursuant to this Lease.
Section 8.6. Hazardous Substances.
Tenant shall not use or allow the Premises to be used for the Release,
storage, use, treatment, disposal or other handling of any Hazardous Substance,
without the prior consent of Landlord. The term "Release" shall have the same
meaning as is ascribed to it in the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., as amended
("CERCLA"). The term "Hazardous Substance" means (i) any substance defined as a
"hazardous substance" under CERCLA, (ii) petroleum, petroleum products, natural
gas, natural gas liquids, liquefied natural gas, and synthetic gas, and (iii)
any other substance or material deemed to be hazardous, dangerous, toxic, or a
pollutant under any federal, state or local law, code, ordinance or regulation.
Tenant shall: (a) give prior notice to Landlord of any activity or
operation to be conducted by Tenant at the Premises which involves the Release,
use, handling, generation, treatment, storage, or disposal of any Hazardous
Substance ("Tenant's Hazardous Substance Activity"), (b) comply with all
federal, state, and local laws, codes, ordinances, regulations, permits and
licensing conditions governing the Release, discharge, emission, or disposal of
any Hazardous Substance and prescribing methods for or other limitations on
storing, handling, or otherwise managing Hazardous Substances, (c) at its own
expense, promptly contain and remediate any Release of Hazardous Substances
arising from or related to Tenants Hazardous Substance Activity in the Premises,
Landlord's Building, the Shopping Center, the Shopping Center Area or the
environment and remediate and pay for any resultant damage to property, persons,
and/or the environment, (d) give prompt notice to Landlord, and all appropriate
regulatory authorities, of any Release of any Hazardous Substance in the
Premises, Landlord's Building, the Shopping Center, the Shopping Center Area or
the environment arising from or related to Tenants Hazardous Substance Activity,
which Release is not made pursuant to and in conformance with the terms of any
permit or license duly issued by appropriate governmental authorities, any such
notice to include a description of measures taken or proposed to be taken by
Tenant to contain and remediate the Release and any resultant damage to
properly, persons, or the environment, (e) at Landlord's request, which shall
not be more frequent than once per calendar year, retain an independent engineer
or other qualified consultant or expert acceptable to Landlord, to conduct, at
Tenants expense, an environmental audit of the Premises and immediate
surrounding areas, and the scope of work to be performed by such engineer,
consultant, or expert shall be approved in advance by Landlord, and all of the
engineer's, consultant's, or expert's work product shall be made available to
Landlord, (f) at Landlord's request from time to time, execute affidavits,
representations and the like concerning Tenant's best knowledge and belief
regarding the presence of Hazardous Substances in the Premises, (g) reimburse to
Landlord, upon demand, the reasonable cost of any testing for the purpose of
ascertaining if there has been any Release of Hazardous Substances in the
Premises, if such testing is required by any governmental agency or Landlord's
Mortgagee, (h) upon expiration or termination of this Lease, surrender the
Premises to Landlord free from the presence and contamination of any Hazardous
Substance.
ARTICLE IX
REPAIRS AND ALTERATIONS
-----------------------
Section 9.1. Repairs to be Made by Landlord.
18
<PAGE>
Landlord, at its expense, will make, or cause to be made structural
repairs to exterior walls, structural columns, roof penetrations and structural
floors which collectively enclose the Premises (excluding, however, all doors,
door frames, storefronts, windows and glass); provided Tenant shall give
Landlord notice of the necessity for such repairs.
Section 9.2. Repairs to be Made by Tenant.
All repairs to the Premises or any installations, equipment or
facilities therein, other than those repairs required to be made by Landlord
pursuant to Sections 9.1., 12.3. and 14.1., shall be made by Tenant at its
expense. Without limiting the generality of the foregoing, Tenant will keep the
interior of the Premises, together with all electrical, plumbing and other
mechanical installations therein and (if and to the extent provided in Schedule
F) the heating, ventilating and air-conditioning system installed by Tenant in
the Premises, in good order and repair, and will make all replacements from time
to time required thereto at its expense. Tenant will surrender the Premises at
the expiration of the Term or at such other time as it may vacate the Premises
in as good condition as when received, excepting depreciation caused by ordinary
wear and tear, damage by Casualty, unavoidable accident or Act of God. Tenant
will not overload the electrical wiring serving the Premises or within the
Premises, and will install at its expense, subject to the provisions of Section
9.4., any additional electrical wiring which may be required in connection with
Tenant's apparatus. Any damage or injury sustained by any person because of
mechanical, electrical, plumbing or any other equipment or installations, whose
maintenance and repair shall be the responsibility of Tenant, shall be paid for
by Tenant, and Tenant hereby agrees to indemnify and hold Landlord harmless from
and against all claims, actions, damages and liability in connection therewith,
including, but not limited to attorneys' and other professional fees, and any
other cost which Landlord might reasonably incur.
Section 9.3. Damage to Premises.
Tenant will repair promptly at its expense any damage to the Premises
and, upon demand, shall reimburse Landlord (as Additional Rental) for the cost
of the repair of any damage elsewhere in the Shopping Center, caused by or
arising from the installation or removal of property in or from the Premises,
regardless of fault or by whom such damage shall be caused (unless caused by
Landlord, its agents, employees or contractors). If Tenant shall fail to
commence such repairs within five (5) days after notice to do so from Landlord,
Landlord may make or cause the same to be made, and Tenant agrees to pay to
Landlord promptly upon Landlord's demand, as Additional Rental, the cost thereof
with interest thereon at the Default Rate until paid.
Section 9.4. Alterations by Tenant.
Tenant will not make any alterations, renovations, improvements or
other installations in, on or to any part of the Premises (including, without
limitation, any alterations of the storefront, signs, structural alterations, or
any cutting or drilling into any part of the Premises or any securing of any
fixture, apparatus, or equipment of any kind to any part of the Premises) unless
and until Tenant shall have caused plans and specifications therefor to have
been prepared, at Tenant's expense, by an architect or other duly qualified
person and shall have obtained Landlord's approval thereof. If such approval is
granted, Tenant shall cause the work described in .such plans and specifications
to be performed, at its expense, promptly, efficiently, competently and in a
good and workmanlike manner by duly qualified and licensed persons or entities,
using first grade materials, without interference with or disruption to the
operations of tenants or other occupants of the Shopping Center. All such work
shall comply with all applicable codes, rules, regulations and ordinances.
19
<PAGE>
Section 9.5. Changes and Additions to Shopping Center.
Landlord reserves the right at any time and from time to time, to (a)
make or permit changes or revisions in the plan for the Shopping Center or the
Shopping Center Area including additions to, subtractions from, rearrangements
of, alterations of, modifications of, or supplements to, the building areas,
walkways, driveways, parking areas, or other Common Areas, (b) construct
improvements in Landlord's Building and the Shopping Center Area and make
alterations thereof or additions thereto and build additional stories on or in
any such building(s) and build adjoining same, including (without limitation)
kiosks, pushcans and other displays in the Common Areas, and (c) make or permit
changes or revisions in the Shopping Center or the Shopping Center Area,
including additions thereto, and to convey portions of the Shopping Center Area
to others for the purpose of constructing thereon other buildings or
improvements, including additions thereto and alterations thereof; provided,
however, that no such changes, rearrangements or other construction shall reduce
the parking areas below the number of parking spaces required by law.
Section 9.6. Roof and Walls.
Landlord shall have the exclusive right to use all or any part of the
roof of the Premises for any purpose; to erect additional stories or other
structures over all or any part of the Premises; to erect in connection with the
construction thereof temporary scaffolds and other aids to construction on the
exterior of the Premises, provided that access to the Premises shall not be
denied; and to install, maintain, use, repair and replace within the Premises
pipes, ducts, conduits, wires and all other mechanical equipment serving other
parts of the Shopping Center Area, the same to be in locations within the
Premises as will not unreasonably deny Tenant's use thereof. Landlord may make
any use it desires of the side or rear walls of the Premises or other structural
elements of the Premises (including, without limitation, free-standing columns
and footings for all columns), provided that such use shall not encroach on the
interior of the Premises unless (i) all work carried on by Landlord with respect
to such encroachment shall be done during hours when the Premises are not open
for business and otherwise shall be carried out in such a manner as not to
unreasonably interfere with Tenant's operations in the Premises, (ii) Landlord,
at its expense, shall provide any security services to the Premises required by
such work, and (iii) Landlord, at its expense, shall repair all damage to the
Premises resulting from such work.
ARTICLE X
COMMON AREAS
------------
Section 10.1. Use of Common Areas.
Landlord grants to Tenant and its agents, employees and customers, a
non-exclusive license to use the Common Areas in common with others during the
Term, subject to the exclusive control and management thereof at all times by
Landlord or others and subject, further, to the rights of Landlord set forth in
Sections 9.5. and 10.2.
Section 10.2. Management and Operation of Common Areas.
Landlord will operate, manage, secure, insure and maintain, or will
cause to be operated, managed, secured, insured and maintained, the Common Areas
in a manner deemed by Landlord to be reasonable and appropriate and in the best
interests of the Shopping Center and as are reasonably required for the
operation of a first class shopping center. Landlord will have the right (i) to
establish,
20
<PAGE>
modify and enforce reasonable rules and regulations with respect to the Common
Areas; (ii) to enter into, modify and terminate easement and other agreements
pertaining to the use and maintenance of the Common Areas; (iii) to close all or
any portion of the Common Areas to such extent as may, in the opinion of
Landlord, be necessary to prevent a dedication thereof or the accrual of any
rights to any person or to the public therein; (iv) to close temporarily any or
all portions of the Common Areas; and (v) to do and perform such other acts in
and to said areas and improvements as, in the exercise of good business
judgment, Landlord shall determine to be advisable.
Section 10.3. Employee Parking Areas.
Tenant and its employees shall park their cars only in such areas
designated for that purpose by Landlord. Upon request by Landlord, Tenant shall
furnish Landlord with State automobile license numbers assigned to Tenant's car
or cars and cars used by its employees and shall thereafter notify Landlord of
any changes in such information within five (5) days after such changes occur.
If Tenant or its employees shall fail to park their cars in the designated
parking areas, then, without limiting any other remedy which Landlord may pursue
in the event of Tenants default, Landlord, after giving notice to Tenant, shall
have the right to charge Tenant, as Additional Rental, the sum of Ten Dollars
($10.00) per day per car parked in violation of the provisions of this Section.
Tenant shall notify its employees in writing of the provisions of this Section.
Section 10.4. Tenant's Contribution to Landlord's Operating Costs.
Tenant will pay Landlord, as Additional Rental, as Tenant's agreed
contribution toward Landlord's Operating Costs, an amount calculated as follows:
(a) In the period from the Commencement Date through the end
of the initial calendar year of the Term, Tenant shall pay to Landlord on the
first day of each calendar month an amount determined by (i) multiplying
Tenant's Operating Costs Contribution Rate set forth in Section 1.1.Y. by
Tenant's Floor Area (the "Initial Operating Costs Contribution"), and (ii)
dividing the product thus obtained by twelve (12), the first such payment to
include also any prorated amount for the period from the date of the
commencement of the Term to the first day of the first full calendar month in
the Term.
(b) In the succeeding calendar year of the Term, Tenant shall
pay to Landlord on the first day of each calendar month an amount (the "Annual
Operating Costs Contribution") determined by adjusting the Initial Operating
Costs Contribution by the greater of (i) four percent (4%) or (ii) the increase
in the Consumer Price index for All Urban Consumers (U.S. City Average)
published by the Bureau of Labor Statistics of the United States Department of
Labor (the "Consumer Price Index") for the December immediately prior to the
year for which the adjustment is being made as compared to the December Consumer
Price Index reported for the preceding year. In each subsequent year, Tenant's
Annual Operating Costs Contribution shall be an amount equal to Tenant's Annual
Operating Costs Contribution for the prior calendar year adjusted by the greater
of (i) 4% or (ii) the Consumer Price Index for the December immediately prior to
the year for which the adjustment is being made as compared to the December
Consumer Price Index reported for the preceding year. The Annual Operating Costs
Contribution shall be paid by Tenant in twelve (12) equal monthly installments,
in advance, on the first day of each calendar month.
If during the Term the Consumer Price Index is changed or discontinued,
Landlord shall choose a comparable index, formula or other means of measurement
of the relative purchasing power of the
21
<PAGE>
dollar and such substitute index, formula or other means shall be utilized in
place of the Consumer Price Index as it had been originally designated in this
Lease.
Section 10.5. Landlord's Operating Costs.
The term "Landlord's Operating Costs" means all costs and expenses
incurred by or on behalf of Landlord in operating, managing, insuring, securing
and maintaining the Common Areas pursuant to Section 10.2., but does not include
any costs or expenses which Tenant is otherwise specifically required to pay
pursuant to this Lease.
Section 10.6. Mall Heating, Ventilating and Air-Conditioning Equipment
Contribution Rate.
In each Rental Year, Tenant shall pay Landlord annually (in twelve (12)
equal monthly installments together with the Annual Basic Rental), as Additional
Rental, an amount (the "Mall Heating, Ventilating and Air-Conditioning Equipment
Contribution") determined by multiplying the Mall Heating, Ventilating and
Air-Conditioning Equipment Contribution Rate by Tenant's Floor Area.
Section 10.7. Renovation or Expansion of Common Areas.
If, during the Term, the Common Areas, or any part thereof, are
expanded or renovated to the extent that Landlord's Improvement Costs incurred
in connection therewith exceed a sum equal to Twenty Dollars ($20.00) per square
foot of Landlord's Floor Area, the Annual Basic Rental and the dollar amount set
forth in clause H of Section 1.1 each shall be increased by ten percent (10%)
thereof for each such expansion or renovation effective as of the date on which
Landlord delivers to Tenant a notice that Landlord has incurred such costs. The
term "Landlord's Improvement Costs" means all direct and indirect costs and
expenses incurred by Landlord and properly allocated to the construction and
development of capital improvements to the Common Areas, but not including any
cost or expense included in Landlord's Operating Costs. Upon reasonable notice,
Landlord shall make available for Tenant's inspection (which inspection shall be
at Tenant's sole cost and expense) at Landlord's office, during normal business
hours, Landlord's records relating to Landlord's Improvement Costs as to which
any such notice shall have been delivered.
ARTICLE XI
MARKETING FUND
--------------
Section 11.1. Marketing Fund.
On or before the Grand Opening Date of Landlord's Building, a special
fund for promoting the Shopping Center will be established ("Marketing Fund").
The Marketing Fund shall be used by Landlord in its sole discretion to pay the
costs and expenses associated with the formulation and carrying out of an
ongoing program for the marketing of the Shopping Center, which program may
include, without limitation, special events, shows, displays, signs, marquees,
decor, seasonal events, institutional advertising for the Shopping Center,
promotional literature and other activities within the Shopping Center designed
to attract customers. In addition, Landlord may use the Marketing Fund to defray
the costs of administration of the Marketing Fund including (without limitation)
the salary of a marketing administrator and related personnel (whether or not
located onsite), rent and insurance. In marketing the Shopping Center, Landlord
shall have the right to name Tenant's store in the Shopping Center.
22
<PAGE>
Section 11.2. Tenant's Contribution to Marketing Fund.
(a) Tenant shall pay to Landlord in each Rental Year of the
Term an amount (the "Annual Marketing Fund Contribution") determined by
multiplying the Marketing Fund Contribution Rate, as set forth in Section
1.1.L., by Tenant's Floor Area. The Annual Marketing Fund Contribution shall be
paid by Tenant in twelve (12) equal monthly installments in advance on the first
day of each calendar month. The Annual Marketing Fund Contribution shall be
adjusted annually, as of the first day of each Fund Year during the Term, in
that proportion which the Consumer Price Index for All Urban Consumers (U.S.
City Average) of the United States Bureau of Labor Statistics ('Consumer Price
Index') most recently reported as of such adjustment date bears to the Consumer
Price Index most recently reported as of the January 1 preceding the
commencement of the Term, all such adjustments to be apportioned for fractional
years.
If during the Term the Consumer Price Index is changed or discontinued,
Landlord shall apply a comparable index, formula or other means of measurement
of the relative purchasing power of the dollar and such substitute index,
formula or other means shall be utilized in place of the Consumer Price Index as
if it had been originally designated in this Lease.
(b) If, following the Grand Opening Date, the Shopping Center
shall be expanded by adding floor area equal to more than ten percent (10%) of
Landlord's Floor Area on the Grand Opening Date, Tenant shall pay to Landlord a
one-time charge for each such expansion (the "Expansion Opening Marketing
Contribution") determined by (i) multiplying Tenant's Floor Area by the average
rate per square foot of all Marketing Fund Contributions which tenants in the
expansion area shall become obligated pursuant to their respective leases to
make to Landlord with respect to promotion and advertising of the opening of
such expansion for business, and (ii) dividing the product thus obtained by two
(2).
(c) Prior to the date on which Tenant commences construction
in the Premises, Tenant shall pay Landlord an additional amount (the "Opening
Contribution") determined by multiplying the Opening Contribution Rate set forth
in Section 1.1.L by Tenant's Floor Area.
Section 11.3. Landlord's Contribution to Marketing Fund.
Each Fund Year, Landlord shall-contribute to the Marketing Fund an
amount equal to fifteen percent (15%) of the aggregate contributions made by the
other contributors to the Marketing Fund for such period.
Section 11.4. "First Fund Year" and "Fund Year" Defined.
"First Fund Year" shall mean the period commencing on the first day of
the Term and terminating on the second succeeding December 31. "Fund Year" means
each successive period of twelve (12) months commencing with January 1.
ARTICLE XII
UTILITIES
---------
Section 12.1. Water, Electricity, Telephone and Sanitary Sewer.
Landlord will provide, or cause to be provided, at points in or near
the Premises the facilities necessary to enable Tenant to obtain for the
Premises water, electricity, telephone and sanitary sewer
23
<PAGE>
service. Schedule E sets forth those utilities for which service shall be
provided to the Premises by Landlord, if any, as well as the manner in which
charges for their consumption shall be determined and paid by Tenant. Unless
otherwise provided in Schedule E, Landlord shall not be responsible for
providing any utility service to the Premises, nor for providing meters or other
devices for the measurement of utilities supplied to the Premises, and Tenant
shall arrange for the furnishing to the Premises of such utility services as it
may require, as well as for the installation of all such meters or other
devices. Tenant shall be solely responsible for and shall promptly pay, as and
when the same become due and payable, all charges for water, sewer, electricity,
gas, telephone and any other utility used or consumed in the Premises and
supplied by a public utility or public authority or any other person, firm or
corporation. including Landlord, supplying the same.
If Schedule E does not provide that Landlord will supply electricity to
the Premises, Landlord shall have the option, exercisable at any time and from
time to time during the Term, to supply electricity to the Premises. If Landlord
shall elect to supply electricity to the Premises, Tenant will purchase its
requirements for such service tendered by Landlord, and Tenant will pay
Landlord, within ten (10) days after mailing by Landlord to Tenant of statements
therefor, at the applicable rates determined by Landlord from time to time which
Landlord agrees shall be reasonable and not be in excess of the public utility
rates for the same service, if applicable, but in no event less than Landlord's
actual cost. If Landlord so elects to supply electricity, Tenant shall execute
and deliver to Landlord, within ten (10) days after request therefor, any
documentation reasonably required by Landlord to effect such change in the
method of furnishing of electricity.
Landlord, in its sole discretion, shall have the right, from time to
time, to alter the method and source of supply to the Premises of electricity or
any other utility, and Tenant agrees to execute and deliver to Landlord such
documentation as may be required to effect such alteration; provided, however,
that Tenant shall not be required to bear any portion of the cost of such
alteration or to incur any additional financial obligation as a result of such
alteration, other than as provided in Schedule E.
Tenant shall not at any time overburden or exceed the capacity of the
mains, feeders, ducts, conduits, or other facilities by which such utilities are
supplied to, distributed in or serve the Premises. If Tenant desires to install
any equipment which shall require additional utility facilities or utility
facilities of a greater capacity than the facilities provided by Landlord, such
installation shall be subject to Landlord's prior approval of Tenant's plans and
specifications therefor. If such installation is approved by Landlord and if
Landlord provides such additional facilities to accommodate Tenant's
installation, Tenant agrees to pay Landlord, on demand, the cost for providing
such additional utility facilities or utility facilities of greater capacity.
Section 12.2. Heating. Ventilating and Air-Conditioning.
Schedule F entitled "Tenant Heating, Ventilating and Air-Conditioning"
specifies the obligations of Landlord and Tenant (other than those obligations
set forth in Article X) regarding the heating, ventilating, and air-conditioning
equipment and system serving the Premises or the Shopping Center Area and the
energy required to operate the heating, ventilating and air-conditioning
equipment serving the Premises. Tenant covenants and agrees to pay to Landlord,
as Additional Rental and in the same manner as Annual Basic Rental is payable,
all charges as the same may be adjusted from time to time, as more particularly
set forth in said Schedule F.
Landlord, in its sole discretion, shall have the right, from time to
time, to alter the heating, ventilating and air-conditioning systems and
equipment serving the Shopping Center, or any part thereof,
24
<PAGE>
and Tenant agrees to execute and deliver to Landlord such documentation as may
be required to effect such alteration, provided, however, that Tenant shall not
be required to bear any portion of the cost of such alteration or to incur any
additional financial obligation as a result of such alteration.
Tenant shall not at any time overburden or exceed the capacity of the
heating, ventilating and air-conditioning systems and equipment serving the
Premises. If Tenant desires any additional equipment or revision of the design
of the existing equipment, or if Landlord deems it necessary, because of
internal loading causing the temperature in the Premises to exceed the
temperature in the Common Areas, to install any additional equipment or revise
the design of the existing equipment, such additional equipment or revised
design shall be subject to Landlord's prior approval of Tenant's plans and
specifications therefor and shall be at Tenant's sole cost and expense. If such
additional equipment or revised design is approved by Landlord and if Landlord
provides such additional equipment or revised design, Tenant agrees to pay
Landlord, on demand, the cost for providing such additional equipment or revised
design.
Section 12.3. Fire Protection Sprinkler System.
Landlord shall provide, install, repair and maintain, or cause to be
provided, installed, repaired and maintained, a fire protection sprinkler system
in the Premises (as more specifically described in Schedule B, if this Lease
includes a Schedule B) which system shall remain the property of Landlord.
Tenant shall pay Landlord, as Additional Rental, for providing such fire
protection sprinkler system, an annual amount determined by multiplying the
Sprinkler Contribution Rate by Tenant's Floor Area, said annual sum to be
payable in twelve (12) equal monthly installments, in advance on the first day
of each calendar month. Any modifications or additions to the sprinkler system,
whether required as a result of the improvements to be made to the Premises or
requested by Tenant after commencement of the Term, shall be made by Landlord at
Tenant's cost and expense (after agreement between Landlord and Tenant on a
price for such work) or, at Landlord's election, shall be made by Tenant (at its
cost and expense), provided Tenant utilizes a licensed contractor approved by
Landlord for such purpose.
Section 12.4. Discontinuances and Interruptions of Utility Services.
Landlord reserves the right to cut off and discontinue, upon notice to
Tenant, furnishing any heating, ventilation, air-conditioning or Other utility
services furnished by Landlord at any time when Tenant has failed to pay when
due any amount (whether as Rental or otherwise) due under this Lease. Landlord
shall not be liable for any damages resulting from or arising out of any such
discontinuance and the same shall not constitute a termination of this Lease or
an eviction of Tenant. Landlord shall not be liable to Tenant in damages or
otherwise (i) if any utility shall become unavailable from any public utility
company, public authority or any other person or entity (including Landlord)
supplying or distributing such utility, or (ii) for any interruption in any
utility service (including, without limitation, any heating, ventilation,
air-conditioning or sprinkler) caused by the making of any necessary repairs or
improvements or by any cause beyond Landlord's reasonable control, and the same
shall not constitute a termination of this Lease or an eviction of Tenant.
ARTICLE XIII
INDEMNITY AND INSURANCE
-----------------------
Section 13.1. Indemnities.
25
<PAGE>
To the extent permitted by law, Tenant shall and does hereby indemnify
Landlord and agrees to save it harmless and, at Landlord's option, defend it
from and against any and all claims, actions, damages, liabilities and expenses
(including attorneys' and other professional fees) judgments, settlement
payments, and fines paid, incurred or suffered by Landlord in connection with
loss of life, personal injury and/or damage to property or the environment
suffered by third parties arising from or out of the occupancy or use by Tenant
of the Premises or any part thereof or any other part of the Shopping Center,
occasioned wholly or in part by any act or omission of Tenant, its officers,
agents, contractors, employees or invitees, or arising, directly or indirectly,
wholly or in part from any conduct, activity, act, omission, or operation
involving the use, handling, generation, treatment, storage, disposal, other
management or Release of any Hazardous Substance in, from or to the Premises,
whether or not Tenant may have acted negligently with respect to such Hazardous
Substance. Tenant's obligations pursuant to this Section shall survive any
termination of this Lease with respect to any act, omission or occurrence which
took place prior to such termination.
To the extent permitted by law, Landlord shall and does hereby
indemnify Tenant and agrees to save it harmless from and against any and all
claims, actions, damages, liabilities and expenses (including attorneys' and
other professional fees) in connection with loss of life, personal injury and/or
damage to property suffered by third parties arising from or out of the use of
any portion of the Common Areas by Landlord, occasioned wholly or in part by any
act or omission of Landlord, its officers, agents, contractors or employees.
Section 13.2. Landlord Not Responsible for Acts of Others.
Landlord shall not be responsible or liable to Tenant, or to those
claiming by, through or under Tenant, for any loss or damage which may be
occasioned by or through the acts or omissions of persons occupying space
adjoining the Premises or any part of the premises adjacent to or connecting
with the Premises or any other part of the Shopping Center, or otherwise, or for
any loss or damage resulting to Tenant, or those claiming by, through or under
Tenant. or its or their property, from the breaking. bursting, stoppage or
leaking of electrical cable and wires, or water, gas. sewer or steam pipes. To
the maximum extent permitted by law, Tenant agrees to use and occupy the
Premises, and to use such other portions of the Shopping Center as Tenant is
herein given the right to use, at Tenant's own risk.
Section 13.3. Tenant's Insurance.
At all times on and after delivery of the Premises to Tenant, Tenant
will carry and maintain, at its expense, a non-deductible:
(a) commercial general liability insurance policy, including
(but not limited to) insurance against assumed or
contractual liability under this Lease with respect to
liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant
thereto, to afford protection with respect to personal
injury, death or property damage of not less than Two
Million Dollars ($2,000,000) per occurrence combined single
limit/Four Million Dollars ($4,000,000) general aggregate
(but not less than $2,000,000 per location aggregate);
(b) all-risks property and casualty insurance policy, including
theft coverage, written at replacement cost value and with
replacement cost endorsement, covering all of Tenant's
personal property in the Premises (including, without
limitation, inventory, trade fixtures, floor coverings,
furniture and other property removable by Tenant under
26
<PAGE>
the provisions of this Lease) and all leasehold improvements
installed in the Premises by or on behalf of Tenant;
(c) comprehensive boiler and machinery equipment policy,
including electrical apparatus, if applicable; and
(d) if and to the extent required by law, worker's compensation
insurance policy or similar insurance in form and amounts
required by law.
Section 13.4. Tenant's Contractor's Insurance.
Tenant shall require any contractor of Tenant performing work on the
Premises to carry and maintain, at no expense to Landlord, a non-deductible:
(a) commercial general liability insurance policy, including
(but not limited to) contractor's liability coverage,
contractual liability coverage, completed operations
coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford
protection, with respect to personal injury, death or
property damage of not less than Three Million Dollars
($3,000,000) per occurrence combined single limit/Five
Million Dollars ($5,000,000) general aggregate (but not less
than $3,000,000 per location aggregate);
(b) comprehensive automobile liability insurance policy with
limits for each occurrence of not less than One Million
Dollars ($1,000,000) with respect to personal injury or
death and Five Hundred Thousand Dollars ($500,000) with
respect to property damage; and
(c) worker's compensation insurance policy or similar insurance
in form and amounts required by law.
Section 13.5. Policy Requirements.
The company or companies writing any insurance which Tenant is required
to carry and maintain or cause to be carried or maintained pursuant to Sections
13.3. and 13.4., as well as the form of such insurance, shall at all times be
subject to Landlord's approval and any such company or companies shall be
licensed to do business in the State in which the Shopping Center is located.
Commercial general liability and all-risks property and casualty insurance
policies evidencing such insurance shall, with respect to commercial general
liability policies, name Landlord and/or its designee(s) as additional insured,
and, with respect to all-risks property and casualty insurance policies, name
Landlord and/or its designee(s) as loss payee, shall be primary and
non-contributory, and shall also contain a provision by which the insurer agrees
that such policy shall not be canceled, materially changed or not renewed
without at least thirty (30) days' advance notice to Landlord, c/o The Rouse
Company, 10275 Little Patuxent Parkway, Columbia, Maryland 21044, Attention:
Risk Manager, by certified mail, return receipt requested, or to such other
party or address as may be designated by Landlord or its designee. Each such
policy, or a certificate thereof, shall be deposited with Landlord by Tenant
promptly upon commencement of Tenant's obligation to procure the same. If Tenant
shall fail to perform any of its obligations under Sections 13.3., 13.4. or
13.5., Landlord may perform the same and the cost of same shall be deemed
Additional Rental and shall be payable upon Landlord's demand.
27
<PAGE>
Section 13.6. Increase in Insurance Premiums.
Tenant will not do or suffer to be done, or keep or suffer to be kept,
anything in, upon or about the Premises which will violate Landlord's policies
of hazard or liability insurance or which will prevent Landlord from procuring
such policies in companies acceptable to Landlord. If anything done, omitted to
be done or suffered by Tenant to be kept in, upon or about the Premises shall
cause the rate of fire or other insurance on the Premises or on other property
of Landlord or of others within the Shopping Center to be increased beyond the
minimum rate from time to time applicable to the Premises or to any such
property for the use or uses made thereof, Tenant will pay, as Additional
Rental, the amount of any such increase upon Landlord's demand.
Section 13.7. Waiver of Right of Recovery.
Except as provided in Section 8.6., neither Landlord nor Tenant shall
be liable to the other or to any insurance company Coy way of subrogation or
otherwise) insuring the other party for any loss or damage to any building,
structure or other tangible property, or any resulting loss of income, or losses
under worker's compensation laws and benefits, even though such loss or damage
might have been occasioned by the negligence of such party, its agents or
employees. The provisions of this Section 13.7. shall not limit the
indemnification for liability to third parties pursuant to Section 13.1.
Section 13.8. Tenant to Pay Proportionate Share of Insurance Costs.
Tenant will pay Landlord, as Additional Rental, a proportionate share
of Landlord's cost of maintaining all insurance with respect to Landlord's
Building (other than the Common Areas) including, without limitation, all-risks
property and casualty insurance and rent insurance. Such insurance may be
carried at the discretion of Landlord in such amounts and companies as Landlord
shall determine.
Tenant's proportionate share of such costs shall be computed by
multiplying Landlord's insurance costs by a fraction, the numerator of which
shall be Tenant's Floor Area and the denominator of which shall be Landlord's
Floor Area. Such proportionate share shall be paid by Tenant in monthly
installments in such amounts as are estimated and billed by Landlord during each
twelve (12) month period commencing and ending on dates designated by Landlord,
each installment being due on the first day of each calendar month. At any time
during any such twelve (12) month period, Landlord may reestimate Tenant's
proportionate share of Landlord's insurance costs and thereafter adjust Tenant's
monthly installments payable during such twelve (12) month period to reflect
more accurately Tenant's proportionate share of such costs. Within one hundred
twenty (120) days (or such additional time thereafter as is reasonable under the
circumstances) after the end of each such twelve (12) month period Landlord
shall deliver to Tenant a statement of such insurance costs for such twelve (12)
month period and the installments paid or payable shall be adjusted between
Landlord and Tenant, and Tenant shall pay Landlord or Landlord shall credit
Tenant's account or (if such adjustment is at the end of the Term Landlord shall
pay Tenant), as the case may be, within fifteen (15) days of receipt of such
statement, such amounts as may be necessary to effect such adjustment. Upon
reasonable notice, Landlord shall make available for Tenant's inspection at
Landlord's office, during normal business hours, Landlord's records relating to
such insurance costs for such preceding twelve (12) month period. Failure of
Landlord to provide the statement called for hereunder within the time
prescribed shall not relieve Tenant of its obligations hereunder.
28
<PAGE>
ARTICLE XIV
DAMAGE AND DESTRUCTION
----------------------
Section 14.1. Landlord's Obligation to Repair and Reconstruct.
If the Premises shall be damaged by fire, the elements, accident or
other casualty (any of such causes being referred to herein as a "Casualty"),
but the Premises shall not be thereby rendered wholly or partially untenantable,
Landlord shall promptly cause such damage to be repaired and there shall be no
abatement of Rental. If, as the result of Casualty, the Premises shall be
rendered wholly or partially untenantable, then, subject to the provisions of
Section 14.2., Landlord shall cause such damage to be repaired and all Rental
(other than any Additional Rental due Landlord by reason of Tenant's failure to
perform any of its obligations hereunder) shall be abated proportionately as to
the portion of the Premises rendered untenantable during the period of such
untenantability, and, in addition, during such period of untenantability, the
Breakpoint shall also be proportionately reduced by an amount equal to the
amount obtained by multiplying the Breakpoint by a fraction, the numerator of
which shall be the length of time the Premises are closed and the denominator of
which shall be the length of the Rental Year(s) in question. All such repairs
shall be made at the expense of Landlord; provided, however, that Landlord shall
not be liable for interruption to Tenant's business or for damage to or
replacement or repair of Tenant's personal property (including, without
limitation, inventory, trade fixtures, floor coverings, furniture and other
property removable by Tenant under the provisions of this Lease) or to any
leasehold improvements installed in the Premises by or on behalf of Tenant, all
of which damage, replacement or repair shall be undertaken and completed by
Tenant promptly.
Section 14.2. Landlord's Option to Terminate Lease.
If the Premises are (a) rendered wholly untenantable, or (b) damaged as
a result of any cause which is not covered by Landlord's insurance or (c)
damaged or destroyed in whole or in part during the last three (3) years of the
Term, or if Landlord's Building is damaged to the extent of fifty percent (50%)
or more of Landlord's Floor Area, then; in any of such events, Landlord may
elect to terminate this Lease by giving to Tenant notice of such election within
ninety (90) days after the occurrence of such event. If such notice is given,
the rights and obligations of the parties shall cease as of the date of such
notice, and Rental (other than any Additional Rental due Landlord by reason of
Tenant's failure to perform any of its obligations hereunder) shall be adjusted
as of the date of such termination.
Section 14.3. Demolition of Landlord's Building.
If Landlord's Building shall be so substantially damaged that it is
reasonably necessary, in Landlord's sole judgment, to demolish same for the
purpose of reconstruction, Landlord may demolish the same, in which event the
Rental shall be abated to the same extent as if the Premises were rendered
untenantable by a Casualty.
Section 14.4. Insurance Proceeds.
If Landlord does not elect to terminate this Lease pursuant to Section
14.2., Landlord shall, subject to the prior rights of any Mortgagee, disburse
and apply any insurance proceeds received by Landlord to the restoration and
rebuilding of Landlord's Building in accordance with Section 14.1. hereof. All
insurance proceeds payable with respect to the Premises (excluding proceeds
payable to Tenant pursuant to Section 13.3.) shall belong to and shall be
payable to Landlord.
29
<PAGE>
ARTICLE XV
CONDEMNATION
------------
Section 15.1. Effect of Taking.
If the whole or any part of the Premises shall be taken under the power
of eminent domain, this Lease shall terminate as to the part so taken on the
date Tenant is required to yield possession thereof to the condemning authority.
Landlord shall make, or cause to be made, such repairs and alterations as may be
necessary in order to restore the part not taken to useful condition and all
Rental (other than any Additional Rental due Landlord by reason of Tenant's
failure to perform any of its obligations hereunder) shall be reduced in the
same proportion as the portion of the floor area of the Premises so taken bears
to Tenant's Floor Area. If the aforementioned taking renders the remainder of
the Premises unsuitable for the Permitted Use, either party may terminate this
Lease as of the date when Tenant is required to yield possession by giving
notice to that effect within thirty (30) days after such date. If twenty percent
(20%) or more of Landlord's Floor Area is taken as aforesaid, or if parking
spaces in the Shopping Center are so taken thereby reducing the number of
parking spaces to less than the number required by law and Landlord does not
deem it reasonably feasible to replace such parking spaces with other parking
spaces on the portion of the Shopping Center not taken, then Landlord may elect
to terminate this Lease as of the date on which possession thereof is required
to be yielded to the condemning authority, by giving notice of such election
within ninety (90) days after such date. If any notice of termination is given
pursuant to this Section, this Lease and the rights and obligations of the
parties hereunder shall cease as of the date of such notice and Rental (other
than any Additional Rental due Landlord by reason of Tenant's failure to perform
any of its obligations hereunder) shall be adjusted as of the date of such
termination.
Section 15.2. Condemnation Awards.
All compensation awarded for any taking of the Premises. Landlord's
Building, the Shopping Center Area, or any interest in any of the same, shall
belong to and be the property of Landlord, Tenant hereby assigning to Landlord
all rights with respect thereto; provided, however, nothing contained herein
shall prevent Tenant from applying for reimbursement from the condemning
authority (if permitted by law) for moving expenses, or the expense of removal
of Tenant's trade fixtures, or loss of Tenant's business good will, but only if
such action shall not reduce the amount of the award or other compensation
otherwise recoverable from the condemning authority by Landlord or the owner of
the fee simple estate in the Shopping Center Area.
ARTICLE XVI
ASSIGNMENTS AND SUBLETTING
--------------------------
Section 16.1. Landlord's Consent Required.
(a) Except as provided in Section 17.4 with respect to assignment of
this Lease following Tenant's bankruptcy, Tenant will not assign this Lease, in
whole or in part, nor sublet all or any part of the Premises, nor license
concessions or lease departments therein, nor pledge or encumber by mortgage or
other instruments its interest in this Lease (each individually and collectively
referred to in this Section as a "transfer") without first obtaining the consent
of Landlord, which consent Landlord may withhold in its sole and absolute
discretion. This prohibition includes, without limitation, any subletting or
assignment which would otherwise occur by operation of law, merger,
consolidation, reorganization, transfer or other change of Tenant's corporate,
partnership or proprietary structure. Any transfer to or by
30
<PAGE>
a receiver or trustee in any federal or state bankruptcy, insolvency, or similar
proceeding shall be subject to, and in accordance with, the provisions of
Section 17.4. Consent by Landlord to any transfer shall not constitute a waiver
of the requirement for such consent to any subsequent transfer.
(b) Subject to the provisions of Section 17.4 respecting assignment of
this Lease following Tenant's bankruptcy and assumption of this Lease by Tenant
or its trustee, it is expressly understood and agreed that Landlord may, in its
sole and absolute discretion, withhold its consent to any transfer of this Lease
or of all or any part of the Premises. The parties recognize that this Lease and
the Premises are unique, and that this Lease and the Premises derive value from
the remainder of Landlord's Building and the Shopping Center Area as a whole,
and that the nature and character of the operations within and management of the
Premises are important to the success of Landlord's Building and the Shopping
Center Area. Accordingly, and without limiting the generality of the foregoing,
Landlord may condition its consent to any transfer upon satisfaction of all or
any of the following conditions:
(i) the net assets of the assignee, licensee, sublessee or other
transferee or permittee (collectively "transferee")
immediately prior to the transfer shall not be less than the
greater of the net assets of Tenant immediately prior to the
transfer or the net assets of Tenant at the time of the
signing of this Lease;
(ii) such transfer shall not adversely affect the quality and type
of business operation which Tenant has conducted theretofore;
(iii) such transferee shall possess qualifications for the Tenant
business substantially equivalent to those of Tenant and shall
have demonstrated recognized experience in successfully
operating such a business, including, without limitation,
experience in successfully operating a similar quality
business in first-class shopping centers;
(iv) such transferee shall continue to operate the business
conducted in the Premises under the same Tenant Trade Name, in
the same manner as Tenant and pursuant to all of the
provisions of this Lease;
(v) such transferee shall assume in writing, in a form acceptable
to Landlord. all of Tenant's obligations hereunder and Tenant
shall provide Landlord with a copy of such assumption/transfer
document;
(vi) Tenant shall pay to Landlord a transfer fee of One Thousand
Dollars ($1,000.00) prior to the effective date of the
transfer in order to reimburse Landlord for all of its
internal costs and expenses incurred with respect to the
transfer, including, without limitation, costs incurred in
connection with the review of financial materials, meetings
with representatives of transferor and/or transferee and
preparation, review, approval and execution of the required
transfer documentation, and, in addition, Tenant shall
reimburse Landlord for any out-of-pocket costs and expenses
incurred with respect to such transfer;
(vii) as of the effective date of the transfer and continuing
throughout the remainder of the Term, the Annual Basic Rental
shall be the greater of (A)
31
<PAGE>
the Annual Basic Rental set forth in Section 1.1.G. hereof, or
(B) the sum of all Annual Basic Rental and all Annual
Percentage Rental payable by Tenant during the twelve calendar
months preceding the transfer;
(viii) Tenant to which the Premises were initially leased shall
continue to remain liable under this Lease for the performance
of all terms, including, but not limited to, payment of Rental
due under this Lease;
(ix) Tenant's guarantor, if any; shall continue to remain liable
under the terms of the guaranty of this Lease and, if Landlord
deems it necessary, such guarantor shall execute such
documents necessary to insure the continuation of its
guaranty;
(x) Landlord shall receive upon execution of its consent the full
unamortized amount of any construction or other allowances
given to the original Tenant under this Lease, any due but
unpaid Rental, and an amount equal to fifteen percent (15 %)
of any and all consideration paid or agreed to be paid,
directly or indirectly, to Tenant for such transfer or for the
sale of Tenant's business in connection with which any such
transfer is made; and
(xi) each of Landlord's Mortgagees shall have consented in writing
to such transfer.
Section 16.2. Transfer of Corporate Shares.
If Tenant is a corporation (other than a corporation the outstanding
voting stock of which is listed on a "national securities exchange", as defined
in the Securities Exchange Act of 1934) and if, at any time after execution of
this Lease, any part or all of the corporate shares shall be transferred by
sale, assignment, bequest, inheritance, operation of law or other disposition
(including, but not limited to, such a transfer to or by a receiver or trustee
in federal or state bankruptcy, insolvency, or other proceedings) so as to
result in a change in the present control of said corporation by the person(s)
now owning a majority of said corporate shares, Tenant shall give Landlord
notice of such event within fifteen (15) days of the date of such transfer. If
any such transfer is made (and regardless of whether Tenant has given notice of
same), Landlord may elect to terminate this Lease at any time thereafter by
giving Tenant notice of such election, in which event this Lease and the rights
and obligations of the parties hereunder shall cease as of a date set forth in
such notice which date shall not be less than sixty (60) days after the date of
such notice. In the event of any such-termination, all Rental (other than any
Additional Rental due Landlord by reason of Tenant's failure to perform any of
its obligations hereunder) shall be adjusted as of the date of such termination.
Section 16.3. Transfer of Partnership Interests.
If Tenant is a general or limited partnership and if at any time after
execution of this Lease any part or all of the interests in the capital or
profits of such partnership or any voting or other interests therein shall be
transferred by sale, assignment, bequest, inheritance, operation of law or other
disposition (including, but not limited to, such a transfer to or by a receiver
or trustee in federal or state bankruptcy, insolvency or other proceedings, and
also including, but not limited to, any adjustment in such partnership
interests) so as to result in a change in the present control of said
partnership by the person or persons now having control of same, Tenant shall
give Landlord notice of such event within
32
<PAGE>
fifteen (15) days of the date of such transfer. If any such transfer is made
(and regardless of whether Tenant has given notice of same), Landlord may elect
to terminate this Lease at any time thereafter by giving Tenant notice of such
election, in which event this Lease and the rights and obligations of the
parties hereunder shall cease as of a date set forth in such notice which date
shall be not less than sixty (60) days after the date of such notice. In the
event of any such termination, all Rental (other than any Additional Rental due
Landlord by reason of Tenant's failure to perform any of its obligations
hereunder) shall be adjusted as of the date of such termination.
Section 16.4. Acceptance of Rent from Transferee.
The acceptance by Landlord of the payment of Rental following any
assignment or other transfer prohibited by this Article shall not be deemed to
be a consent by Landlord to any such assignment or other transfer nor shall the
same be deemed to be a waiver of any right or remedy of Landlord hereunder.
Section 16.5. Additional Provisions Respecting Transfers.
Without limiting Landlord's right to withhold its consent to any
transfer by Tenant, and regardless of whether Landlord shall have consented to
any such transfer, neither Tenant nor any other person having an interest in the
possession, me or occupancy of the Premises or any part thereof shall enter into
any lease, sublease, license, concession, assignment or other transfer or
agreement for possession, use or occupancy of all or any portion of the Premises
which provides for rental or other payment for such use, occupancy or
utilization based, in whole or in part, on the net income or profits derived by
any person or entity from the space so leased, used or occupied, and any such
purported lease, sublease, license, concession, assignment or other transfer or
agreement shall be absolutely void and ineffective as a conveyance of any right
or interest in the possession, use or occupancy of all or any part of the
Premises. There shall be no deduction from the rental payable under any sublease
or other transfer nor from the amount thereof passed on to any person or entity,
for any expenses or costs related in any way to the subleasing or transfer of
such space.
If Tenant shall make or suffer any such transfer without first
obtaining any consent of Landlord required by Section 16.1, any and all amounts
received as a result of such transfer shall be the property of Landlord to the
extent the same (determined on a square foot basis) is greater than the Annual
Basic Rental (on a square foot basis) payable under this Lease, it being the
parties' intent that any profit resulting from such transfer shall belong to
Landlord, but the same shall not be deemed to be a consent by Landlord to any
such transfer or a waiver of any right or remedy of Landlord hereunder.
ARTICLE XVII
DEFAULT
-------
Section 17.1. "Event of Default" Defined.
Any one or more of the following events shall constitute an "Event of
Default":
(a) The sale of Tenant's interest in the Premises under
attachment, execution or similar legal process or, if Tenant
is adjudicated a bankrupt or insolvent under any state
bankruptcy or insolvency law or an order for relief is entered
against Tenant under the Federal Bankruptcy Code and such
adjudication or order is not vacated within ten (10) days.
(b) The commencement of a case under any chapter of the Federal
Bankruptcy Code by or against Tenant or any guarantor of
Tenant's obligations hereunder, or the filing of a
33
<PAGE>
voluntary or involuntary petition proposing the adjudication
of Tenant or any such guarantor as bankrupt or insolvent, or
the reorganization of Tenant or any such guarantor, or an
arrangement by Tenant or any such guarantor with its
creditors, unless such petition is filed or case commenced by
a party other than Tenant or any such guarantor and is
withdrawn or dismissed within thirty (30) days after the date
of its filing.
(c) The admission in writing by Tenant or any such guarantor of
its inability to pay its debts when due.
(d) The appointment of a receiver or trustee for the business or
property of Tenant or any such guarantor, unless such
appointment shall be vacated within ten (10) days of its
entry.
(e) The making by Tenant or any such guarantor of an assignment
for the benefit of its creditors, or if in any other manner
Tenant's interest in this Lease shall pass to another by
operation of law.
(f) The failure of Tenant to pay any Rental or other sum of money
within seven (7) days after the same is due hereunder.
(g) Default by Tenant in the performance or observance of any
covenant or agreement of this Lease (other than a default
involving the payment of money), which default is not cured
within ten (10) days after the giving of notice thereof by
Landlord, unless such default is of such nature that it cannot
be cured within such ten (10) day period, in which case no
Event of Default shall occur so long
(h) as Tenant shall commence the curing of the default within such
ten (10) day period and shall thereafter diligently prosecute
the curing of same: provided, however, if Tenant shall default
in the performance of any such covenant or agreement of this
Lease two (2) or more times in any twelve (12) month period,
then notwithstanding that each of such defaults shall have
been cured by Tenant, any further similar default shall be
deemed an Event of Default without the ability for cure.
(i) The vacation or abandonment of the Premises by Tenant at any
time following delivery of possession of the Premises to
Tenant.
(j) The occurrence of any other event described as constituting an
"Event of Default" elsewhere in this Lease.
Section 17.2. Remedies.
Upon the occurrence of an Event of Default, Landlord, without notice to
Tenant in any instance (except where expressly provided for below or by
applicable law) may do any one or more of the following:
(a) With or without judicial process, enter the Premises and take
possession of any and all goods, inventory, equipment,
fixtures and all other personal property of Tenant, which is
or may be put into the Premises during the Term, whether
exempt or not from sale under execution or attachment (it
being agreed that said property shall at all times be bound
34
<PAGE>
with a lien in favor of Landlord and shall be chargeable for
all Rental and for the fulfillment of the other covenants and
agreements herein contained), and Landlord may sell all or any
part thereof at public or private sale. Tenant agrees that
five (5) days prior notice of any public or private sale shall
constitute reasonable notice. The proceeds of any such sale
shall be applied first, to the payment of all costs and
expenses of conducting the sale or caring for or storing said
property (including reasonable attorneys' fees); second,
toward the payment of any indebtedness, including (without
limitation) indebtedness for Rental, which may be or may
become due from Tenant to Landlord; and third, to pay Tenant,
on demand, any surplus remaining after all indebtedness of
Tenant to Landlord has been fully paid;
(b) Perform, on behalf and at the expense of Tenant, any
obligation of Tenant under this Lease which Tenant has failed
to perform and of which Landlord shall have given Tenant
notice, the cost of which performance by Landlord, together
with interest thereon at the Default Rate from the date of
such expenditure, shall be deemed Additional Rental and shall
be payable by Tenant to Landlord upon demand. Notwithstanding
the provisions of this clause (b) and regardless of whether an
Event of Default shall have occurred, Landlord may exercise
the remedy described in this clause (b) without any notice to
Tenant if Landlord, in its good faith judgment, believes it
would be materially injured by failure to take rapid action or
if the unperformed obligation of Tenant constitutes an
emergency;
(c) Elect to terminate this Lease and the tenancy created hereby
by giving notice of such election to Tenant, and reenter the
Premises, without the necessity of legal proceedings, and
remove Tenant and all other persons and property from the
Premises, and may store such property in a public warehouse or
elsewhere at the cost of and for the account of Tenant without
resort to legal process and without Landlord being deemed
guilty of trespass or becoming liable for any loss or damage
occasioned thereby; or
(d) Exercise any other legal or .equitable right or remedy which
it may have.
Any costs and expenses incurred by Landlord (including,
without limitation, reasonable attorneys' fees) in enforcing any of its
rights or remedies under this Lease shall be deemed to be Additional
Rental and shall be repaid to Landlord by Tenant upon demand.
Section 17.3. Damages.
If this Lease is terminated by Landlord pursuant to Section
17.2., Tenant nevertheless shall remain liable for (a) any Rental and
damages which may be due or sustained prior to such termination, all
reasonable costs, fees and expenses including, but not limited to,
reasonable attorneys' fees, costs and expenses incurred by Landlord in
pursuit of its remedies hereunder, or in renting the Premises to others
from time to time (all such Rental, damages, costs, fees and expenses
being referred to herein as "Termination Damages") and (b) additional
damages (the "Liquidated Damages"), which, at the election of Landlord,
shall be either:
(i) an amount equal to the Rental which, but for termination of
this Lease, would have become due during the remainder of the
Term, less the amount of Rental, if any, which Landlord shall
receive during such period from others to whom the Premises
may be rented (other than any Additional
35
<PAGE>
Rental received by Landlord as a result of any failure of such
other person to perform any of its obligations to Landlord),
in which case such Liquidated Damages shall be computed and
payable in monthly installments, in advance, on the first day
of each calendar month following termination of the Lease and
continuing until the date on which the Term would have expired
but for such termination, and any suit or action brought to
collect any such Liquidated Damages for any month shall not in
any manner prejudice the right of Landlord to collect any
Liquidated Damages for any subsequent month by a similar
proceeding; or
(ii) an amount equal to the present worth (as of the date of such
termination) of Rental which, but for termination of this
Lease, would have become due during the remainder of the Term,
less the fair rental value of the Premises, as determined by
an independent real estate appraiser named by Landlord, in
which case such Liquidated Damages shall be payable to
Landlord in one lump sum on demand and shall bear interest at
the Default Rate until paid. For purposes of this clause (ii),
"present worth" shall be computed by discounting such amount
to present worth at a discount rate equal to one percentage
point above the discount rate then in effect at the Federal
Reserve Bank nearest to the location of the Shopping Center.
If such termination shall take place after the expiration of two or
more Rental Years then, for purposes of computing the Liquidated Damages, the
Annual Percentage Rental payable with respect to each Rental Year following
termination (including the Rental Year in which such termination shall take
place) shall be conclusively presumed to be equal to the average Annual
Percentage Rental payable with respect to each complete Rental Year preceding
termination. If such termination shall take place before the expiration of two
Rental Years, then, for purposes of computing the Liquidated Damages, the Annual
Percentage Rental payable with respect to each Rental Year following termination
(including the Rental Year in which such termination shall take place) shall be
conclusively presumed to be equal to twelve (12) times the average monthly
payment of Annual Percentage Rental due prior to such termination, or if no
Annual Percentage Rental shall have been payable during such period, then the
Annual Percentage Rental for each year of the unexpired Term shall be
conclusively presumed to be a sum equal to twenty-five percent (25%) of the
Annual Basic Rental due and payable during such unexpired Term. Termination
Damages shall be due and payable immediately upon demand by Landlord following
any termination of this Lease pursuant to Section 17.2. Liquidated Damages shall
be due and payable at the times set forth herein.
If this Lease is terminated pursuant to Section 17,2., Landlord may
relet the Premises or any part thereof, alone or together with other premises,
for such term or terms (which may be greater or less than the period which
otherwise would have constituted the balance of the Term) and on such terms and
conditions (which may include concessions or free rent and alterations of the
Premises) as Landlord, in its sole discretion, may determine, but Landlord shall
not be liable for, nor shall Tenant's obligations hereunder be diminished by
reason of, any failure by Landlord to relet the Premises or any failure by
Landlord to collect any rent due upon such reletting.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain, in proceedings for the termination of this
Lease by reason of bankruptcy or insolvency, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or not the
amount be greater,
36
<PAGE>
equal to, or less than the amount of the loss or damages referred to above. The
failure or refusal of Landlord to relet the Premises or any part or parts
thereof shall not release or affect Tenant's liability for damages.
Section 17.4. Remedies in Event of Bankruptcy or Other Proceeding.
(a) Anything contained herein to the contrary notwithstanding, if
termination of this Lease shall be stayed by order of any court having
jurisdiction over any proceeding described in paragraph (b) of Section 17.1., or
by federal or state statute, then, following the expiration of any such stay, or
if Tenant or Tenant as debtor-in-possession or the trustee appointed in any such
proceeding (being collectively referred to as "Tenant" only for the purposes of
this Section 17.4.) shall fail to assume Tenant's obligations under this Lease
within the period prescribed therefor by law or within fifteen (15) days after
entry of the order for relief or as may be allowed by the court, or if Tenant
shall fail to provide adequate protection of Landlord's right, title and
interest in and to the Premises or adequate assurance of the complete and
continuous future performance of Tenant's obligations under this Lease,
Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election, to
terminate this Lease on fifteen (15) days' notice to Tenant and upon the
expiration of said fifteen (15) day period this Lease shall cease and expire as
aforesaid and Tenant shall immediately quit and surrender the Premises as
aforesaid. Upon the termination of this Lease as provided above, Landlord,
without notice, may re-enter and repossess the Premises using such force for
that purpose as may be necessary without being liable to indictment, prosecution
or damages therefor and may dispossess Tenant by sugary proceedings or
otherwise.
(b) For the purposes of the preceding paragraph (a), adequate
protection of Landlord's right. title and interest in and to the Premises, and
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease, shall include, without limitation. the following
requirements:
(i) that Tenant comply with all of its obligations under this
Lease;
(ii) that Tenant pay to Landlord, on the first day of each month
occurring subsequent to the entry of such order, or the
effective date of such stay, a sum equal to the amount by
which the Premises diminished in value during the immediately
preceding monthly period, but, in no event, an amount which is
less than the aggregate Rental payable for such monthly
period;
(iii) that Tenant continue to use the Premises in the manner
originally required by this Lease;
(iv) that Landlord be permitted to supervise the performance of
Tenant's obligations under this Lease;
(v) that Tenant pay to Landlord within fifteen (15) days after
entry of such order or the effective date of such stay, as
partial adequate protection against future diminution in value
of the Premises and adequate assurance of the complete and
continuous future performance of Tenant's obligations under
this Lease, an additional security deposit in an amount
acceptable to Landlord;
37
<PAGE>
(vi) that Tenant has and will continue to have unencumbered assets
after the payment of all secured obligations and
administrative expenses to assure Landlord that sufficient
funds will be available to fulfill the obligations of Tenant
under this Lease;
(vii) that if Tenant assumes this Lease and proposes to assign the
same (pursuant to Title 11 U.S.C.s.365, or as the same may be
amended) to any person who shall have made a bona fide offer
to accept an assignment of this Lease on terms acceptable to
such court having competent jurisdiction over Tenant's estate,
then notice of such proposed assignment, setting forth (x) the
name and address of such person, (y) all of the terms and
conditions of such offer, and (z) the adequate assurance to be
provided Landlord to assure such person's future performance
under this Lease, including, without limitation, the
assurances referred to in Title I 1 U.S.C.s.365(b)(3), as it
may be amended, shall be given to Landlord by Tenant no later
than fifteen (15) days after receipt by Tenant of such offer,
but in any event no later than thirty (30) days prior to the
date that Tenant shall make application to such court for
authority and approval to enter into such assignment and
assumption, and Landlord shall thereupon have the prior right
and option, to be exercised by notice to Tenant given at any
time prior to the effective date of such proposed assignment,
to accept, or to cause Landlord's designee to accept, an
assignment of this Lease upon the same terms and conditions
and for the same consideration. if any, as the bona fide offer
made by such person less any brokerage commissions which may
be payable out of the consideration to be paid by such person
for the assignment of this Lease; and
(viii) that if Tenant assumes this Lease and proposes to assign the
same, and Landlord does not exercise its option pursuant to
paragraph (vii) of this Section 17.4, Tenant hereby agrees
that:
(A) such assignee shall have a net worth not less than
the net worth of Tenant as of the Commencement Date,
or such Tenant's obligations under this Lease shall
be unconditionally guaranteed by a person having a
net worth equal to Tenant's net worth as of the
Commencement Date;
(B) such assignee shall not use the Premises except
subject to all the restrictions contained in this
Lease;
(C) such assignee shall assume in writing all of the
terms, covenants and conditions of this Lease
including, without limitation, all of such terms,
covenants and conditions respecting the Permitted Use
and payment of Rental, and such assignee shall
provide Landlord with assurances satisfactory to
Landlord that it has the experience in operating
stores having the same or substantially similar uses
as the Permitted Use, in first class shopping
centers, sufficient to enable it so to comply with
the terms, covenants and conditions of this Lease and
successfully operate the Premises for the Permitted
Use;
38
<PAGE>
(D) such assignee shall indemnify Landlord against, and
pay to Landlord the amount of, any payments which
Landlord may be obligated to make to any Mortgagee by
virtue of such assignment;
(E) such assignee shall pay to Landlord an amount equal
to the unamortized portion of any construction
allowance made to Tenant; and
(F) if such assignee makes any payment to Tenant, or for
Tenant's account, for the right to assume this Lease
(including, without limitation, any lump sum payment,
installment payment or payment in the nature of rent
over and above the Rental payable under this Lease),
Tenant shall pay over to Landlord one-half of any
such payment, less any amount paid to Landlord
pursuant to clause (E) above on account of any
construction allowance.
ARTICLE XVIII
SUBORDINATION AND ATTORNMENT
----------------------------
Section 18.1. Subordination.
Unless a Mortgagee (as hereinafter defined) shall otherwise elect as
provided in Section 18,2.. Tenant's rights under this Lease are and shall remain
subject and subordinate to the operation and effect of
(a) any lease of land only or of land and buildings in a
sale-leaseback or lease-subleaseback transaction involving the
Premises or Landlord's interest therein, or
(b) any mortgage, deed of trust or other security instrument
constituting a lien upon the Premises or Landlord's interest
therein,
whether the same shall be in existence at the date hereof or created hereafter.
any such lease, mortgage, deed of trust or other security instrument being
referred to herein as a "Mortgage", and the party or parties having the benefit
of the same, whether as lessor, mortgagee, trustee or noteholder, being referred
to herein as a "Mortgagee". Tenant's acknowledgment and agreement of
subordination provided for in this Section are self-operative and no further
instrument of subordination shall be required; however, Tenant shall execute
such further assurances thereof as shall be requisite or as may be requested
from time to time by Landlord or any Mortgagee.
Section 18.2. Mortgagee's Unilateral Subordination.
If a Mortgagee shall so elect by notice to Tenant or by the recording
of a unilateral declaration of subordination, this Lease and Tenant's rights
hereunder shall be superior and prior in right to the Mortgage of which such
Mortgagee has the benefit, with the same force and effect as if this Lease had
been executed, delivered and recorded prior to the execution, delivery and
recording of such Mortgage, subject, nevertheless, to such conditions as may be
set forth in any such notice or declaration.
Section 18.3. Attornment.
If any person shall succeed to all or part of Landlord's interest in
the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease or otherwise, and if so requested or
required by such successor in interest, Tenant shall attorn to such successor in
interest
39
<PAGE>
and shall execute such agreement in confirmation of such attornment as such
successor in interest shall reasonably request.
ARTICLE XIX
NOTICES
-------
Section 19.1. Sending of Notices.
Any notice, request, demand, approval or consent given or required to
be given under this Lease shall be in writing and shall be deemed to have been
given as follows:
(i) if intended for Landlord, on the third day following the day
on which the same shall have been mailed by United States
registered or certified mail, or express mail, return receipt
requested, with all postage charges prepaid, addressed to
Landlord, Attention: General Counsel, c/o The Rouse Company
Building, Columbia, Maryland 21044, with a copy to Landlord's
management office in the Shopping Center except that payment
of Rental and sales reports shall be delivered to Landlord's
management office in the Shopping Center; and
(ii) if intended for Tenant, upon the earlier to occur of the
following:
(A) the third day following the day on which the same
shall have been mailed by United States registered or
certified mail or express mail, return receipt
requested, with all postal charges prepaid, addressed
to Tenant at the Tenant Notice Address, or
(B) actual receipt at the Tenant Notice Address, and in
the event more than one copy of such notice shall
have been sent or delivered to Tenant, the first
actually received shall control for the purposes of
this clause (b).
Either party may, at any time, change its address for the above
purposes by sending a notice to the other party stating the change and
setting forth the new address.
Section 19.2. Notice to Mortgagees.
If any Mortgagee shall notify Tenant that it is the holder of a
Mortgage affecting the Premises, no notice, request or demand thereafter sent by
Tenant to Landlord shall be effective unless and until a copy of the same shall
also be sent to such Mortgagee in the manner prescribed in Section 19.1. and to
such address as such Mortgagee shall designate.
ARTICLE XX
MISCELLANEOUS
-------------
Section 20.1. Radius Restriction.
Tenant agrees that Tenant (and if Tenant is a corporation or
partnership, its officers, directors, stockholders, any affiliates or partners)
shall not, directly or indirectly, operate, manage or have any interest in any
other store or business (unless in operation on the date of this Lease) which is
similar to or in competition with the Permitted Use on the Commencement Date of
this Lease and for the Term of this
40
<PAGE>
Lease within the Restriction Area. Without limiting any of Landlord's remedies
under this Lease, in the event Tenant operates, manages or has any interest in a
store or business violating the provisions of this Section, then, at Landlord's
option, Landlord may by notice to Tenant require Tenant to include the gross
sales of such other store or business in the Gross Sales of the Premises for the
purposes of calculating Annual Percentage Rental under this Lease.
Section 20.2. Estoppel Certificates.
At any time and from time to time, within ten (10) days after Landlord
shall request the same, Tenant will execute, acknowledge and deliver to Landlord
and to such Mortgagee or other party as may be designated by Landlord, a
certificate in an acceptable form with respect to the matters required by such
party and such other matters relating to this Lease or the status of performance
of obligations of the parties hereunder as may be reasonably requested by
Landlord. If Tenant fails to provide such certificate within ten (10) days after
request by Landlord, Tenant shall be deemed to have approved the contents of any
such certificate submitted to Tenant by Landlord and Landlord is hereby
authorized to so certify.
Section 20.3. Inspections and Access by Landlord.
Tenant will permit Landlord, its agents, employees and contractors to
enter all parts of the Premises during Tenant's business hours to inspect the
same and to enforce or carry out any provision of this Lease, including, without
limitation, any access necessary for the making of any repairs which are
Landlord's obligation hereunder; provided, however, that, in the event of an
emergency, Landlord may enter the Premises for such purposes at any time upon
such notice to Tenant, if any, as shall be feasible under the circumstances.
Section 20.4. Memorandum of Lease.
Neither this Lease nor a short form or memorandum thereof shall be
recorded in the public records.
Section 20.5. Remedies Cumulative.
No reference to any specific right or remedy shall preclude Landlord
from exercising any other right or from having any other remedy or from
maintaining any action to which it may otherwise be entitled at law or in
equity. No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof, or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of any
such breach, agreement, term, covenant or condition. No waiver by Landlord of
any breach by Tenant under this Lease or of any breach by any other tenant under
any other lease of any portion of the Shopping Center shall affect or alter this
Lease in any way whatsoever.
Section 20.6. Successors and Assigns.
This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord, its successors and
assigns, and shall be binding upon Tenant, its successors and assigns and shall
inure to the benefit of Tenant and only such assigns and subtenants of Tenant to
whom the assignment of this Lease or subletting of the Premises by Tenant has
been consented to by Landlord as provided in this Lease. Upon any sale or other
transfer by Landlord of its interest in the Premises and in this Lease, and the
assumption by Landlord's transferee of the obligations of Landlord hereunder,
Landlord shall be relieved of all obligations under this Lease accruing
thereafter.
41
<PAGE>
Section 20.7. Compliance with Laws and Regulations.
Tenant, at its sole cost and expense, shall comply, and shall cause the
Premises to comply with (a) all federal, state, regional, county, municipal and
other governmental statutes, laws, rules, orders, regulations and ordinances
affecting any part of the Premises, or the use thereof, including, but not
limited to, those which require the making of any structural, unforeseen or
extraordinary changes, whether or not any such statutes, laws, rules, orders,
regulations or ordinances which may be hereafter enacted involve a change of
policy on the part of the governmental body enacting the same, and (b) all
rules, orders and regulations of the National Fire Protection Association,
Landlord's casualty insurer(s) and other applicable insurance rating
organizations or other bodies exercising similar functions in connection with
the prevention of fire or the correction of hazardous conditions which apply to
the Premises.
Section 20.8. Captions and Headings.
The table of contents and the Article and Section captions and headings
are for convenience of reference only and in no way shall be used to construe or
modify the provisions set forth in this Lease.
Section 20.9. Joint and Several Liability.
If two or more individuals, corporations, partnerships or other
business associations (or any combination of two or more thereof) shall sign
this Lease as Tenant, the liability of each such individual, corporation,
partnership or other business association to pay rent and perform all other
obligations hereunder shall be deemed to be joint and several and all notices,
payments and agreements given or made by, with or to any one of such
individuals, corporations, partnerships or other business associations shall be
deemed to have been given or made by, with or to all of them. In like manner, if
Tenant shall be a partnership or other business association, the members of
which are, by virtue of statute or federal law, subject to personal liability,
the liability of each such member shall be joint and several.
Section 20.10. Broker's Commission.
Each of the parties represents and warrants that there are no claims
for brokerage commissions or finders' fees in connection with the execution of
this Lease, and agrees to indemnify the other 'against, and hold it harmless
from, all liability arising from any such claim including, without limitation,
the cost of counsel fees in connection therewith.
Section 20.11. No Discrimination.
It is Landlord's policy to comply with all applicable state and federal
laws prohibiting discrimination in employment based on race, age, color, sex,
national origin, disability, religion, or other protected classification. It is
further intended that the Shopping Center shall be developed and operated so
that all prospective tenants thereof, and all customers, employees, licensees
and invitees of all tenants shall have equal opportunity to obtain all the
goods, services, accommodations, advantages, facilities and privileges of the
Shopping Center without discrimination because of race, age, color, sex,
national origin, disability. or religion. To that end, Tenant shall not
discriminate in the conduct and operation of its business in the Premises
against any person or group of persons because of the race, age, color, sex,
religion. national origin or other protected classification of such person or
group of persons.
42
<PAGE>
Section 20.12. No Joint Venture.
Any intention to create a joint venture or partnership relation between
the parties hereto is hereby expressly disclaimed. The provisions of this Lease
in regard to the payment by Tenant and the acceptance by Landlord of a
percentage of Gross Sales of Tenant and others is a reservation for rent for the
use of the Premises.
Section 20.13. No Option.
The submission of this Lease for examination does not constitute a
reservation of or option for the Premises, and this Lease shall become effective
only upon execution and delivery thereof by both parties. Execution by signature
of an authorized officer of Landlord or any corporate entity acting on behalf of
Landlord shall be effective only upon attestation thereof and the affixation of
the seal of such corporation by a corporate Secretary or Assistant Secretary of
Landlord.
Section 20.14. No Modification.
This writing is intended by the parties as a final expression of their
agreement and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein. No course of prior dealings between the parties or their
officers, employees, agents or affiliates shall be relevant or admissible to
supplement, explain, or vary any of the terms of this Lease. Acceptance of, or
acquiescence in, a course of performance rendered under this or any prior
agreement between the parties or their affiliates shall not be relevant or
admissible to determine the meaning of any of the terms of this Lease. No
representations, understandings, or agreements have been made or relied upon in
the making of this Lease other than those specifically set forth herein. This
Lease can be modified only by a writing signed by the party against whom the
modification is enforceable.
Section 20.15. Severability.
If any portion of any term or provision of this Lease, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
Section 20.16. Third Party Beneficiary.
Nothing contained in this Lease shall be construed so as to confer upon
any other party the rights of a third party beneficiary except rights contained
herein for the benefit of a Mortgagee.
Section 20.17. Corporate Tenants.
If Tenant is a corporation, the persons executing this Lease on behalf
of Tenant hereby covenant and warrant that: Tenant is a duly constituted
corporation qualified to do business in the State in which the Shopping Center
is located; all Tenant's franchises and corporate taxes have been paid to date;
all future forms, reports, fees and other documents necessary for Tenant to
comply with applicable laws will be flied by Tenant when due; and such persons
are duly authorized by the board of directors of such corporation to execute and
deliver this Lease on behalf of the corporation.
43
<PAGE>
Section 20.18. Applicable Law.
This Lease and the rights and obligations of the parties hereunder
shall be construed in accordance with the laws of the State in which the
Shopping Center is located.
Section 20.19. Performance of Landlord's Obligations by Mortgagee.
Tenant shall accept performance of any of Landlord's obligations
hereunder by any Mortgagee of Landlord.
Section 20.20. Waiver of Certain Rights.
Landlord and Tenant hereby mutually waive any and all rights which
either may have to request a jury trial in any action, proceeding or
counterclaim (except for those involving personal injury or property damage)
arising out of this Lease or Tenant's occupancy of or right to occupy the
Premises.
Tenant further agrees that in the event Landlord commences any summary
proceeding for nonpayment of rent or possession of the Premises, Tenant will not
interpose and hereby waives all right to interpose any counterclaim of whatever
nature in any such proceeding. Tenant further waives any right to remove said
summary proceeding to any other court or to consolidate said summary proceeding
with any other action, whether brought prior or subsequent to the summary
proceeding.
Section 20.21. Limitation on Right of Recovery Against Landlord.
Tenant acknowledges and agrees that the liability of Landlord under
this Lease shall be limited to its interest in the Shopping Center Area and any
judgments rendered against Landlord shall be satisfied solely out of the
proceeds of sale of its interest in the Shopping Center Area. No personal
judgment shall lie against Landlord upon extinguishment of its rights in the
Shopping Center Area and any judgment so rendered shall not give rise to any
right of execution or levy against Landlord's assets. The provisions hereof
shall inure to Landlord's successors and assigns including any Mortgagee. The
foregoing provisions are not intended to relieve Landlord from the performance
of any of Landlord's obligations under this Lease, but only to limit the
personal liability of Landlord in case of recovery of a judgment against
Landlord; nor shall the foregoing be deemed to limit Tenant's rights to obtain
injunctive relief or specific performance or to avail itself of any other right
or remedy which may be awarded Tenant by law or under this Lease.
If Tenant claims or asserts that Landlord has violated or failed to
perform a covenant of Landlord not to unreasonably withhold or delay Landlord's
consent or approval, Tenant's sole remedy shall be an action for specific
performance, declaratory judgment or injunction and in no event shall Tenant be
entitled to any money damages for a breach of such covenant and in no event
shall Tenant claim or assert any claim for any money damages in any action or by
way of set off, defense or counterclaim and Tenant hereby specifically waives
the right to any money damages or other remedies.
Section 20.22. Survival.
All representations, warranties, covenants, conditions and agreements
contained herein which either are expressed as surviving the expiration or
termination of this Lease or, by their nature, are to be performed or observed,
in whole or in part, after the termination or expiration of this Lease,
including (without limitation) the obligations of Tenant pursuant to Sections
8.6 and 13.1, shall survive the termination or expiration of this Lease.
44
<PAGE>
Section 20.23. Relocation of Premises.
In the event of an expansion, renovation or remerchandising of the
Shopping Center in the vicinity of the Premises, Landlord may elect, by giving
notice of such election to Tenant, to require Tenant to surrender possession of
all or such portion of the Premises and for such period of time (including the
remainder of the Term) as Landlord, in its sole discretion, shall deem to be
required for such purposes. Such election shall be exercised not more than once
during the Term, except that if any such notice of election shall be withdrawn
by Landlord, the same shall be deemed not to have been given. Landlord's notice
of the exercise of such election shall designate (i) the portion of the Premises
required for such purposes, (ii) the period of time during which such surrender
shall be required, and (iii) the date by which possession of same shall be
surrendered by Tenant, which date shall not be earlier than ninety (90) days
after the date on which such notice is given.
If Tenant shall be required to surrender possession of all or a portion
of the Premises for a period of time which is less than the remainder of the
Term, Rental shall abate as to such portion or all of the Premises required to
be surrendered, such abatement to be effective beginning as of the date Tenant
is required to surrender such possession and continuing until the date on which
Landlord redelivers possession to Tenant. For purposes of determining the extent
of such abatement of Rental, Tenant's Floor Area hereunder shall be deemed to be
reduced during the abatement period by the number of square feet contained in
the portion of the Premises of which possession is required to be surrendered.
If Tenant shall be required to surrender possession of a portion of the
Premises for the entire remainder of the Term. this Lease shall terminate as to
such portion as of the date on which Tenant is required to surrender possession
thereof to Landlord and all Rental shall be proportionately reduced. For
purposes of determining the extent of such reduction of Rental, Tenant's Floor
Area hereunder shall be deemed to be reduced as of the date of such termination
by the number of square feet contained in the portion of the Premises of which
possession is required to be surrendered.
If Tenant shall be required to surrender possession of a portion of the
Premises, Landlord shall (a) provide any permanent or temporary barriers
required by the nature of Landlord's use of such portion, which barriers shall
be constructed in such a manner so as to not materially interfere with Tenant's
business operations in the Premises; and (b) make such alterations as may be
necessary in order to restore the remainder of the Premises to useful condition.
If Tenant shall be required to surrender possession of a portion of the
Premises and the remainder of the Premises shall be rendered unsuitable for the
Permitted Use, or if Tenant shall be required to surrender possession of the
entire Premises, Landlord shall have the further right and option to cause
Tenant to relocate its business, within ninety (90) days after notice to do so,
to another location within the Shopping Center Area, comparable in size and
location to the Premises, mutually agreed upon by Landlord and Tenant. Within
sixty (60) days after any such notice shall be given, Landlord and Tenant shall
execute and deliver an amendment to this Lease which shall substitute a
description of the premises to which Tenant is to be relocated for the
description of the Premises contained herein and shall modify Tenant's Floor
Area accordingly; otherwise all of the terms and conditions of this Lease shall
be applicable to Tenant's occupancy of the new premises.
If Landlord and Tenant cannot agree on a new location within such sixty
(60) days after notice of the exercise by Landlord of its relocation option
described in the preceding paragraph, then Landlord may elect to withdraw its
notice requiring Tenant to relocate its business, in which event Tenant shall
remain in possession of the Premises and this Lease shall remain in full force
and effect. If Landlord
45
<PAGE>
shall not elect to withdraw its notice requiring Tenant to relocate its
business, the Term shall terminate on the ninetieth (90th) day after such
notice, in which event Landlord agrees to pay to Tenant, provided Tenant is not
in default under this Lease, and provided Tenant shall have furnished Landlord
with the statement referred to in the last sentence of this paragraph, an amount
equivalent to the unamortized value of Tenant's leasehold improvements which
were installed in the Premises at Tenant's sole cost and expense. Said
amortization shall be determined on the straight-line depreciation method
allowed by the Internal Revenue Code of 1986 (as amended) assuming a
depreciation period commencing with the placement in service of such leasehold
improvements and ending on the date of expiration of the Term determined
pursuant to Section 3.1. Payment of the amount equivalent to the unamortized
value of Tenant's leasehold improvements will be made to Tenant within thirty
(30) days after Tenant shall have vacated the Premises in accordance with the
terms of this Lease, provided that Landlord shall have the right to deduct
therefrom any amounts due Landlord from Tenant pursuant to this Lease. For
purposes of this Section, "Tenant's leasehold improvements" shall include
partitioning, electrical wiring, plumbing (other than plumbing fixtures),
painting, wallpaper, storefront and other permanent improvements installed,
affixed or attached in or to the Premises, but shall not include (x) Tenant's
inventory or stock in trade, (y) such trade fixtures, electrical fixtures,
equipment or apparatus as are removable by Tenant at the expiration of the Term
pursuant to Article VII, or (z) Landlord's fixtures or other improvements
installed by or at the expense of Landlord. In order for Tenant to be entitled
to payment of the unamortized value of its leasehold improvements as set forth
in this paragraph, Tenant shall, within sixty (60) days after commencement of
the Term. furnish to Landlord a statement, signed by an independent certified
public accountant, setting out in detail the cost of Tenant's leasehold
improvements.
If this Lease shall be terminated as to any portion or all of the
Premises pursuant to this Section, the rights and obligations of the parties
hereunder shall cease as of the date specified herein and Rental (other than any
Additional Rental due Landlord by reason of Tenant's failure to perform any of
its obligations hereunder) shall be adjusted as of the date of such termination.
No further documentation shall be required to effect the termination of this
Lease, but each party agrees that, upon the written request of the other party
to do so, it shall execute, acknowledge and deliver an appropriate instrument
evidencing such termination prepared by or at the expense of the party
requesting the same.
Section 20.24. Landlord's Option to Terminate Lease.
Notwithstanding any provision herein to the contrary, if, for any
reason whatsoever the Premises shall not be Ready for Occupancy on or before
March 31, 1999, Landlord may elect to terminate this Lease by giving notice of
such election to Tenant. If such notice is given, this Lease and the rights and
obligations of the parties hereunder shall thereupon cease and terminate without
need for the execution of any further or other instrument but, if Landlord shall
request, Tenant shall execute an instrument, in recordable form, whereby Tenant
releases and surrenders all right, title and interest which it may have in and
to the Premises under this Lease or otherwise.
Section 20.25. Financing Contingency.
Landlord reserves the right to terminate this Lease unless Tenant, no
later than one hundred twenty (120) days before the Grand Opening Date, supplies
Landlord with documentation reasonably satisfactory to Landlord evidencing
Tenant's financial ability to complete the construction of and the improvements
to the Premises in accordance with the provisions of this Lease. If Tenant does
not supply Landlord with such documentation by such date, Landlord may terminate
this Lease by giving Tenant notice of such termination no later than the latter
to occur of (i) commencement of Tenant's construction within the Premises or
(ii) thirty (30) days before the Grand Opening Date. Upon the giving of said
46
<PAGE>
notice of termination, Landlord and Tenant shall be relieved of all obligations
and shall be completely discharged and released from all liabilities, claims,
rights or causes of action hereunder.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
hereby have executed this Lease under their respective hands and seals as of the
day and year first above written.
WITNESS: ROUSE-ORLANDO, INC., Landlord
- ------------------------------- -------------------------------------
WITNESS:
By: (SEAL)
- ------------------------------- ----------------------------
Vice-President
WITNESS: ATTEST:
- -------------------------------
WITNESS:
- ------------------------------- ------------------------------------
Assistant Secretary
(CORPORATE SEAL)
WITNESSES: PIZZERIA REGINA FLORIDA, INC., Tenant
(a/k/a Pizzeria Regina of Florida, Inc.)
(SEAL)
- ------------------------------- ----------------------------------------
President
ATTEST:
- ------------------------------- ---------------------------------------
Secretary
(CORPORATE SEAL)
If Tenant is a corporation, the authorized officers must sign on behalf
of the corporation, and by doing so such officers make the covenants and
warranties contained in Section 20.17 hereof. The Lease must be executed for
Tenant, if a corporation, by the president or vice-president and be attested by
the secretary or the assistant secretary, unless the by-laws or a resolution of
the board of directors shall provide that other officers are authorized to
execute the Lease, in which event a certified copy of the by-laws or resolution,
as the case may be, must be furnished. Tenant's corporate seal must be affixed.
47
<PAGE>
RIDER TO LEASE
--------------
THIS RIDER is annexed to and forms part of the Lease dated ,
between ROUSE-ORLANDO, INC., a Maryland corporation as Landlord, and PIZZERIA
REGINA FLORIDA, INC., a Florida corporation, t/a PIZZERIA REGINA, as Tenant.
The printed part of the Lease is hereby modified and
supplemented as follows. Wherever there is any conflict
between this Rider and the Lease, the provisions of this Rider
are paramount and the Lease shall be construed accordingly.
Section 1.1. (The printed Section deals with Certain Defined Terms):
W. Delete the words and number "eighteen percent (18%)" appearing in
the printed Section 1.1.W., and insert in lieu thereof "two (2) percentage
points over the Prime Rate, reported as of the beginning of the most recent
calendar quarter prior to the date as of which the interest is to accrue. 'Prime
Rate' is an annual percentage rate published by The Wall Street Journal in its
Money Rates."
Y. Delete the printed Section 1.1.Y. and insert the following in lieu
thereof:
"Y. 'Anchor Store' means any department or specialty store which
occupies a floor area in excess of 50,000 square feet in the Shopping Center."
Section 2.1. (The printed Section deals with Demise):
Add the following at the end of the printed Section 2.1.:
"Landlord represents that, at the time of execution of this Lease,
there are no agreements of record applicable to the Premises which would
prohibit Tenant from operating its Permitted Use in the Premises."
Add the following to the end of the printed Section 2.1.:
"The parties hereto agree that upon request within sixty (60) days
after completion of the work required of Tenant under Section 7.1. hereof, the
Premises shall be remeasured by Landlord using the formula set forth in Section
1.1.U. hereof. If the total area of the Premises is found to be less than or
greater than the area as set-forth in the printed Section 1.1.D., then Landlord
and Tenant shall execute an amendment to the Lease to correct the discrepancy in
the total area of the Premises, for all purposes of this Lease. If neither party
requests said remeasuring within the aforesaid 60-day period, the Floor Area
stated in Section 1.1.D. shall be deemed accepted by the parties hereto for all
purposes of this Lease."
Section 3.1. (The printed Section deals with Term):
Delete the phrase "the first day on which the Premises are 'Ready for
Occupancy' (as defined in Section 7.3.)" in the first and second lines of the
printed Section 3.1. and insert the phrase "the Grand Opening Date, as
determined by Landlord, which date shall not be earlier than March 4, 1998" in
lieu thereof.
Section 3.3. (The printed Section deals with Holding Over):
1
<PAGE>
Add the following to the end of the printed Section 3.3.:
"For a period of sixty (60) days following the expiration of the Term,
provided Landlord and Tenant are engaged in good-faith negotiations for a
renewal or extension of this Lease, the provisions of this Section 3.3. shall be
waived with regard to the change in the terms regarding the payment of Rental,
and during such 60-day period, Tenant shall continue to pay the Rental which was
due and payable under the Lease at the end of the Term.
"If such negotiations terminate before the expiration of said 60-day
period, or if Landlord and Tenant have not executed a renewal ].ease or an
extension of this Lease within the aforesaid 60-day period,, the provisions of
this Rider Section 3.3. shall no longer be applicable, and the full provisions
of the printed Section 3.3. shall prevail. Nothing herein shall be construed to
obligate Landlord to negotiate with Tenant for a renewal or extension of this
Lease,"
Delete the word "twice" in the sixth line of the printed Section 3.3.
and insert in lieu thereof the words "one and one-half (1-1/2) times."
Section 4.1. (The printed Section deals with Prompt Occupancy and Use):
After the words "continuously use" in the second line of the printed
Section 4.1., add the following: ",except when the Shopping Center is not open
for business to the public."
Section 4.3. (The printed Section deals with Tenant Trade Name):
Add the following to the end of the printed Section 4.3.:
"So long as Pizzeria Regina Florida, Inc. is Tenant under this Lease
and is not in default of any of the terms and conditions thereof beyond any
applicable cure period, Landlord will not unreasonably withhold its consent to a
change in Tenant Trade Name provided the majority of Tenant's stores operating
under the same Tenant Trade Name at the time of such name change shall be
changing their trade name to the same new trade name as the new trade name being
requested for the Premises, and such other trade name will not conflict with,
and is non likely to confuse the public regarding, the trade names of on her
tenants in the Shopping Center. Within thirty (30) days of a permitted change in
Tenant Trade blame, Tenant agrees, at its sole cost and expense, to replace its
storefront sign to reflect the new Tenant Trade Name. Plans and specifications
for such storefront sign must be set forth. in detail and submitted to Landlord
for approval prior to installation of said sign."
Section 4.4. (The printed Section deals with Store Hours):
After the word "Landlord" in the fourth line of the printed Section
4.4., add the following: ", except for customary holidays observed by Landlord
when the Shopping Center is closed for business."
Delete the words and number "One Hundred Dollars ($100.00)" in the
seventh line of the first paragraph of the printed Section and insert in lieu
thereof the words and number "Fifty Dollars ($50.00)."
After the word "request" in the second line of the second paragraph of
the printed Section 4.4., add the following: "which approval shall not be
unreasonably withheld or delayed."
Before the word "Tenant's" in the third line of the second paragraph of
the printed Section 4.4., add the words "and due solely to".
2
<PAGE>
Add the following to the end of the printed Section 4.4.:
"Notwithstanding anything to the contrary contained in this Section
4.4., Landlord shall give Tenant notice one (1) time in each Rental Year for
Tenant's failure to open for business at the Premises at least during the Store
Hours on any one (1) day before assessing the liquidated damages for such breach
or imposing such other remedies available to Landlord under this Lease for such
failure. On the second add subsequent such failure in any one (1) Rental Year,
Landlord shall have recourse to any remedy available to it under this Lease,
including, but not limited to, the collection of liquidated damages."
Section 5.3. (The printed Section deals with Annual Percentage Rental):
Delete the printed Section 5.3. in its entirety and insert in lieu
thereof the following:
"Tenant shall be under no obligation to make any payments of Annual
Percentage Rental in any Rental Year until Tenant has achieved the Breakpoint
set forth in Section 1.1.H. of this Lease for that Rental Year. Upon achieving
such Breakpoint in any Rental Year, Tenant shall thereupon make monthly payments
of Annual Percentage Rental payable on or before the fifteenth (15th) day
following the close of each full calendar month during the Term, based on Gross
Sales for such period. Monthly payments of Annual Percentage Rental shall be
calculated by multiplying the amount of Gross Sales for the month in question by
the percentage specified in Section 1.1.H., the first such payment to include
also any prorated Annual Percentage Rental for the period from the date Tenant's
Gross Sales reach the Breakpoint see forth in Section 1.I.H. to the first day of
the next full calendar month in the Term. If necessary, as soon as practicable
after the end of each Rental Year, the Annual Percentage Rental paid or payable
for such Rental Year shall be adjusted between Landlord and Tenant, each party
hereby agreeing to make such adjustment and to pay to the other, on demand, such
amount as may be necessary to effect adjustment to the agreed Annual Percentage
Rental."
Section 5.5. (The printed Section deals with "Gross Sales" Defined):
At the end of clause (b) appearing in the first paragraph of the
printed Section 5.5., add the words "to or from the Premises."
Section 5.6. (The printed Section deals with Statements of Gross
Sales):
Insert the word "reasonable" before the word "cost" in the fifteenth
line of the first paragraph of the printed Section 5.6.
Add the following to the end of the printed Section 5.6.:
"Notwithstanding anything to the contrary in this Section 5.6., so long
as Tenant's records are maintained in accordance with generally accepted
accounting principles, reporting of Gross Sales remains accurate, and Tenant is
not in default under the provisions of Sections 5.2., 5.3. and 5.7. of this
Lease, Tenant's annual statement of Gross Sales may De signed by Tenant's Chief
Financial Officer in lieu of certification by an independent Certified Public
Accountant. In the event Landlord's audit of Tenant's Gross Sales reveals a
discrepancy in Annual Percentage Rental previously payable in excess of three
percent (3%) for any one Rental Year, or Tenant defaults under said Sections
5.2., 5.3. or 5.7., Tenant shall. be required to have such statement accompanied
by the signed certificate of an independent Certified Public Accountant for each
Rental Year during the remainder of the Term, as further provided in the printed
Section 5.6."
3
<PAGE>
Section 5.7. (The printed Section deals with Tenant's Records):
Insert the words "ten (10) days written" before the word "advance" in
the ninth line of the printed Section 5.7.
After the words "time to time" in the ninth line of the printed Section
5.7., add the words ", within three (3) years after the end of each Rental
Year,"
Delete the last two sentences of the printed Section 5.7.
Add the following to the end of the printed Section 5.7:
"For the purpose of this Section 5.7. regarding Tenant's requirement to
keep books and records which disclose all information required to determine
Gross Sales, it is agreed that Tenant's normal business records will be
considered sufficient, so long as such records are kept in accordance with
generally accepted accounting principles, and so long as Tenant has established
an adequate system of internal control."
After the word "notice" in the nineteenth line of the printed Section
5.7., add the words "as provided herein."
Section 5.8. (The printed Section deals with Payment of Rental):
Delete the words and number "ten percent (10%)" in the fifth line of
the printed Section 5.8. and insert in lieu thereof the words and number "five
percent (5%)"
Section 5.9. (The printed Section deals with Advance Rental
Delete the printed Section 5.9. in its entirety.
Section 5.10. (The printed Section deals with Future Expansion):
Add the following to the end of the printed Section 5.10.:
"Notwithstanding anything contained in this Section 5.10. to the
contrary, it is hereby. agreed that the aforementioned increase in Annual Basic
Rental shall only apply upon the occurrence of the opening for business of
additional 90,000 square foot Anchor Store(s)."
Delete the words and number "ten percent (10%)" in the printed Section
5.10. and insert the words and number "five percent (5%)" in lieu thereof.
Section 6.1. (The printed Section deals with Tenant to Pay
Proportionate Share of Taxes):
Add the following phrase after the word "special" in the third line of
the printed Section 6.1:
"including Dovera Community Development District assessments".
Delete the words "Landlord's Floor Area" appearing in the fourteenth
line of the printed Section 6.1., and insert "Landlord's Qualifying Floor Area"
in lieu thereof.
4
<PAGE>
Add the following to the end of the printed Section 6.1.
"If a betterment or improvement assessment is payable in installments,
the following shall apply: Regardless of whether Landlord elects to pay the
assessment in installments, Tenant's proportionate share of the Taxes shall be
computed as though Landlord had elected to pay the same in the maximum number of
installments permitted by law without additional costs, penalties or interests
being assessed by reason of such installments, provided the Term has not expired
or the Lease has not terminated. Tenant shall not have any liability with
respect to installments which are attributable to the period after the
expiration of the Term."
Add the following to the end of the printed Section 6.1.:
"Landlord agrees that it will pay the appropriate taxing authority all
taxes assessed, levied or imposed against the Shopping Center Area which
Landlord is required to pay, subject to Landlord's right to contest or appeal in
an effort to reduce any such tax, assessment or charge. So long as Tenant is not
in default of the requirement to pay its Taxes, Tenant shall not be required to
pay any interest or penalties imposed for non-payment of Taxes."
Add the following to the end of the printed Section 6.1.:
"Within a reasonable time after receipt of Tenant's written request
therefor, Landlord shall forward copies of paid real estate tax bills to Tenant
indicating that said bills have been paid. Landlord shall also forward all
reasonable and non-confidential Information required by Tenant to compute its
proportionate share of said Taxes."
Add the following to the end of the printed Section 6.1.:
"Nothing in this Section 6.1. shall require Tenant to pay any general
income, franchise, corporate transfer, estate or gift tax imposed upon Landlord
generally rather than as owner and/or lessee the Shopping Center Area."
Before the word "fees" in the eighth line of the printed Section 6.1.,
add the word "reasonable".
Section 6.2. (The printed Section deals with Payment of Proportionate
Share of Taxes):
Before the word "determination" in the seventh line of the printed
Section 6.2., add the word "reasonable".
Section 7.3. (The printed Section deals with "Ready for Occupancy"
Defined):
Add the words "within a maximum of two (2) weeks from such date" after
the word "business" at the end of the printed Section 7.3.(b).
Section 7.4. (The printed Section deals with Effect of Opening for
Business):
At the end of the printed Section 7.4., change the period to a comma
and insert the following language: "except, however, that Landlord shall repair
(i) any apparent defect in work performed by Landlord and which is brought to
Landlord's attention within thirty (30) days from the date Tenant takes
possession of the Premises, and (ii) any latent defect in work performed by
Landlord and which is
5
<PAGE>
brought to Landlord's attention within six (6) months from the date Tenant takes
possession of the Premises."
Section 7.5. (The printed Section deals with Mechanic's Liens):
After the word 'may' in the twenty-fifth line of the printed Section
7.5., insert: ", after thirty (30) days notice to Tenant,".
Notwithstanding anything to the contrary contained in the printed
Section 7.5., Tenant shall be allowed thirty (30) days after notice from
Landlord to cause such mechanic's lien to be discharged of record or bonded to
the satisfaction of Landlord; provided, however, if such mechanic's lien (a)
delays a draw under Landlord's construction financing, or (b) delays the closing
of Landlord's permanent financing, Tenant shall, after notice from Landlord,
immediately cause such mechanic's lien to be discharged of record or bonded to
the satisfaction of Landlord.
Section 7.6. (The printed Section deals with Tenant's Leasehold
improvements):
At the end of the second paragraph of the printed Section 7.6., change
the period to a comma, and insert the phrase "ordinary wear and tear excepted."
Add the following to the end of the printed Section 7.6.:
"Notwithstanding anything to the contrary contained in this Section
7.6., Landlord agrees to subordinate any lien which it may have on Tenant's
goods, inventory, equipment, trade fixtures and all other personal property
belonging to Tenant, excluding leasehold improvements, and any such items
acquired by Tenant with funds received from a construction allowance, if any,
paid by Landlord as a construction allowance pursuant to this Lease, on a form
acceptable to Landlord, to the rights of a recognized institutional lender or
supplier of inventory to be sold under the terms and conditions of' this lease
which is a secured creditor of Tenant for the purpose of originally financing
said goods, inventory, equipment, trade fixtures and all other personal property
for use in the Premises.
"Tenant shall pay to Landlord, as Additional Rental, the sum of One
Hundred Dollars ($100.00) to cover Landlord's administrative costs, overhead and
counsel fees, plus all out-of-pocket expenses, in connection with such
subordination of lien and any and all additional costs and expenses incurred as
a result thereof."
Section 8.1. (The printed Section deals with Operations by Tenant):
(1) Add the following to the end of the printed Section 8.1.(1):
"Notwithstanding anything to the contrary contained in the printed
Section 8.1.(1), Tenant shall not be required to operate business in the
Premises in a manner inconsistent with the quality of operation of Tenant at its
other locations at the time of the execution of this Lease."
(m) Insert the word "reasonably" before the word "determined" in the
printed Section 8.1. (m).
(m) Insert a period after the word "Landlord" in the printed Section
8.1. (m) and delete the remainder of the clause.
6
<PAGE>
(z) Insert the word "unreasonably" before the word "drain" in the
twenty-fourth line of the printed Section 8.1. (z).
Delete the word "and" appearing between subsections (l) and (m) and in
the printed Section 8.1.
At the end of the first paragraph of the printed Section 8.1., change
the period to a semicolon and insert the following language:
"(aa) have the filters in the hoods to the food processing exhaust
systems removed daily and washed; (bb) have the hoods scraped and cleaned a
minimum of once every three (3) months, or as designated by Landlord, a record
of such cleaning to be presented to Landlord's Shopping Center Manager; (cc)
install grease traps in the Premises and keep same in a clean and sanitary
condition and in good working order and repair, such traps to be thoroughly
cleaned on a monthly basis and a record of such cleaning to be presented to
Landlord's Shopping Center Manager; and (dd} if gas is used in the Premises,
install a proper gas cut-off valve in the Premises."
Section 8.2. (The printed Section deals with Signs and Advertising):
Delete the words "without first obtaining Landlord's approval" in the
fifth line of the printed Section 8.2. and insert the following in lieu thereof:
"unless the same is placed and maintained in accordance with the terms of that
portion of Schedule C headed 'Sign Criteria'"
Section 8.3. (The printed Section deals with Painting and Displays by
Tenant):
After the word "approval" appearing in the second line of the printed
Section 8.3., change the period to a semicolon, and insert the following:
"provided, however, that Landlord's approval shall not be necessary for the
painting or decorating of any portion of the interior of the Premises so long as
such painting or decorating is in conformance with the color or decorating
scheme originally installed by Tenant and approved by Landlord for the
Premises."
Before the word "determined" appearing in the seventh line of the
printed Section 8.3., insert the word "reasonably", and after the first
occurrence of the word "Landlord" in the seventh line, insert "based upon
Schedule C attached hereto."
Section 8.4. (The printed Section deals with Trash Removal Service):
Add the following to the end of the printed Section 8.4.:
"If Landlord is providing trash removal service to the Premises,
Landlord agrees that any charges imposed by it for such trash removal shall be
reasonable for and competitive with the same quality of service rendered by
other companies providing trash removal service in the area in which the
Shopping Center is located."
After the word "increase" in the seventh line of the printed Section
8.4., add the words "or decrease".
Section 8.6. (The printed Section deals with Hazardous Substances):
(b) At the beginning of the printed Section 8.6.(b), insert the phrase
"if Tenant engages in Hazardous Substance Activity,"
7
<PAGE>
(c) At the beginning of the printed Section 8.6.(c), insert the phrase
"if Tenant engages in Hazardous Substance Activity,"
(e) At the beginning of the printed Section 8.6.(e), insert the phrase
"if Tenant engages in Hazardous Substance Activity,"
(g) Add the following to the end of the printed Section 8.61(g): ", but
with respect to testing required by Landlord's Mortgagee, Tenant shall only be
responsible for testing costs for Releases caused by the acts or omissions of
Tenant, its officers, agents, contractors, employees or invitees"
(h) At the end of the printed Section 8.6.(h), insert the phrase
"caused by the acts or omissions of Tenant, its officers, agents, contractors,
employees or invitees".
Add the following to the end of the printed Section 8.6.:
"As of the date of execution of this Lease, to the best of Landlord's
knowledge and information, the Common Areas of the Shopping Center. are in
compliance with all federal, state, local and municipal codes, laws, ordinances
and regulations which relate to Hazardous Substances."
Add the following to the end of the printed Section 8.6.:
"Landlord agrees that it shall not look to Tenant for contribution to
the cost of any remedial activity necessitated as a result of a sudden
catastrophic spill or discharge involving Hazardous Substances in the Premises,
except to the extent (if any) that such existence resulted, directly or
indirectly, from the acts or omissions of Tenant, its officers, agents,
contractors, employees or invitees."
"Landlord agrees that it shall not require Tenant to contribute to the
cost of any remedial activity required in the Premises by laws or regulations in
effect as of the execution of this Lease due to the presence of a Hazardous
Substance (defined as of the execution date) in the Premises, unless the
remedial activity is required due to the actions or negligence of Tenant, its
agents, contractor or employees."
Section 9.1. (The printed Section deals with Repairs to be Made by
Landlord):
After the words "structural columns" appearing in the second line of
the printed Section 9.1., add the words ", roof (subject to the provisions
contained in Section 10.4. and Section 10.5.)"
Section 9.2. (The printed Section deals with Repairs to be Made by
Tenant):
Add the following to the end of the printed Section 9.2.:
"Tenant's obligation to repair electrical, plumbing and other
mechanical installations contained within the Premises shall be limited to such
installations which are used solely by Tenant."
"Notwithstanding anything to the contrary contained herein or in
Schedule F, Tenant shall not be required or obligated to replace the heating,
ventilating and air-conditioning system or the systems which are Landlord's
responsibility to repair and maintain, serving the Premises.
Section 9.3. (The printed Section deals with Damage to Premises):
8
<PAGE>
Delete the word and number "five (5)" appearing in the fifth line of
the printed Section 9.3., and insert the word and number "ten (t0)" in lieu
thereof.
Section 9.4. (The printed Section deals with Alterations by Tenant):
Add the following to the end of the printed Section 9.4.:
"Notwithstanding anything to the contrary contained in this Section
9.4., without first obtaining Landlord's prior written consent or approval,
Tenant shall have the right to make interior repairs or replacements in and to
the Premises, provided (i) such interior alterations neither require any
structural alteration nor impose any greater load on any structural portion of
the Premises, (ii) such interior repairs or replacements are in accordance with
Tenant's originally approved plans and are in conformance with Schedules B and C
attached hereto, (iii) the cost of such interior repair or replacement shall not
exceed Five Thousand Dollars ($5,000.00) per Rental Year and (iv) Tenant agrees
to indemnify and hold harmless Landlord from and against all claims, actions,
liability and damage sustained by Landlord (including, without limitation, as
provided in Section 9.2.) as a result of any such work by Tenant, its agent,
employees or contractors."
Before the word "interference" in the ninth line of the printed Section
9.4., add the word "material"
Section 9.5. (The printed Section deals with Changes and Additions to
Shopping Center):
Add the following phrase after the word "reduce" in the eleventh line
of the printed Section 9.5.:
"Landlord's Floor Area required for the determination of the date on
which the Premises are Ready for Occupancy as described in clause (d) of Section
7.3, or"
Add the following to the end of the printed Section 9.5:
"Any changes or additions by Landlord to the Shopping Center Area shall
be performed in such a manner so as not to unreasonably interfere with Tenant's
use of the Premises and shall not change in a material, adverse way the access
to the Premises from the Common Areas adjacent to the Premises. In no event,
however, shall this provision prevent Landlord from installing and maintaining
kiosks or pushcarts in the Common Areas."
Section 9.6. (The printed Section deals with Roof and Walls):
Delete the word "deny" in the seventh line of the printed Section 9.6.
and insert the words "materially interfere with" in lieu thereof.
After the word "thereof" in the seventh line of the printed Section
9.6., delete the period and add the following: "and only after reasonable prior
notice, except in the case of emergencies."
Section 10.2. (The printed Section deals with Management and Operation
of Common Areas):
(i) After the word "reasonable" appearing in the printed Section
10.2.(i), insert: "and non-discriminatory".
Add the following to the end of the printed Section 10.2.:
9
<PAGE>
"Landlord covenants and agrees that it will provide, operate, repair
and maintain such Common Areas as are reasonably required for the operation of a
first class shopping center."
Add the following to the end of the printed Section 10.2.:
"Landlord agrees that the exercise of its rights under this Section
10.2. will not materially, adversely affect access to the Premises from the
Common Areas immediately in front of and adjacent to the Premises or Tenant's
use of the Premises."
Section 10.3. (The printed Section deals with Employee Parking Areas):
Add the following to the end of the printed Section 10.3.:
"Tenant shall not be charged Ten Dollars ($10.00) per car per day
pursuant to this Section 10.3. until the third and subsequent such violation
after Landlord has given notices for the first two (2) such violations."
Section 10.6. (The printed Section deals with Mall Heating, Ventilating
and Air-Conditioning Equipment Contribution Rate):
Delete the printed Section 10.6. in its entirety, and insert the
following in lieu thereof:
"The Mall Heating, Ventilating and Air-Conditioning Equipment
Contribution shall be included with the HVAC Equipment Contribution Rate
provided for in Section 1.1.J. of this Lease."
Section 10.7. (The printed Section deals with Renovation or Expansion
of Common Areas):
Delete the printed Section 10.7. in its entirety.
Section 11.2. (The printed Section deals with Tenant's Contribution to
Marketing Fund):
Add the following to the end of the printed section 11.2.(a):
"Notwithstanding anything to the contrary contained herein, increases
in Tenant's Annual Marketing Fund Contribution for any Fund Year shall not
exceed five percent (5%) of Tenant's Annual Marketing Fund Contribution for the
preceding Fund Year."
(b) Add the following to the end of the printed Section 11.2.(b):
"Tenant's obligation to pay an Expansion Opening Contribution shall be
limited to expansions of the Shopping Center which increase Landlord's Floor
Area by 40,000 square feet or more and/or the opening for business of a fourth
Anchor Store in the Shopping Center."
Section 11.4. (The printed Section deals with "First Association Year"
and "Association Year" Defined):
At the end of the printed Section 11.4., change the period to a
semi-colon, and insert the following: "or, at the option of Landlord, as defined
by the Marketing Fund."
Section 12.1. (The printed Section deals with Water, Electricity,
Telephone and Sanitary Sewer):
10
<PAGE>
After the first appearance of the word "Premises" in the third line of
the second paragraph of the printed Section 12.1., delete the period and add the
following: "as set forth in Schedule E."
After the second appearance of the word "Landlord" in the eighth line
of the second paragraph of the printed Section 12.1., add the words "and
reasonably satisfactory to Tenant."
Delete the period at the end of the third paragraph of the printed
Section 12.1., and add the following: ", and provided further that Landlord
shall use its reasonable efforts to minimize interruption to electricity service
to the Premises."
After the word "therefor" in the fifth line of the last paragraph of
the printed Section 12.1., add the words "which approval shall not be
unreasonably withheld or delayed."
Add the following to the end of the printed Section 12.1.:
"If any utility to the Premises should become unavailable for a period
in excess of seventy-two (72) consecutive hours and such unavailability is
directly caused by the willful act or gross negligence of Landlord, all Rental
shall abate until utility service to the Premises is restored."
"Upon the expiration of the Term or at such other time as Tenant may
vacate the Premises, Tenant, at its sole cost and expense, shall cap the
plumbing in the Premises. Such work shall be performed to meet code
requirements."
Section 12.2. (The printed Section deals with Heating, Ventilating and
Air-Conditioning):
Before the word "Tenant" in the fourth line of the second paragraph of
the printed Section 12.2., add the words "such documentation is reasonably
satisfactory to Landlord, and provided further that."
After the word "Landlord" in the third line of the third paragraph of
the printed Section 12.2., add the words "in its reasonable determination."
After the word "approval" in the sixth line of the third paragraph of
the printed Section 12.2., add the words, "which approval shall not be
unreasonably withheld."
Before the word "cost" in the last line of the third paragraph of the
printed Section 12.2., add the word "reasonable."
Section 12.4. (The printed Section deals with Discontinuances and
Interruptions of Utility Services):
Delete the first two sentences of the printed Section 12.4.
Section 13.1. (The printed Section deals with Indemnities):
Before the word "attorneys" appearing in the third line of the printed
Section t3.1., insert the word "reasonable"
After the word "invitees" appearing in the eighth line of the printed
Section 13.1., insert the parenthetical phrase "(while in the Premises)".
11
<PAGE>
Add the following to the end of the printed Section 13.1.:
"Landlord shall indemnify, hold harmless and defend Tenant, its agents,
servants and employees from and against all claims, actions, losses and expenses
made by third parties (including attorneys' and other professional fees),
arising from any conduct, activity, act, omission or operation involving the
use, handling, generation, treatment, storage, disposal or release of any
Hazardous Substance in, from or to the Premises or the Shopping Center, to the
extent caused directly by the actions of Landlord, its agents, servants and
employees, and not arising solely out of Landlord's position as an
Owner/Operator of the Shopping Center."
Section 13.3. (The printed Section deals with Tenant's Insurance):
Delete the phrase "At all times on and after delivery of the Premises
to Tenant" in the first line of the printed Section 13.3. and insert the
following: "At all times after the Premises are released to Tenant for
construction of its improvements" in lieu thereof.
Add the following to the end of the printed Section 13.3.(b):
"Notwithstanding anything to the contrary contained in this Section
13.3.(b), Tenant may carry the insurance required under this Section 13.3.(b) in
a deductible form, so long as the amount of such deductible does not exceed
$25,000.00 and so long as Tenant agrees not to hold Landlord, its officers,
agents, contractors or employees liable for any losses which would otherwise be
covered by such deductible. Tenant hereby expressly waives all right of recovery
against Landlord, its officers, agents, employees or contractors for damage
which would otherwise be covered by any deductible contained in Tenant's
insurance policies covering the Premises."
Section 13.4. (The printed Section deals with Tenant's Contractor's
Insurance):
Add the following to the end of the printed Section 13.4.:
"Notwithstanding anything to the contrary contained in this Section
13.4., Tenant's contractor may carry the insurance required under this Section
13.4. in a deductible form, so long as the amount of such deductible does not
exceed $25,000.00 and so long as Tenant agrees to pay any party, including
Landlord, for any losses suffered which would otherwise be covered by such
deductible."
(a) Delete the words and numbers "Three Million Dollars ($3,000,000)"
appearing in clause (a) of the printed Section t3.4., and insert "One Million
Dollars ($1,000,000.00))" in lieu thereof.
(b) Delete the words and numbers "One Million Dollars ($1,000,000)"
appearing in clause (b) of the printed Section 13.4., and insert "Five Hundred
Thousand Dollars ($500,000.00)" in lieu thereof.
Section 13.5. (The printed section deals with Policy Requirements):
Insert the word "reasonable" before the word "approval" in the third
line of the printed Section 13.5.
After the word "certified" in the eleventh line of the printed Section
13.5., add the word "or registered".
Section 13.6. (The printed Section deals with Increase in Insurance
Premiums):
12
<PAGE>
Add the following to the end of the printed Section 13.6:
"So long as Tenant complies with all laws, ordinances, rules and
regulations of governmental authorities in effect and all recommendations of the
National Fire Protection Association or similar entity selected by Landlord,
Landlord shall not require Tenant to pay any insurance increase solely because
Tenant's Permitted Use as of the Commencement Date results in the increase."
Section 13.8. (The printed Section deals with Tenant to Pay
Proportionate Share of Insurance Costs):
Delete the words "Landlord's Floor Area" appearing in the third line of
the second paragraph of the printed Section 13.8., and insert "Landlord's
Qualifying Floor Area" in lieu thereof.
Add the following to the end of the printed Section 13.8.:
"Landlord warrants that it maintains and covenants that it will at all
times maintain all risks casualty insurance covering Landlord's Building in an
amount equal to at least ninety percent (90%) of its full replacement value, or
such greater percent as is necessary to prevent the application of the
co-insurance provisions."
After the word "insurance" in the second line of the printed Section
13.8., add the words "required hereunder."
Section 14.1. (The printed Section deals with Landlord's Obligation to
Repair and Reconstruct):
Delete the words "; provided, however, that," after the word "Landlord"
in the twelfth line of the printed Section 14.1. and insert the following in
lieu thereof: ", but Landlord shall not be required to perform any work beyond
that described in Sections A and B of Schedule B".
After the word "Rental" in the sixth line of the printed Section 14.1.,
add the words "and other charges".
Section 14.2. The printed Section deals with Landlord's Option to
Terminate Lease):
Add the following to the end of the printed Section 14.2.:
"Tenant shall have the right to terminate this Lease if the Premises
are damaged in whole or in part and are thereby rendered untenantable for a
period of thirty (30) days or more during the last three (3) years of the Term
hereof, by giving Landlord written notice of such termination within thirty (30)
days after the occurrence of such Casualty. In the event Tenant so terminates,
both parties hereto shall be relieved of all obligations under this Lease saving
and excepting those obligations occurring or accruing prior to such
termination."
Add the following at the end of the printed Section 14.2.:
"Landlord shall have the right to terminate this Lease as specified in
(a), (b) and (c) of the printed Section 14.2. only in the event that (i)
Landlord elects not to rebuild the Premises and does not commence rebuilding of
the Premises within one (1) year after the date of such Casualty, and (ii)
Landlord terminates the leases of all other retail tenants in Landlord's
Building similarly affected by such
13
<PAGE>
Casualty, in which event, subject to Section 20.22. hereof, both parties will be
relieved of all obligations under this Lease except those obligations occurring
or accruing prior to the date of such termination."
Add the following at the end of the printed Section 14.2.:
"If any of the events described in the printed Section 14.2. occur, and
Landlord does not elect to exercise is right to terminate this Lease, Landlord
shall give Tenant notice within ninety (90) days after the date of such
Casualty, as to the length of time Landlord reasonably expects it shall take to
restore the Premises. If the Premises cannot be repaired or restored within one
(1) year after the date of such Casualty, Tenant shall have the right to
terminate this Lease within thirty (30) days after receipt of such notice from
Landlord by giving Landlord notice of its intention to so terminate. In the
event of such termination, both parties, subject to Section 20.22. hereof, will
be relieved of all obligations under this Lease except those obligations
occurring or accruing prior to the date of such termination."
Section 14.3. (The printed Section deals with Demolition of Landlord's
Building):
Add the following to the end of the printed Section 14.3.:
"It is agreed between the parties hereto that if it is Landlord's
decision to demolish the building in which the Premises are located, then in
that event Tenant may terminate this Lease upon ninety (90) days' notice to
Landlord. In the event of such termination, both parties hereunder shall be
relieved of all obligations under this Lease saving and excepting those
obligations occurring or accruing prior to such termination."
Section 15.1. (The printed Section deals with Effect of Taking):
Add the following to the end of the printed Section 15.1.:
"If a material part of the Premises shall be taken under the power of
eminent domain to the extent that it is unreasonable to expect Tenant to
continue to operate its business in the Premises, or substantially impairs its
ability to conduct its business in the Premises, Tenant may terminate this
Lease, as of the date when Tenant is required to yield possession, by giving
notice to that effect to Landlord within thirty (30) days after such date. In
the event of any such termination, both parties shall be relieved of all
obligations under this Lease as of the date of such termination, saving and
excepting any obligation occurring or accruing prior to the date of such
termination."
Section 16.1. (The printed Section deals with Landlord's Consent
Required):
Add the following to the end of the printed Section 16.1.:
"Notwithstanding anything which may be to the contrary in this Section
16.1., provided Tenant is not in default under any of the terms and conditions
of this Lease, and further provided that Tenant has fully and faithfully
performed all of the terms and conditions of this Lease, Tenant shall have the
right, with written notice to Landlord within thirty (30) days of such
assignment, to assign this Lease to any parent, subsidiary or affiliate
corporation of Tenant, or to the surviving corporation in connection with a
merger, consolidation or acquisition between Tenant and any of its subsidiaries
for any of the then remaining portion of the unexpired Term without Landlord's
consent, at any time during the Term of the Lease, provided: (i) the net assets
of the assignee corporation at the time of the assignment shall not be less than
the net assets of Tenant at the time of the signing of this Lease; (ii) the
assignee corporation provides Landlord with audited financial statements
certifying such net assets; (iii) such assignee
14
<PAGE>
continues to operate the business conducted in the Premises under the same
Tenant Trade Name, in the same manner as Tenant and pursuant to all of the
provisions of this Lease; (iv) such assignee corporation shall assume in writing
in form acceptable to Landlord all of Tenant's obligations under this Lease and
Tenant shall provide Landlord with a copy of such assignment; and (v) Tenant
continues to remain liable on this Lease for the performance of all terms,
including but not limited to, payment of Rental due under this Lease."
Add the following to the end of the printed Section 16.1.:
"Notwithstanding anything to the contrary contained in this Section
16.1., so long as PIZZERIA REGINA FLORIDA, INC. is Tenant under this Lease and
is not in default of any of the terms and conditions thereof, and further
provided that Tenant has fully and faithfully performed all of the terms and
conditions of this Lease, Landlord will not unreasonably withhold consent to an
assignment of this Lease for any of the unexpired portion of the Term to an
entity acquiring all or substantially all of the assets of Tenant, provided: (i)
the net assets of the assignee at the time of the assignment shall not be less
than the net assets of Tenant at the time of the signing of this Lease; (ii)
assignee provides Landlord with audited financial statements certifying such net
assets or sufficient financial information to determine the assignee's net
worth; (iii} such assignee does not adversely affect the quality and type of
business operation which Tenant has conducted theretofore; (iv) such assignee
shall possess qualifications for the Tenant business substantially equivalent to
those of Tenant and have demonstrated, recognized experience in operating such a
business, including, without limitation, experience in operating a similar
quality retail food business in a first-class regional shopping center; (v)
Landlord is given sufficient information from which to conclude that the Annual
Percentage Rental payable hereunder will not decrease; (vi) Tenant shall pay to
Landlord an assignment fee of One Thousand Dollars ($1,000.00) prior to the
effective date of the assignment, plus all out-of-pocket expenses to reimburse
Landlord for costs and expenses incurred with respect to the assignment,
including, without limitation, review of financial materials, meetings with
representatives of assignor and/or assignee and preparation, review, approval
and execution of the required assignment documentation; (vii) as of the
effective date of the assignment, the Annual Basic Rental shall be increased to
equal the total Annual Basic Rental and Annual Percentage Rental paid or payable
by Tenant for the twelve-month period immediately preceding the assignment, and
the Breakpoint set forth in Section 1.1.H. of this Lease shall be increased
accordingly; (viii) Landlord shall receive, upon execution of its consent,
fifteen percent (15%) of the sale price of Tenant's business being assigned
hereunder (for the avoidance of doubt, Tenant's business means the business of
Tenant in Oviedo, Florida); (ix) such assignee continues to operate the business
conducted in the Premises under the Tenant Trade Name or a trade name acceptable
to Landlord, and in the same manner as Tenant and pursuant to all of the
provisions of this Lease; (x) such assignee shall assume in writing, in form
acceptable to Landlord, all of Tenant's obligations under this Lease; and (xi)
Tenant continues to remain liable on this Lease for the performance of all
terms, including, without limitation, payment of Rental due under this Lease.
Landlord and Tenant acknowledge and agree that it shall not be unreasonable for
Landlord to withhold its consent to an assignment of this Lease if, in
Landlord's sole business judgment, the assignee lacks sufficient business
experience or net worth to successfully operate the business at the Premises in
accordance with the terms, covenants and conditions. of this Lease."
(b)(vi) Before the phrase "out-of-pocket" in lines seven and eight of
the printed Section 16.1.(b)(vi), add the word "reasonable."
(b)(vii) After the word "transfer" in the last line of the printed
Section 16.1.(b)(vii), add the following: ", and the Breakpoint set forth in
Section 1.1.H. of this Lease shall be increased accordingly;"
15
<PAGE>
(b)(x) Delete the following in the first to third lines of the printed
Section 16.1.(b)(x): "the full unamortized amount given to the original Tenant
under this Lease,".
Section 16.2. (The printed Section deals with Transfer of Corporate
Shares):
Add the following to the end of the printed Section 16.2.:
"Notwithstanding anything to the contrary contained in this Section
16.2., any transfers permitted without Landlord's consent under Section 16.1.,
subject to all of the provisions contained in Section 16.1. with regard to
assignments, shall be permitted without Landlord's consent by transfer of stock
under Section 16.2."
Add the following to the end of the printed Section 16.2.:
"Notwithstanding the provisions of this Section 16.2., so long as
Tenant is not in default of any of the terms and conditions of this Lease,
Landlord shall not exercise its right to terminate this Lease with respect to a
transfer of corporate shares by bequest or inheritance between or among the
present majority shareholders of Tenant, to their immediate family (i.e.,
spouses, parents, siblings, children, grandchildren or any spouse of any parent,
sibling, child, or grandchild); provided, however, that upon such transfer by
bequest or inheritance the operation of the business conducted in the Premises
shall be in the same Tenant Trade Name and manner as Tenant and pursuant to all
of the provisions of this Lease. Landlord's consent to the above transfer shall
not waive Landlord's right with respect to any further transfer (except to
another transferee which would be permitted above) of corporate shares by the
aforesaid transferees."
Add the following at the end of the printed Section 16.2.:
"The printed Section 16.2. shall not apply in the event of a public
offering of Tenant's stock on a nationally recognized securities exchange."
"Notwithstanding the provisions of this Section 16.2., so long as
Tenant is not in default of any of the terms and conditions of this Lease,
Landlord shall not exercise its right to terminate this Lease due to a transfer
of Tenant's corporate stock so long as such transfer complies with all of the
provisions contained in Section 16.1.(b).
Section 17.1. (The printed Section deals with "Event of Default"
Defined):
(f) Add the following to the printed Section 17.1(f):
"Notwithstanding anything to the contrary contained in this Section
17.1.(f), Landlord shall give Tenant seven (7) days' notice of late payment of
Rental once only in any one Rental Year during the Term before such late payment
shall constitute an Event of Default hereunder. Upon the second and subsequent
such occurrence in any Rental Year, Landlord shall have the right to proceed
against Tenant and the Premises without such notice"
(g) Delete the word and number "ten (10)", wherever they appear in the
printed Section 17.1.(g) and insert "thirty (30)" in each instance in lieu
thereof.
After the word "times" in the ninth line of the printed Section
17.1.(g), add the words "with respect to the same covenant".
16
<PAGE>
Section 17.2. (The printed Section deals with Remedies):
(a) Delete the words "or without" appearing in the first line of the
printed Section 17.2.(a).
(b) After the word "notice" in the third line of the printed Section
17.2.(b), add the words "and all applicable time to cure."
(c) Delete the phrase "reenter the Premises" appearing in the second
line of the printed Section 17.2.(c), and insert "initiate legal remedies
available to Landlord" in lieu thereof;
(c) Delete the phrases "without the necessity of legal proceedings" and
"without resort to legal process", respectively, as they appear in the printed
Section 17.2.(c).
Before the word "costs" in the first line of the last paragraph of the
printed Section 17.2., add the word "reasonable."
Section 17.3. (The printed Section deals with Damages):
Add the following to the end of the printed Section 17.3.:
"Landlord agrees to use reasonable efforts to relet the Premises so as
to mitigate damages."
Before the word "expenses" in the fourth line of the first paragraph of
the printed Section 17.2., add the word "reasonable."
Section 17.4. (The printed Section deals with Remedies in Event of
Bankruptcy or Other Proceeding):
Delete the last sentence of Section 17.4.(a), and insert in lieu
thereof the following: "Upon the termination of this Lease as provided above,
Landlord may avail itself of any of the remedies available in 17.3. and may
dispossess Tenant by summary proceedings."
Section 18.1. (The printed section deals with Subordination):
Add the following at the end of the printed Section 18.1.:
"Upon the written request of Tenant within sixty (60) calendar days
after the Commencement Date, Landlord shall use its reasonable efforts to obtain
a non-disturbance agreement from Mortgagee in favor of Tenant. Any fee charged
by Mortgagee in connection with obtaining any such non-disturbance agreement
shall be borne solely by Tenant. Landlord agrees, however, to notify Tenant in
the event there is a fee connected therewith, in which event Tenant has the
option to proceed or cancel its request for such non-disturbance agreement."
Section 20.2. (The printed Section deals with Estoppel Certificates):
Delete the words "an acceptable form" in the third line of the printed
Section 20.2. and insert the words "a form requested by Landlord or in the form
attached hereto as Schedule D" in lieu thereof.
Delete the words "required by such party" in the third and fourth lines
of the printed Section 20.2. and insert the words "set forth in Schedule D" in
lieu thereof.
17
<PAGE>
Delete the word and number "ten (10)" wherever they appear in the
printed Section 20.2. and substitute the word and number "twenty (20)" in each
instance in lieu thereof.
Add the following to the end of the printed Section 20.2.:
"At any time and from time to time, within thirty (30) days after
Tenant shall request the same, Landlord will execute, acknowledge and deliver to
Tenant, or such other party as may be designated by Tenant, a certificate
setting forth the commencement and termination dates of the Lease, the amount of
Rental payable by Tenant hereunder and the nature, if any, of any Event of
Default existing as of the date of such certificate."
Section 20.3. (The printed Section deals with Inspections and Access by
Landlord):
After the word "hours" appearing in the second line of the printed
Section 20.3., add the words ", after forty-eight (48) hours' written notice to
Tenant at the Tenant Notice Address, except for emergencies or where Landlord's
daily routine inspections as part of its normal operating procedure do not
materially, adversely affect Tenant's routine use of the Premises,"
Section 20.4. (The printed Section deals with Memorandum of Lease):
Delete the printed Section 20.4., and insert the following in lieu
thereof:
"The parties hereby agree that, upon the request of either party, each
will execute, acknowledge and deliver a short form or memorandum of this Lease
in recordable form. Recording, filing and like charges and any stamp, charge for
recording, transfer or other tax shall be paid by the party requesting
recordation. In the event of termination of this Lease, within thirty (30) days
after written request from Landlord, Tenant agrees to execute, acknowledge and
deliver to Landlord an agreement removing such short form of lease from record.
If Tenant fails to execute such agreement within said thirty-day period or fails
to notify Landlord within said thirty-day period of its reasons for refusing to
execute such agreement, Landlord is hereby authorized to execute and record such
agreement removing the short form of lease from record. This provision shall
survive any termination of this Lease."
Section 20.6. (The printed Section deals with Successors and Assigns):
After the word "Lease" appearing in the fifth line of the printed
Section 20.6., change the period to a comma, and add the following language: "or
such assigns of Tenant to whom the assignment by Tenant does not require the
consent of Landlord pursuant to the provisions of this Lease".
Section 20.7. (The printed Section deals with Compliance With Laws and
Regulations):
Add the following to the end of the printed Section 20.7.:
"Notwithstanding anything to the contrary contained in this Section
20.7., Tenant's obligations hereunder shall be limited to its exercise of the
Permitted Use or its own improvements and those elements of the Premises the
maintenance and repair of which Tenant bears responsibility under Section 9.2.
hereof. If there is a change in any governmental statute, law, rule, order,
regulation or ordinance affecting the Premises which requires the making of a
change to any structural element in the Premises or to any improvement in the
Premises originally required to be installed by Landlord at Landlord's expense,
Landlord shall be responsible for and bear the cost of any such change."
18
<PAGE>
Section 20.17. (The printed Section deals with Corporate Tenants):
Add the following to the end of the printed Section 20.17.:
"If Landlord is a corporation, the undersigned officer of Landlord
hereby warrants and certifies to Tenant that Landlord is a corporation in good
standing and authorized to do business in the State in which the Premises are
located."
Add the following to the end of the printed Section
"The undersigned officer of the corporation executing this Lease,
ROUSE-ORLANDO, INC. (name of signing corporation), hereby further warrants and
certifies to Tenant that the corporation, as Managing Agent, and he/she, as such
officer, are authorized and empowered to execute this Lease on behalf of
Landlord."
Section 20.20. (The printed Section deals with Waiver of Certain
Rights):
Before the word "counterclaim" appearing in the second line of the
first paragraph and the third line of the second paragraph, respectively, of the
printed Section 20.20., insert the word "non-compulsory" in each instance.
Add the following to the end of the printed Section 20.20.:
"Tenant shall only be obligated to waive its right to a jury trial in
the event of a monetary Default or holding over.
Section 20.21. (The printed Section deals with Limitation on Right of
Recovery Against Landlord):
Delete the second paragraph of the printed Section 20.21.
Section 20.22. (The printed Section deals with Survival):
After the word "Tenant" in the fourth line of the printed Section
20.22., add the words "and Landlord".
Section 20.23. (Premises):
(The printed Section deals with Relocation of
Insert the phrase ",one time only during the Term" after the word
"business" in the fourth line of the fifth paragraph of the printed Section
20.23.
Add the following to the end of the printed Section 20.23.:
"Landlord agrees that Tenant shall only be required to relocate the
Premises if Landlord is relocating or expanding the Food Court.
"In the event that Landlord requires Tenant to relocate and provided
Tenant shall have furnished Landlord with the statement referred to in the last
sentence of the sixth paragraph of the printed Section
19
<PAGE>
20.23., Landlord agrees to pay to Tenant the unamortized value, at the time of
such relocation, of Tenant's leasehold improvements which were installed in the
Premises at Tenant's sole cost and expense. Said amortization shall be based on
the straight-line depreciation method allowed by the Internal Revenue Code
(1954, as amended) from the date of installation until the date of relocation.
The unamortized value of Tenant's leasehold improvements will be paid to Tenant
within thirty (30) days after the relocation date."
Section 20.24. (The printed Section deals with Landlord's Option to
Terminate):
Delete the printed Section 20.24.
Section 20.25. (The printed Section deals with Financing Contingency):
Delete the printed Section 20.25.
Add the following as new sections to the Lease:
"Section 21.1. Products Liability Insurance and Liquor Liability
Insurance.
During the Term Tenant shall, at its expense, take out and keep in
force a policy of products liability insurance in an amount satisfactory to
Landlord. In addition, if at any time during the Term Tenant sells or dispenses
alcoholic beverages pursuant to Section 1.1.F., Tenant shall, at its expense,
take out and keep in force, a policy of liquor liability insurance with limits,
for each occurrence, of not less than One Million Dollars ($1,000,000). Tenant
shall comply in all respects with the provisions of Section 13.5. with respect
to any such insurance and shall name Landlord and/or its designee(s) as
additional insured(s)."
"Section 21.2. The Food Court.
Landlord shall provide a common eating area (the "Food Court")
containing tables, chairs and other facilities or furnishings as Landlord may
deem necessary for the non-exclusive use of Tenant's customers, together with
janitorial, bussing and garbage removal services. The Food Court shall be kept
in good repair and maintained in a clean, orderly and attractive condition.
Landlord may, in its sole discretion, modify or relocate the Food Court from
time to time.
A. In consideration of the provision of the Food Court for use by
Tenant's customers, Tenant shall pay Landlord, as Additional Rental, an amount
calculated as follows and subject to adjustment as provided in B. below:
(a) In the period from the Commencement Date through the end of the
initial calendar year of the Term, Tenant shall pay to Landlord on the first day
of each calendar month an amount determined by multiplying Twenty Dollars
($20.00) by Tenant's Floor Area and dividing the product thus obtained by twelve
(12), the first such payment to include also any prorated amount for the period
from the date of the commencement of the Term to the first day of the first full
calendar month in the Term (the "Initial Food Court Charge").
(b) In the succeeding calendar year of the Term, Tenant shall pay to
Landlord on the first day of each calendar month a sum equal to an amount
determined by increasing the Initial Food Court Charge by the greater of (i)
four percent (4%) or (ii) the change in the Consumer Price index for All Urban
Consumers (U.S. City Average) published by the Bureau of Labor Statistics of the
United States
20
<PAGE>
Department of Labor (the "Consumer Price Index") for the December immediately
prior to the year for which the adjustment is being made as compared to the
December Consumer Price Index reported for the preceding year (the "Annual Food
Court Charge"). In each subsequent year, Tenant's Annual Food Court Charge shall
be a sum equal to Tenant's Annual Food Court Charge for the prior calendar year
adjusted by the greater of (i) 4% or (ii) the Consumer Price Index for the
December immediately prior to the year for which the adjustment is being made as
compared to the December Consumer Price Index reported for the preceding year.
If during the Term the Consumer Price Index is changed or discontinued,
Landlord shall choose a comparable index, formula or other means of measurement
of the relative purchasing power of the dollar and such substitute index,
formula or other means shall be utilized in place of the Consumer Price Index as
it had been originally designated in this Lease.
Notwithstanding anything to the contrary contained herein, increases in
the Annual Food Court Charge for any year shall not exceed ten percent (10%) of
the Food Court Charge for the preceding year.
B. In the event that the amount payable by Tenant in any calendar year
(or the initial calendar year) is less than two and one-half percent (1/2%) of
Tenant's Gross Sales for the same period, and disclosed in its annual statement
of Gross Sales to Landlord (in accordance with the printed Section 5.6.), Tenant
shall pay Landlord, the difference between what Tenant has paid and two and
one-half percent (2 4%) of its Gross Sales which amount shall be paid at the
same time Tenant delivers its annual statement of Gross Sales to Landlord."
"Section 21.3. Quality Control.
For the purpose of maintaining a uniform and consistent quality of
merchandise and merchandising and for the mutual protection of all of The Food
Court Tenants, Tenant agrees with Landlord as follows:
(a) Landlord shall have the right to establish and from time to time
modify standards of merchandise and standards of merchandising applicable to all
of the Food Court Tenants and Tenant shall at all times comply with and meet
such standards then in effect.
(b) Tenant will remove from the Premises any food or other merchandise
which, in the judgment of Landlord, does not meet the aforesaid standards, when
and as directed by Landlord's Food Court manager or mall manager.
(c) Tenant shall require its employees, at all times while working in
the Premises, to dress in a uniform manner, which uniform shall be chosen by
Tenant and shall be subject to the approval of Landlord. Tenant shall require
its employees to have a neat and clean appearance and all attire worn shall be
clean and in good repair.
(d) All complaints against Tenant received by Landlord from customers
will be promptly adjusted and satisfied to the satisfaction of the customer
involved or Landlord's Food Court manager or mall manager.
(e) Tenant shall comply with the oral or written directions of
Landlord's Food Court manager or mall manager with respect to any of the matters
mentioned in clauses (b) and (d) above within three (3) days after such
directions are given, and if the matter shall not be corrected to the
satisfaction of Landlord's Food Court manager or mall manager within such
period, Landlord shall have
21
<PAGE>
the right to terminate this Lease effective as of the last day of the calendar
month during which said three (3) day period shall have expired."
22
<PAGE>
THIS LEASE AGREEMENT CONTAINS IN SECTION 20.20. A MUTUAL WAIVER BY THE
PARTIES OF THE RIGHT TO A JURY TRIAL IN CERTAIN ACTIONS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
hereby have executed this Lease under their respective hands as of the day and
year first above written.
WITNESS: ROUSE-ORLANDO, INC., Landlord
- -------------------------------- -----------------------------------------
WITNESS:
By: (SEAL)
- -------------------------------- --------------------------------
Vice-President
WITNESS: ATTEST:
- --------------------------------
WITNESS:
- -------------------------------- -----------------------------------------
Assistant Secretary
(CORPORATE SEAL)
WITNESSES: PIZZERIA REGINA FLORIDA, INC., Tenant
(a/k/a Pizzeria Regina of Florida, Inc.)\
By: (SEAL)
- -------------------------------- --------------------------------
President
ATTEST:
- --------------------------------
------------------------------------------
Secretary
(CORPORATE SEAL)
23
<PAGE>
SCHEDULE A-1
------------
LEGAL DESCRIPTION OF SHOPPING CENTER AREA
-----------------------------------------
Tract 1, Oviedo Crossing - The Marketplace Replat, according to the Plat thereof
as recorded in Plat Book 51, pages 50 and 51 of the Public Records of Seminole
County, Florida, further described as follows:
A tract of land lying in Section 17, Township 21 South, Range 31 East, described
as follows:
Commence at the southeast corner of Oviedo Crossing Terrace according
to the Plat of Oviedo Crossing - Phase 1B as recorded in Plat Book 47,
pages 100 through 101 of the Public Records of Seminole County,
Florida, for a point of reference, said point lies on a non-tangent
curve concave southeasterly; thence run northeasterly, along the
easterly fight-of-way line of said Oviedo Crossing Terrace and said
curve having a radius length of 1200.00 feet, a central angle of
29(degree)41'15", an arc length of 621.78 feet, a chord length of
614.84 feet and a chord bearing of north 14(degree)15'42" east to the
point of reverse curvature of a curve concave westerly; thence
departing said easterly right-of-way line, run northerly along said
curve, having a radius length of 570.00 feet, a central angle of
46(degree)03'47", an arc length of 458.25 feet, a chord length of
446.01 feet and a chord bearing of north 06(degree)04'26" east to the
point of beginning; thence run northwesterly, along said curve, having
a radius length of 570.00 feet, a central angle of 2(degree)55'39", an
arc length of 29.12 feet, a chord length of 29.12 feet and a chord
bearing of north 18(degree)25'17" west; thence run north
66(degree)29'38" east, 14.26 feet; thence run north 66(degree)57'25"
east, 40.30 feet to the point of curvature of a curve concave
northwesterly; thence run northeasterly along said curve, having a
radius length of 97.00 feet, a central angle of 33(degree)53'56", an
arc length of 57.39 feet, a chord length of 56.56 feet and a chord
bearing of north 50(degree)00'27" east to the point of tangency; thence
run north 33(degree)03'29" east, 61.62 feet; thence run south
56(degree) 38'39" east, 45.83 feet to the point of curvature of a curve
concave northerly; thence run easterly along said curve, having a
radius length of 164.00 feet, a central angle of 83(degree)53'03", an
arc length of 240.11 feet, a chord length of 219.23 feet and a chord
bearing of north 81(degree)24'49" east to the point of tangency; thence
run north 39(degree)28'18' east, 143.06 feet to the point of curvature
of a curve concave northwesterly; thence run northeasterly along said
curve, having a radius length of 695.00 feet, a central angle of
29(degree)04'52", an arc length of 352.75 feet, a chord length of
348.98 feet and a chord bearing of north 24(degree)55'52" east; thence
run north 45(degree)00'00" west, 368.78 feet to a point on a curve
concave southeasterly; thence run northeasterly along said curve,
having a radius length of 135.00 feet, a central angle of
24(degree)14'25", an arc length of 57.11 feet, a chord length of 56.69
feet and a chord bearing of north 38(degree)21'20" east to the point of
tangency; thence run north 50(degree)28'33" east, 45.18 feet; thence
run north 39(degree)31'27" west, 59.01 feet; thence run south
87(degree)56'40" west, 169.18 feet; thence run south 02(degree)03'20"
east, 55.50 feet; thence run south 87(degree)56'40" west, 395.58
Schedule A-1-1
<PAGE>
feet; thence run south 02(degree)03'20" east, 72.04 feet; thence run
south 90(degree)00'00" west, 141.47 feet; thence run south
00(degree)00'00" east, 30.00 feet; thence run south 90(degree)00'00"
west, 133.59 feet to a point on a curve concave northwesterly; thence
run southwesterly along said curve, having a radius length of 581.00
feet, a central angle of 1(degree)04'24", an arc length of 10.88 feet,
a chord length of 10.88 feet and a chord bearing of south
30(degree)55'11" west to the point of reverse curvature of a curve
concave southeasterly; thence run southwesterly along said curve,
having a radius length of 191.92 feet, a central angle of
6(degree)59'18", an arc length of 23.41 feet, a chord length of 23.39
feet and a chord bearing of south 27(degree)57'44" west; thence run
south 90(degree)00'00" west, 48.50 feet to a point on a curve concave
northeasterly; thence run southeasterly along said curve, having a
radius length of 236.92 feet, a central angle of 83(degree)06'37", an
arc length of 343.66 feet, a chord length of 314.32 feet and a chord
bearing of south 21(degree)57'04" east to the point of tangency; thence
run south 63(degree)30'23" east, 145.25 feet to the point of curvature
of a curve concave southwesterly thence run southeasterly along said
curve, having a radius length of 618.00 feet, a central angle of
6(degree)51'44", an arc length of 74.02 feet, a chord length of 73.97
feet and a chord bearing of south 60(degree)04'31" east to the point of
tangency; thence run south 56(degree)38'39" east, 351.35 feet; thence
run south 33(degree)03'29" west, 61.80 feet to the point of curvature
of a curve concave northwesterly; thence run southwesterly along said
curve, having a radius length of 61.00 feet, a central angle of
33(degree)53'56", an arc length of 36.09 feet, a chord length of 35.57
feet and a chord bearing of south 50(degree)00'27" west to the point of
tangency; thence run south 66(degree)57'25" west, 40.44 feet; thence
run south 66(degree)29'38" west, 13.27 feet to a point on a curve
concave southwesterly; thence run northwesterly along said curve,
having a radius length of 570.00 feet, a central angle of
39(degree)55'29", an arc length of 397.19 feet, a chord length of
389.20 feet and a chord bearing on north 43(degree)28'06" west to the
point of tangency; thence run north 63(degree)30'23" west, 338.81 feet
to the point of curvature of a curve concave easterly; thence run
northerly along said curve, having a radius length of 763.65 feet, a
central angle of 182(degree)56'55", an arc length of 2438.37 feet, a
chord length of 1526.79 feet and a chord bearing of north
27(degree)58'04" east to the point of reverse curvature of a curve
concave northerly; thence run easterly along said curve, having a
radius length of 757.00 feet, a central angle of 76(degree)58'42", an
arc length of 1017.05 feet, a chord length of 942.26 feet and a chord
bearing of north 80(degree)57'11" east to the point of reverse
curvature of a curve concave southwesterly; thence run southeasterly
along said curve, having a radius length of 350.00 feet, a central
angle of 134(degree)43'33", an arc length of 822.99 feet, a chord
length of 646.07 feet and a chord bearing of south 70(degree)10'23"
east to the point of tangency; thence run south 02(degree)48'37" east,
155.90 feet to the point of curvature of a curve concave northeasterly;
thence run southeasterly along said curve, having a radius length of
650.00 feet, a central angle of 14(degree)46'33", an arc length of
167.63 feet, a chord length of 167.16 feet and a chord bearing of south
10(degree)11'54" east; thence run south 73(degree)58'38" west, 127.14
feet; thence run north 16(degree)01'22" west, 48.98 feet; thence run
south 73(degree)58'38" west, 42.51 feet; thence run south
28(degree)46'42" west, 200.99 feet; thence run north 50(degree)56'37"
west, 77.13 feet; thence run south
Schedule A-1-2
<PAGE>
39(degree)03'23" west, 286.50 feet; thence run north 50(degree)56'37"
west, 59.25 feet; thence run south 39(degree)03'23" west, 113.50 feet;
thence run south 50(degree)56'37" east, 399.96 feet; thence run south
39(degree)03'23" west, 419.14 feet to a point on a non-tangent curve
concave northeasterly; thence run southeasterly along said curve,
having a radius length of 164.00 feet, a central angle of
6(degree)11'28", an arc length of 17.72 feet, a chord length of 17.71
feet and a chord bearing of south 51(degree)36'02" east to the point of
tangency; thence run south 54(degree)41'46" east, 224.87 feet to the
point of curvature of a curve concave northerly; thence run easterly
along said curve, having a radius length of 162.00 feet, a central
angle of 66(degree)58'00", an arc length of 189.34 feet, a chord length
of 178.75 feet and a chord bearing of south 88(degree)10'46" east to
the point of tangency; thence run north 58(degree)20'14" east, 146.49
feet to the point of curvature of a curve concave northwesterly; thence
run northeasterly along said curve, having a radius length of 162.00
feet, a central angle of 21(degree)38'35", an arc length of 61.19 feet,
a chord length of 60.83 feet and a chord bearing of north
47(degree)30'56" east to the point of tangency; thence run north
36(degree)41'39" east, 244.14 feet to the point of curvature of a curve
concave northwesterly; thence run northeasterly along said curve,
having a radius length of 162.00 feet, a central angle of
15(degree)49'09", an arc length of 44.73 feet, a chord length of 44.59
feet and a chord bearing of north 28(degree)47'04" east to the point of
tangency; thence run north 20(degree)52'30" east, 221.81 feet to the
point of curvature of a curve concave southwesterly; thence run
northwesterly along said curve, having a radius length of 164.00 feet,
a central angle of 72(degree)02'15", an arc length of 206.20 feet, a
chord length of 192.88 feet and a chord bearing of north
15(degree)08'38" west to the point of reverse curvature of a curve
concave northeasterly; thence run northwesterly along said curve,
having a radius length of 738.00 feet, a central angle of
12(degree)12'12", an arc length of 157.18 feet, a chord length of
156.89 feet and a chord bearing of north 45(degree)03'39" west to the
point of tangency; thence run north 38(degree)57'34" west, 200.54 feet
to the point of curvature of a curve concave northeasterly; thence run
northwesterly along said curve, having a radius length of 61.30 feet, a
central angle of 22(degree)56'11", an arc length of 24.54 feet, a chord
length of 24.38 feet and a chord bearing of north 27(degree)29'28" west
to the point of tangency; thence run north 16(degree)01'22" west, 25.30
feet; thence run north 73(degree)58'38" east, 114.87 feet to a point on
a curve concave northeasterly; thence run southeasterly along said
curve, having a radius length of 650.00 feet, a central angle of
41(degree)24'22", an arc length of 469.74 feet, a chord length of
459.58 feet and a chord bearing of south 41(degree)28'04" east; thence
run south 20(degree)52'30" west, 48.56 feet; thence run south
17(degree)24'41" west, 124.59 feet to a point on the westerly line of a
drainage easement as recorded in official records book 2301, pages
1177-1184) of said Public Records; thence run along the westerly line
of said drainage easement the following courses: south 20(degree)52'30"
west, 290.18 feet; south 36(degree)41'39" west, 311.81 feet; south
58(degree)20'14" west, 321.27 feet to the most easterly corner of Tract
"E" of the aforesaid Plat of Oviedo Crossing Phase 1; thence run north
54(degree)41'46" west, along the northerly line of said Tract "E",
543.96 feet to a point on the east line of Tract "D" of said Plat of
Oviedo Crossing - Phase 1A; thence run along the east and north lines
of said Tract "D"
Schedule A-1-3
<PAGE>
the following courses: north 24(degree)47'37" east, 83.65 feet to the
point of curvature of a curve concave southwesterly; thence run
northwesterly, along said curve, having a radius length of 200.00 feet,
a central angle of 70(degree)17'57", an arc length of 245.39 feet, a
chord length of 230.29 feet and a chord bearing of north
10(degree)21'22" west to the point of tangency; thence run north
45(degree)30'19" west, 87.70 feet to the point of curvature of a curve
concave southerly; thence run westerly along said curve, having a
radius length of 110.00 feet, a central angle of 99(degree)35'26", an
arc length of 191.20 feet, a chord length of 168.02 feet and a chord
bearing of south 84(degree)41'58" west; thence departing the north line
of said Tract "D", continue southwesterly along said curve, having a
radius length of 110.00 feet, a central angle of 30(degree)44'29", an
arc length of 59.02 feet, a chord length of 58.31 feet and a chord
bearing of south 19(degree)32'01" west to the point of tangency; thence
run south 04(degree)09'47" west, 185.99 feet to the point of curvature
of a curve concave northwesterly; thence run southwesterly along said
curve, having a radius length of 758.00 feet, a central angle of
35(degree)18'45", an arc length of 467.17 feet, a chord length of
459.81 feet and a chord bearing of south 21(degree)49'09" west to the
point of tangency; thence run south 39(degree)28'32" west, 278.46 feet;
thence run south 90(degree)00'00" west, 335.46 feet to the point of
beginning.
The above described tract of land lies in Seminole County Florida and contains
67.995 acres, more or less.
Schedule A-1-4
<PAGE>
SCHEDULE A-2
------------
LEGAL DESCRIPTION OF SHOPPING CENTER
------------------------------------
(ADJACENT PARCELS)
Tract 2, Oviedo Crossing - The Marketplace Replat, according to the Plat thereof
as recorded in Plat Book 51, pages 50 and 51 of the Public Records of Seminole
County, Florida, further described as follows:
A tract of land lying in Section 17, Township 21 South, Range 31 East, described
as follows:
Commence at the southeast comer of Oviedo Crossing Terrace according to
the Plat of Oviedo Crossing - Phase 1B as recorded in Plat Book 47,
pages 100 through 101 of the Public Records of Seminole County,
Florida, for a point of reference, said point lies on a non-tangent
curve concave southeasterly; thence run northeasterly, along the
easterly right-of-way line of said Oviedo Crossing Terrace and said
curve, having a radius length of 1200.00 feet, a central angle of
29(degree)41'15", an arc length of 621.78 feet, a chord length of
614.84 feet and a chord bearing of north 14(degree)15'42" east to the
point of reverse curvature of a curve concave westerly; thence
departing said easterly right-of-way line run northerly along said
curve, having a radius length of 570.00 feet, a central angle of
48(degree)59'26", an arc length of 487.37 feet, a chord length of
472.66 feet and a chord bearing of north 04(degree)36'37" east to the
point of beginning; thence run northwesterly along said curve, having a
radius length of 570.00 feet, a central angle of 03(degree)37'16", an
arc length of 36.02 feet, a chord length of 36.02 feet and a chord
bearing on north 21(degree)41'44" west; thence run north
66(degree)29'38" east, 13.27 feet; thence run north 66(degree)57'25"
east, 40.44 feet to the point of curvature of a curve concave
northwesterly; thence run northeasterly along said curve, having a
radius length of 61.00 feet, a central angle of 33(degree)53'56", an
arc length of 36.09 feet, a chord length of 35.57 feet and a chord
bearing of north 50(degree)00'27" east to the point of tangency; thence
run north 33(degree)03'29" east, 61.80 feet; thence run north
56(degree)38'39" west, 351.35 feet to the point of curvature of a curve
concave southwesterly; thence run northwesterly along said curve,
having a radius length of 618.00 feet, a central angle of
6(degree)51'44", an arc length of 74.02 feet, a chord length of 73.97
feet and a chord bearing of north 60(degree)04'31" west to the point of
tangency; thence run north 63(degree)30'23" west; 145.25 feet to the
point of curvature of a curve concave easterly; thence run
northwesterly along said curve, having a radius length of 236.92 feet,
a central angle of 83(degree)06'37", an arc length of 343.66 feet, a
chord length of 314.32 feet and a chord bearing of north
21(degree)57'04" west; thence run north 90(degree)00'00" east, 48.50
feet to a point on a curve concave southeasterly; thence run
northeasterly along said curve, having a radius length of 191.92 feet,
a central angle of 6(degree)59'18", an arc length of 23.41 feet, a
chord length of 23.39 feet and a chord bearing of north
27(degree)57'44" east to the point of reverse curvature of a curve
concave northwesterly; thence run northeasterly along
Schedule A-2-1
<PAGE>
said curve, having a radius length of 581.00 feet, a central angle of
01(degree)04'24", an arc length of 10.88 feet, a chord length of 10.88
feet and a chord bearing of north 30(degree)55'11" east; thence run
north 90(degree)00'00" east, 133.59 feet; thence run north
00(degree)00'00" east, 30.00 feet; thence run north 90(degree)00'00"
east, 141.47 feet; thence run north 02(degree)03'20" west, 72.04 feet;
thence run north 87(degree)56'40" east, 395.58 feet; thence run north
02(degree)03'20" west, 55.50 feet; thence run north 87(degree)56'40"
east. 169.18 feet; thence run south 39(degree)31'27" east, 59.01 feet;
thence run south 50(degree)28'33" west, 45.18 feet to the point of
curvature of a curve concave southeasterly; thence run southwesterly
along said curve, having a radius length of 135.00 feet, a central
angle of 24(degree)14'25", an arc length of 57.11 feet, a chord length
of 56.69 feet and a chord bearing of south 38(degree)21'20" west;
thence run south 45(degree)00'00" east, 368.78 feet to a point on a
curve concave northwesterly; thence run southwesterly along said curve,
having a radius length of 695.00 feet, a central angle of
29(degree)04'52", an arc length of 352.75 feet, a chord length of
348.98 feet and a chord bearing of south 24(degree)55'52" west to the
point of tangency; thence run south 39(degree)28'18" west, 143.06 feet
to the point of curvature of a curve concave northerly; thence run
westerly along said curve, having a radius length of 164.00 feet, a
central angle of 83(degree)53'03", an arc length of 240.11 feet, a
chord length of 219.23 feet and a chord bearing of south
81(degree)24'49" west to the point of tangency; thence run north
56(degree)38'39" west, 45.83 feet; thence run south 33(degree)03'29"
west, 61.62 feet to the point of curvature of a curve concave
northwesterly; thence run southwesterly along said curve, having a
radius length of 97.00 feet, a central angle of 33(degree)53'56", an
arc length of 57.39 feet, a chord length of 56.56 feet and a chord
bearing of south 50(degree)00'27" west to the point of tangency; thence
run south 66(degree)57'25" west, 40.30 feet; thence run south
66(degree)29'38" west, 14.26 feet to the point of beginning.
The above described tract of land lies in the City of Oviedo, Seminole County,
Florida and contains 14.206 acres more or less.
Tract 3, Oviedo Crossing - The Marketplace Replat, according to the Plat thereof
as recorded in Plat Book 51, pages 50 and 51 of the Public Records of Seminole
County, Florida, further described as follows:
A tract of land lying in Section 17, Township 21 South, Range 31 East, described
as follows:
Commence at the southeast corner of Oviedo Crossing Terrace according
to the Plat of Oviedo Crossing - Phase 1B as recorded in Plat Book 47,
pages 100 through 101 of the Public Records of Seminole County,
Florida, for a point of reference, said point lies on a non-tangent
curve concave southeasterly; thence run northeasterly, along the
easterly right-of-way line of said Oviedo Crossing Terrace and said
curve, having a radius length of 1200.00 feet, a central angle of
29(degree)41'15", an arc length of 621.78 feet, a chord length of
614.84 feet and a chord bearing of north 14(degree)15'42" east to the
point of reverse curvature of a curve concave westerly; thence
departing said easterly right-of-way line run northerly
Schedule A-2-2
<PAGE>
along said curve, having a radius length of 570.00 feet, a central
angle of 92(degree)32'10", an arc length of 920.58 feet, a chord length
of 823.74 feet and a chord bearing of north 17(degree)09'46" west to
the point of tangency; thence run north 63(degree)30'23" west, 338.81
feet to the point of curvature of a curve concave easterly; thence run
northerly along said curve, having a radius length of 763.65 feet, a
central angle of 182(degree)56'55", an arc length of 2438.37 feet, a
chord length of 1526.79 feet and a chord bearing of north
27(degree)58'04" east to the point of reverse curvature of a curve
concave northerly; thence run easterly, along said curve, having a
radius length of 757.00 feet, a central angle of 76(degree)58'42", an
arc length of 1017.05 feet, a chord length of 942.26 feet and a chord
bearing of north 80(degree)57'11" east to the point of reverse
curvature of a curve concave southwesterly; thence run southeasterly
along said curve, having a radius length of 350.00 feet, a central
angle of 134(degree)43'33", an arc length of 822.99 feet, a chord
length of 646.07 feet and a chord bearing of south 70(degree)10'23"
east to the point of tangency; thence run south 02(degree)48'37" east,
155.90 feet to the point of curvature of a curve concave northeasterly;
thence run southeasterly along said curve, having a radius length of
650.00 feet, a central angle of 14(degree)46'33 ", an arc length of
167.63 feet, a chord length of 167.16 feet and a chord bearing of south
10(degree)11'54" east to the point of beginning; thence continue
southeasterly along said curve, having a radius length of 650.00 feet,
a central angle of 3(degree)10'43", an arc length of 36.06 feet, a
chord length of 36.05 feet and a chord bearing of south
19(degree)10'32" east; thence run south 73(degree)58'38" west, 114.87
feet; thence run south 16(degree)01'22" east, 25.30 feet to the point
of curvature of a curve concave northeasterly; thence run southeasterly
along said curve, having a radius length of 61.30 feet, a central angle
of 22(degree)56'11", an arc length of 24.54 feet, a chord length of
24.38 feet and a chord bearing of south 27(degree)29'28" east to the
point of tangency; thence run south 38(degree)57'34" east, 200.54 feet
to the point of a curvature of a curve concave northeasterly; thence
run southeasterly along said curve, having a radius length of 738.00
feet, a central angle of 12(degree)12'12", an arc length of 157.18
feet, a chord length of 156.89 feet and a chord bearing of south
45(degree)03'39" east to the point of reverse curvature of a curve
concave southwesterly; thence run southeasterly along said curve,
having a radius length of 164.00 feet, a central angle of
72(degree)02'15", an arc length of 206.20 feet, a chord length of
192.88 feet and a chord bearing of south 15(degree)08'38" east to the
point of tangency; thence run south 20(degree)52'30" west, 221.81 feet
to the point of curvature of a curve concave northwesterly; thence run
southwesterly along said curve,' having a radius length of 162.00 feet,
a central angle of 15(degree)49'09", an arc length of 44.73 feet, a
chord length of 44.59 feet and a chord bearing of south
28(degree)47'04" west to the point of tangency; thence run south
36(degree)41'39" west, 244.14 feet to the point of curvature of a curve
concave northwesterly; thence run southwesterly along said curve,
having a radius length of 162.00 feet, a central angle of
21(degree)38'35", an arc length of 61.19 feet, a chord length of 60.83
feet and a chord bearing of south 47(degree)30'56" west to the point of
tangency; thence run south 58(degree)20'14" west, 146.49 feet to the
point of curvature of a curve concave northerly; thence run westerly
along said curve, having a radius length of 162.00 feet, a central
angle of 66(degree)58'00", an arc
Schedule A-2-3
<PAGE>
length of 189.34 feet, a chord length of 178.75 feet and a chord
bearing of north 88(degree)10'46" west to the point of tangency; thence
run north 54(degree)41'46" west, 224.87 feet to the point of curvature
of a curve concave northeasterly; thence run northwesterly along said
curve, having a radius length of 164.00 feet, a central angle of
6(degree)11'28", an arc length of 17.72 feet, a chord length of 17.71
feet and a chord bearing of north 51(degree)36'02" west; thence run
north 39(degree)03'23" east, 419.14 feet; thence run north
50(degree)56'37" west, 399.96 feet; thence run north 39(degree)03'23"
east, 113.50 feet; thence run south 50(degree)56'37" east, 59.25 feet;
thence run north 39(degree)03'23" east, 286.50 feet; thence run south
50(degree)56'37" east, 77.13 feet; thence run north 28(degree)46'42"
east, 200.99 feet; thence run north 73(degree)58'38" east, 42.51 feet;
thence run south 16(degree)01'22" east, 48.98 feet; thence run north
73(degree)58'38" east, 127.14 feet to the point of beginning.
The above described tract of land lies in the City of Oviedo, Seminole County
Florida and contains 12.934 acres, more or less.
Schedule A-2-4
<PAGE>
SCHEDULE B
FOOD COURT
DESCRIPTION OF LANDLORD AND TENANT WORK
THE OVIEDO MARKETPLACE
OVIEDO, FLORIDA
August 21, 1997
<PAGE>
SCHEDULE B
FOOD COURT
DESCRIPTION OF LANDLORD AND TENANT WORK
THE OVIEDO MARKETPLACE
OVIEDO, FLORIDA
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C> <C>
PREFACE..........................................................................................1
A. WORK TO BE PERFORMED BY LANDLORD IN LANDLORD'S
BUILDING................................................................................1
B. WORK TO BE PERFORMED BY LANDLORD IN PREMISES............................................2
1. Floor Slabs.......................................................................2
2. Demising Partitions...............................................................2
3. Egress Door.......................................................................3
4. Water Service.....................................................................3
5. Sewer Service.....................................................................3
6. Gas Service.......................................................................3
7. Exhaust and Make Up Air...........................................................3
8. HVAC..............................................................................3
9. Fire Protection System............................................................4
10. Telephone Conduit.................................................................4
11. Electrical Service................................................................4
C. WORK TO BE PERFORMED BY TENANT IN PREMISES..............................................4
1. Construction Permits..............................................................4
2. Utilities by Tenant...............................................................5
3. Store Construction................................................................5
4. Egress Door Hardware..............................................................5
5. Non-Combustible Construction......................................................5
6. Ceilings..........................................................................5
7. Store Fixture Supports............................................................6
8. Tenant Mezzanines.................................................................6
9. Tenant Mechanical System..........................................................6
10. Tenant Electrical System..........................................................7
11. Fire Protection...................................................................7
-i-
<PAGE>
12. Fireproofing......................................................................8
13. Discipline........................................................................8
14. Character of Employees............................................................8
15. Clean-Up..........................................................................8
16. Tenant Deliveries.................................................................9
D. WORK BY LANDLORD IN PREMISES AT TENANT'S EXPENSE........................................9
1. General...........................................................................9
2. Violations........................................................................11
E. PROCEDURE...............................................................................11
</TABLE>
-ii-
<PAGE>
SCHEDULE B
FAST FOOD
THE OVIEDO MARKETPLACE
OVIEDO, FLORIDA
PREFACE:
This Schedule B is intended to describe the obligations of Landlord and
Tenant in the design and construction of the Premises.
Landlord's work will be limited to the work described in Sections A and
B. Work described in Section D will be performed by Landlord at Tenant's
expense.
The work of Tenant described in Section C is intended to provide
Premises finished in accordance with Tenant's drawings as approved in writing by
Landlord. Tenant must hire an Architect and a General Contractor; Tenant is
prohibited from acting as its own Architect or General Contractor. Tenant agrees
to abide by Landlord's construction rules and regulations which may be issued
from time to time and shall cause Tenant's Contractors to abide by the same
rules and regulations.
In order to insure an orderly and aesthetically coordinated design, and
to insure these design requirements are understood by tenants, their designers,
contractors and other representatives, reference is to be made to the Design
Criteria for Tenant Improvements, Schedule "C." In order to coordinate Tenant's
mechanical and electrical design and to insure the overall capacity and balance
of Landlord installed mechanical and electrical systems, Tenant must adhere to
the requirements of this Schedule B and the Design Criteria for Tenant
Improvements, Schedule "C." In case of any discrepancies between Schedule B and
Schedule C, Schedule B will take precedence.
All Tenant construction shall be in accordance with the requirements of
all applicable codes, ordinances, rules and regulations and all authorities
having jurisdiction over the work, including the applicable requirements of the
Handicapped Code and Landlord's insurance carrier.
Within ten (10) days of the Commencement Date, Tenant shall give
Landlord copies of all inspection reports, certificates, and other documents as
required by Landlord and authorities having jurisdiction over the project.
Section 21.1. A non-combustible structure including columns, girders,
beams, joists, roof deck and floors.
Section 21.2. Insulation and roofing.
<PAGE>
Section 21.3. Exterior walls including glass and glazing where
indicated on the Lease Outline Drawing.
Section 21.4. Enclosed mail, courts, arcades and public corridors which
are climate controlled and provided with a fire protection system and which may
contain landscaping, seating, decorative treatment, area for promotional
features, and structures leased for retail sales.
Section 21.5. Exits from the public areas to the exterior.
Section 21.6. Public toilet facilities and public pay telephones.
Section 21.7. Landlord will provide and install a meter socket to allow
Landlord to check electrical consumption. The meter socket will be installed in
Landlord's electrical closet and/or alcove. For additional electrical
information, see Sections B, C and D.
Section 21.8. Landlord will arrange with the telephone utility company
to provide service at one or more locations within Landlord's Building for
Tenant's use. See Section B herein.
Section 21.9. Gas is available for fast food tenants and will be
brought to a common distribution point at or near service courts 1 and 5 outside
of Landlord's Building adjacent to the food court as shown on the Lease Outline
Drawing. Tenant must arrange for service directly from local utility.
Section 22.1. Floor Slabs
Concrete floor slab, with a smooth troweled finish, at one elevation.
No depressions or recesses in any concrete floor slabs will be permitted.
Sprayed on fire protection shall be applied to columns, beams and girders that
support cinema above.
Section 22.2. Demising Partitions
Demising partitions are provided between Tenant and other tenants,
and/or Tenant and exit and/or service corridors, of the construction type shown
on the Lease Outline Drawings. Partitions separating the Premises from other
tenant premises will consist of metal studs only (no drywall). Tenant
construction shall provide a one (1) hour separation. Partitions separating the
Premises from service corridors or other Landlord areas will have dry-wall on
the Landlord side only or CMU wall
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 2 of 14
<PAGE>
without studs. Landlord will provide a tiled demising pier as detailed in
Schedule C and as indicated on the Lease Outline Drawing. See Lease Outline
Drawing.
Section 22.3. Egress Door
Landlord will provide a service door without hardware, other than butt
hinges. See Section C herein. The location of such egress door, if any, will be
indicated on the Lease Outline Drawing.
Section 22.4. Water Service
One (1) one and one-half inch (1-1/2") domestic cold water service
shall be brought to one point either within, adjacent to, or below the Premises.
The approximate location of such service shall be indicated on the Lease Outline
Drawing.
Section 22.5. Sewer Service
One (1) four inch (4") sanitary sewer connection will be installed
below the Premises and one (1) two inch (2") vent will be installed either
adjacent to or within the Premises. The approximate location of these services
shall be indicated on the Lease Outline Drawing.
Section 22.6. Gas Service
Landlord will provide one (1) two and one half (2 1/2) inch medium
pressure gas line to the Premises.
Section 22.7. Exhaust and Make Up Air
Landlord has provided a suggested routing for the Tenant supplied
grease exhaust ductwork. Landlord will provide, at Tenant's expense (estimated
to be $10,000 per tenant) the vertical (only) portion of the ductwork and two
(2) hour rated shaft from the ceiling of the lower level thru the Cinema roof.
Ductwork will be capped at both ends for Tenants connection to Tenant's ductwork
at the lower level and on the roof. The Tenant's hood must be sized for a
capacity of 1,050 CFM to 2000 CFM for the connection to Landlord's grease
exhaust duct riser. Landlord has provided make-up air to the Premises for the
Tenant's hood.
Section 22.8. HVAC
Landlord will provide a condenser water supply and return loop for the
Premises together with a one and one-half inch (1 1/2") capped valve for the
Tenant's
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 3 of 14
<PAGE>
connection. Any additional piping, heat pump, ductwork, diffusers, grilles,
etc., shall be provided by Tenant. See Section C herein.
Internal loads shall be limited to 60 BTUH/per square foot for sensible
cooling (lights, people and equipment).
Section 22.9. Fire Protection System
A fire protection sprinkler system including feed and/or cross mains
and branch lines installed in a grid pattern will be located within the
Premises, at an elevation above the maximum ceiling height as indicated on the
Lease Outline Drawing. One (1) inch plugged outlets in the brinch lines shall be
provided at approximately one (1) per one hundred twenty (120) square feet of
Tenant's Floor Area. Tenant's system must meet the requirements of all local
authorities and Landlord's insurance carrier. See Section C herein.
Section 22.10. Telephone Conduit
Tenant will be provided with one empty one inch (1") telephone conduit
between the telephone service point and the Premises. Tenants must directly
arrange for telephone service.
Section 22.11. Electrical Service
Landlord will provide one (1) empty one and one-half inch (1 1/2")
power conduit from Landlord's tenant meter section to the Premises. Tenant will
be responsible for furnishing and installing the conduit from Tenant's Premises
to Tenant's panel and for furnishing and installing the feeder wire from
Tenant's panel to the Landlord's tenant meter section.
Termination of wires at Landlord's tenant meter section to be by
Landlord (Tenant to coordinate both the installation and termination with
Landlord).
Landlord will furnish and install a meter socket and circuit breaker to
allow for the Power Company to meter electrical consumption on a regular basis.
The meter socket will be installed in Landlord's electrical closet and/or
alcove.
Landlord will provide one (1) 60 ampere, 277/480 volts, 3 phase, 4 wire
service originating from Tenant's distribution board located in the main
electric room. Upgrades to Tenant's service shall be billed to Tenant.
For additional electrical information, see Sections A, C and D.
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 4 of 14
<PAGE>
Section 23.1. Construction Permits
Tenant shall be responsible for obtaining all necessary permits,
including a Certificate of Occupancy for the Premises, and shall be responsible
for payment of all associated fees.
Section 23.2. Utilities by Tenant
Tenant shall directly arrange for and procure at Tenant's expense:
(a) Telephone service between the telephone service point within
Landlord's Building and the Premises.
(b) Connection to Landlord-installed utilities.
(c) A main shut-off valve within the Premises when connecting to
Landlord-installed water service.
(d) A water check meter acceptable to Landlord.
(e) Connection to gas service and piping extension from gas
service point to the Premises. Tenant to provide a gas
submeter at service court (Tenant to contact local Gas Company
for connection and meter).
Section 23.3. Store Construction
Each store shall be designed and installed in accordance with Schedules
"B" and "C." All lease lines facing on enclosed malls, courts, and arcades, as
indicated on the Lease Outline Drawing, shall be considered as Tenant's
storefront. For a description of that portion of work to be performed by
Landlord at Tenant's expense, see Section D herein.
Section 23.4. Egress Door Hardware
Tenant shall furnish and install all hardware other than that supplied
by Landlord. See Section B.
Section 23.5. Non-Combustible Construction
All Tenant construction must be non-combustible including any materials
used above the ceiling or concealed in the walls of the Premises. No PVC will be
allowed.
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 5 of 14
<PAGE>
Section 23.6. Ceilings
Unless otherwise provided in Schedule C, a ceiling shall be installed
throughout the entire Premises. It is Tenant's responsibility to verify that the
ceiling height selected by Tenant is not in conflict with base building
structure, ductwork, mains, etc. The structure of Landlord's Building has been
designed to accept a superimposed loading of four and one-half pounds per square
foot (4-1/2 lbs./s.f.) for overhead installation of Tenant's equipment. Access
(such as access panels) shall be provided by Tenant where Landlord and/or
jurisdictional authorities shall designate. A minimum one (1) hour fire rated
ceiling shall be installed and ceilings shall not exceed the maximum height
indicated on the Lease Outline Drawing.
Section 23.7. Store Fixture Supports
All Tenant improvements other than ceilings and light fixtures, shall
be floor-mounted unless written approval is obtained .from Landlord to support
improvements otherwise.
Section 23.8. Tenant Mezzanines
Mezzanines are not permitted.
Section 23.9. Tenant Mechanical System
(a) Tenant shall furnish and install all piping and all low
velocity ductwork and diffusers for the Premises. Tenant shall
also furnish and install electric service to the Tenant
installed heat pump from Tenant's distribution panel. The
units will require 480 volt, 3 phase, 60 Hz, 3 wire service.
The thermostat for control of the heat pump shall be furnished
and installed by Tenant. Tenant shall install a flow control
valve, factory set at Tenant's maximum condenser water flow
rate. Tenant shall balance the low velocity air distribution
and submit two (2) copies of a certified air balance report to
Landlord. See Section D herein.
(b) No openings for fans, vents, louvers, grilles, or other
devices shall be installed in any demising partition, exterior
wall, floor, or roof without Landlord's prior written
approval. All additional roof openings shall be by Landlord at
Tenant's expense as described in Section D.
(c) If exhaust and make-up air are required, Tenant shall engineer
and install an exhaust and make-up air system, with make-up
air adjustable for balancing up to and including eighty-five
percent (85%) of the exhaust
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 6 of 14
<PAGE>
quantity to prevent migration of odors and/or heat and cooling
to other occupied premises or to the public area. Landlord
will provide a routing for Tenant's kitchen exhaust system.
Tenant to provide all ductwork and a two (2) hour shaft, or
other approved assembly, enclosure for the grease exhaust
duct.
(d) Air balance of HVAC systems and exhaust and make-up air
systems is required and shall be the responsibility of Tenant.
Tenant shall furnish Landlord with two (2) copies of a
certified air balance report within ten (10) days of the
Commencement Date. Landlord's specifications of HVAC
conditions within the Premises are predicated on the correct
balance, to Landlord's satisfaction, of any Tenant-installed
mechanical systems.
(e) All walk-in coolers, refrigerators or freezer boxes, if
allowed, shall be provided with insulated floor systems as
recommended by the equipment manufacturer. Landlord must
approve the loads imposed on the structure. All refrigeration
equipment must be air cooled. All sprinklers in these devices
shall be of a dry-type system. See Section C herein.
(f) Condensate lines for refrigeration and/or air conditioning
must terminate within the Premises.
Section 23.10. Tenant Electrical System
Tenant shall furnish and install all electrical facilities required for
the Premises from the Landlord provided meter section shown on the Lease Outline
Drawing.
Tenant's electrical system shall also include, but is not necessarily
limited to, the following:
(a) The conduit and wire (copper).
(b) Branch circuit panelboards (3-phase 4-wire type).
(c) Transformers for voltages other than those supplied by
Landlord.
(d) All sign, logo, and show window illuminations controlled by a
seven (7)-day time clock. Time settings will be established by
Landlord.
(e) All electrical work to be in accordance with the National
Electrical Code and all other authorities having jurisdiction.
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 7 of 14
<PAGE>
(f) Complete plans and specifications submitted by Tenant (in a
form acceptable to Landlord) for Landlord's approval for all
electrical work, including a breakdown (in KW) of the
lighting, receptacle, motors, heating, ventilating, hot water
heater, miscellaneous and spare circuits.
(g) Tenant shall connect the Food Court canopy lighting to its
electrical panel (controlled by time clock similar to 13.d.
above). Tenant shall install and wire the lights back to a
junction box located within the Premises.
Section 23.11. Fire Protection
Tenant shall furnish and install all required fire protection equipment
in the Premises including completion of the fire protection sprinkler system
provided by Landlord.
Tenant shall be responsible for the completion of the sprinkler system
provided by Landlord and shall contract directly with Landlord's sprinkler
contractor for the design and final location of sprinkler heads.
Sprinkler heads shall also be located in all grease-laden kitchen
exhaust ducts in horizontal runs and one (1) sprinkler head is required at the
top of each vertical run as required by codes. If the ductwork does not extend
more than 25 feet either vertically or horizontally (not more than 25 feet in
both directions), then only one (1) sprinkler head is required at the top of the
duct (i.e., just below the roof line in the vertical section).
A minimum sized 12" x 12" access door shall be located at every
sprinkler head and should be coordinated with grease cleanout doors to minimize
the total number of doors and the sprinkler pipe shall be supported
independently of the ductwork.
Sprinkler heads should be rated at 325(degree)F.
All walk-in freezer and cooler boxes shall have one dry pendant head
per 100 square feet, rated at 135(degree)F.
Section 23.12. Fireproofing
Tenant shall patch any and all disturbed fireproofing as required by
the City of Oviedo.
Section 23.13. Discipline
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 8 of 14
<PAGE>
Tenant shall enforce strict discipline and good order among the
employees of Tenant's contractors.
Section 23.14. Character of Employees
Tenant shall not employ any unfit person or anyone not skilled in the
work he or she is performing, or any workman who is incompatible with the
balance of the work force, or who will cause labor disputes or work stoppages.
Section 23.15. Clean-Up
Tenant shall maintain the Premises in a clean and orderly condition at
all times. Tenant shall deposit all unused construction material daily in
dumpsters provided by Landlord.
Flammable waste must be confined to covered metal containers and
removed daily by Tenant.
All construction material, equipment, fixtures, merchandise, etc. must
be contained within the Premises. Malls, courts, arcades, public corridors,
service corridors and the exterior of Landlord's Building shall be kept clean at
all times.
Section 23.16. Tenant Deliveries
Tenant shall be responsible for scheduling (including coordination with
Landlord) of all deliveries to the Premises, including receipt, checking,
inspection and payment for all labor (including overtime, demurrage and waiting
time) and equipment required to receive materials and move them to the Premises.
See Section D herein.
Section 24.1. General
(a) The following work in the Premises shall be accomplished by
Landlord at Tenant's expense for a cost of $2.00 per square
foot of Tenant's Floor Area. Upon receipt of an invoice,
Tenant will pay Landlord the full amount of the invoice prior
to, and as a condition for, commencement of work to be
performed by Tenant in the Premises.
Landlord shall provide Pre-Opening Services as follows:
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 9 of 14
<PAGE>
(i) One duplex receptacle will be provided, during normal
working hours only, at a point located within one
hundred feet (100') of the Premises until such time
as Tenant's electrical contractor sets up the
temporary power from the permanent service for
Tenant's Premises. Tenant's contractor shall provide
ground fault protection.
(ii) Landlord will provide dumpsters for Tenant's
construction trash as provided in Section C herein.
Tenant to remove construction debris from Premises on
a daily basis.
(iii) Merchandising trash only shall be removed daily when
deposited by Tenant at the storefront of the Premises
during the last two weeks prior to the Grand Opening
Date. All boxes must be broken down and flattened by
Tenant.
(b) The following work in the Premises shall be accomplished by
Landlord, at Landlord's sole discretion, at a cost mutually
agreed upon between Landlord and Tenant plus fifteen percent
(15%) cost of administration, only upon receipt of a signed
work order from Tenant authorizing such cost and payment of
the full amount agreed upon in advance of the performance of
the work.
(1) Modified water service or relocation of water
service.
(2) Modified sanitary sewer connection or relocation of
sanitary sewer.
(3) Modified electric service, or relocation of electric
service, provided such service is available.
(4) Modified gas service or connection.
(5) Modifications to the HVAC system, including
additional capacity of the system provided by
Landlord. Landlord reserves the right to allow or
refuse to perform any such modifications.
(6) The addition or relocation of other utility services.
(7) Revisions to Landlord-installed sprinkler system
required as a result of Tenant's store design which
requires additional risers, feed or cross mains,
branch lines, or other modifications (except as
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 10 of 14
<PAGE>
specifically provided for in Section C herein).
Landlord reserves the right to refuse to permit such
revisions in the event such revisions exceed
the/supply capacity of Landlord's system.
(8) Roof, floor, partition and wall openings for any
purpose. Such openings shall include supporting
structures, curbs, flashings, ducts, vents and
grilles. Landlord reserves the right to refuse to
permit any openings which exceed the capability of
the structural system or which in Landlord's opinion
would be detrimental to the appearance of Landlord's
Building.
(9) Any Tenant equipment that requires mounting on the
roof must be set by Landlord. Landlord reserves the
right to refuse to permit theinstallation of any roof
or wall-mounted equipment if, in Landlord's opinion,
the appearance of such equipment would be detrimental
to the appearance of Landlord's Building, or which
exceeds the capability of the structural system.
(10) Landlord's labor and equipment costs (including
waiting time and/or overtime) to unload and deliver
Tenant's material and/or equipment to the Premises,
if Tenant should fail to make provisions for Tenant's
deliveries. In such event, Tenant recognizes that
Landlord's cost will be substantially higher than
Tenant's cost would have been had Tenant made
provisions for the receipt and delivery of material
and equipment to the Premises. Landlord reserves the
right to refuse any and all such deliveries.
(11) Architectural or engineering fees incurred by
Landlord as a result of Tenant requesting any of the
items specified above or any other items of a special
nature.
(12) Landlord has elected to construct, at Tenant's
expense, exhaust duct and shaft protection in the
second floor space in order to minimize the impact on
the theater construction.
Section 24.2. Violations
In the event Tenant is notified of any violations of codes, or
ordinances, or regulations, either by the jurisdictional authorities or by
Landlord, Tenant shall correct such violations within seven (7) calendar days
from such date of notification. Should Tenant fail to correct such violations
within said seven (7)
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 11 of 14
<PAGE>
calendar days, Landlord will have the right to correct such violations at
Landlord's actual cost plus fifteen percent (15%) cost of administration.
Section 25.1. Landlord will prepare and forward to Tenant a Lease
Outline Drawing showing the Premises.
Section 25.2. Within thirty (30) calendar days thereafter, Tenant shall
submit to Landlord one (1) set of reproducible sepia prints and one (1) set of
prints and material sample boards of Tenant's preliminary design (Submission I),
for Tenant's improvements.
Section 25.3. Within fourteen (14) calendar days thereafter, Landlord
shall return to Tenant one (1) set of drawings together with approval and/or
comments.
Section 25.4. Within twenty (20) calendar days thereafter, Tenant shall
submit to Landlord two (2) sets of reproducible sepia prints and four (4) sets
of prints and specifications of Tenant's final design (Submission II). This
submission shall include complete plans and specifications for Landlord's
approval of all work. Tenant shall also submit completed Tenant Electrical Load
Data Form and Electrical Panel Board Schedules in the form provided by Landlord
to Tenant. Tenant shall have revised Tenant's plans and have obtained Landlord's
written approval before any work is started. Tenant's contractor must have the
final approved plans on the Premises during construction.
Section 25.5. Within fourteen (14) calendar days thereafter, Landlord
will return to Tenant one (1) set of drawings and specifications with approval
and/or comments. Tenant will promptly make any requested changes or, as the case
may be, promptly obtain Landlord's written approval to alternate solutions.
Section 25.6. Within ten (10) calendar flays after the issuance of
notification that the Premises are available for Tenant to `start construction,
Tenant will start and diligently pursue construction after first having obtained
all necessary permits from the jurisdictional authorities and having further
deposited with Landlord certificates of insurance. Tenant shall require any
contractor of Tenant performing work in the Premises to carry and maintain, at
no expense to Landlord, the following non-deductible insurance coverage naming
Rouse-Orlando, Inc. as additional insured:
(a) commercial (comprehensive) liability insurance policy,
including (but not limited to) contractor's liability
coverage, contractual liability coverage, completed operations
coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford
protection, with
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 12 of 14
<PAGE>
respect to personal injury, death or property damage of not
less than Three Million Dollars ($3,000,000) per occurrence
combined single limit/Five Million Dollars ($5,000,000)
general aggregate (but not less than $3,000,000 per location
aggregate);
(b) comprehensive automobile liability insurance policy with
limits for each occurrence of not less than One Million
Dollars ($1,000,000) with respect to personal injury or death
and Five Hundred Thousand Dollars ($500,000) with respect to
property damage; and
(c) worker's compensation insurance policy or similar insurance in
form and amounts required by law.
Section 25.7. Tenant shall commence and complete all work within the
Premises as expeditiously as possible but in no event shall completion be later
than ten (10) days prior to the Grand Opening Date with respect to the exterior
of the Premises and no later than seven (7) days prior to the Grand Opening Date
with respect to the interior of the Premises.
Other work, such as temporary storefront closure, performed by
Landlord, which was made necessary due to Tenant's failure to complete its work
in time for the Grand Opening Date, shall be payable to Landlord, at Landlord's
actual cost plus fifteen percent (15%) cost of administration.
Section 25.8. Landlord's work is limited to that specified in this
Schedule B and Tenant shall be required to make all improvements to the Premises
in accordance with Tenant's approved plans, except those which Landlord is
specifically required to make hereunder.
Section 25.9. If any mechanic's or other liens shall at any time be
filed against the Premises or the property of which the Premises are a pan by
reason of work, labor, services or materials performed or furnished, or alleged
to have been performed or furnished, to Tenant or to anyone holding the Premises
through or under Tenant, and regardless of whether any such lien is asserted
against the interest of Landlord or Tenant, Tenant shall forthwith cause the
same to be discharged of record or bonded to the satisfaction of Landlord. If
Tenant shall fail to cause such lien forthwith to be so discharged or bonded
after being notified of the filing thereof, then, in addition to any other right
or remedy of Landlord, Landlord may bond or discharge the same by paying the
amount claimed to be due, and the amount so paid by Landlord, including
reasonable attorneys' fees incurred by Landlord either in defending against such
lien or in procuring the bonding or discharge of
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 13 of 14
<PAGE>
such lien, together with interest thereon at the Default Rate, shall be due and
payable by Tenant to Landlord as Additional Rental.
Section 25.10. If, for any reason, Tenant shall fail to pay any amounts
due Landlord by Tenant hereunder, then, in addition to any other remedies
available to Landlord pursuant to the Lease, upon the Commencement Date, such
amounts, together with interest thereon at the Default Rate, shall be due and
payable by Tenant to Landlord as Additional Rental.
Section 25.11. Any Landlord's "approval" as used herein shall not be
construed to mean acceptability relative to any codes, ordinances or other
requirements placed upon Tenant by any public or private entity or agency other
than Landlord.
Schedule "B"
FAST FOOD
THE OVIEDO MARKETPLACE
August 21, 1997
Page 14 of 14
<PAGE>
SCHEDULE C
----------
DESIGN CRITERIA FOR TENANT IMPROVEMENTS
---------------------------------------
[TO BE SUPPLIED]
<PAGE>
SCHEDULE D
----------
TENANT ESTOPPEL CERTIFICATE
---------------------------
TO: The First National Bank of Chicago and Canadian Imperial Bank of Commerce,
individually and as co-agents for certain lenders (the "Co-Agents")
THIS IS TO CERTIFY THAT:
Section 25.12. The undersigned is the tenant under that certain lease
dated ("Lease") by and between Rouse-Orlando, Inc., as landlord ("Landlord") and
as tenant ("Tenant"), with respect to those certain premises consisting of
square feet of Floor Area (the "Premises") in Landlord's mall building (the
"Building") at The Oviedo Marketplace, a shopping center located in Oviedo,
Florida.
Section 25.13. The Lease is valid and in full force and effect on the
date hereof. The Lease represents the entire agreement between the Landlord and
the Tenant with respect to the Premises, and is the only agreement, oral or
written, between the Landlord and the Tenant affecting or relating to the
Premises. The Lease has not been modified, changed, altered, assigned,
supplemented or amended in any way (except as indicated herein):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Section 25.14. Other than as expressly provided in the Lease, Tenant
has no options to extend the term of the Lease, to lease additional space in the
Building or to purchase any portion of the Building.
Section 25.15. The Commencement Date of the Lease term [occurred] [is
anticipated to occur] on ________________, 19__, and the expiration date of the
Lease term (other than unexercised options to extend the Lease) will occur on
the last day of the _____ full calendar month after the month in which the
Commencement Date occurs.
Section 25.16. Landlord has complied with all of its construction and
other obligations under the Lease to this date, and Tenant [is fully obligated
to pay, and it is paying, the rent and other charges due thereunder, and] is
fully obligated to perform, and is performing, all of the obligations of Tenant
under the Lease to this date, without right of counterclaim, offset or defense,
except as specifically provided in the Lease.
Section 25.17. Tenant has not sublet the Premises, or any part thereof,
or assigned any of its rights under the Lease, except as indicated herein:
____________________________________________________________________.(if none,
state "none").
-1-
<PAGE>
Section 25.18. The [initial] [current] Annual Basic Rental payable by
Tenant is $______ per annum. The Annual Percentage Rental is ___% of Gross Sales
over the product of $_____ multiplied by Tenant's Floor Area. Other than the
"Advance Rental", if any, as defined in the Lease, no such rent has been paid
more than one (1) month in advance of its due date.
Section 25.19. Tenant's security deposit is $_______, which security
deposit has been deposited with Landlord and is not subject to increase for
interest or other credit due to Tenant (if none, state "none" ).
Section 25.20. There are no uncured defaults by Landlord under the
Lease and, to Tenant's knowledge, no event has occurred and no condition exists
which, with the giving of notice or the lapse of time or both, will constitute a
default under the Lease. Tenant has no existing defenses, offsets or credits
against the enforcement of this Lease by the Landlord or the payment of rent for
the Premises.
Section 25.21. No actions, whether voluntary or otherwise, are pending
against the Tenant under the bankruptcy laws of the United States or any state
thereof.
Section 25.22. Tenant's current notice address is set forth in the
Lease.
Section 25.23. The undersigned is authorized by all necessary action of
Tenant to execute this Tenant Estoppel Certificate on behalf of Tenant.
Section 25.24. Tenant has never permitted, and shall not permit, the
generation, treatment, storage or disposal on the Premises of any hazardous
substances as defined under federal, state or local law, except for such
substances of a type and in the quantity normally used in connection with the
occupancy by retail tenants in shopping centers, which substances are and shall
be held, stored and used in strict compliance with federal, state and local
laws.
Section 25.25. Landlord has not, as an inducement, assumed any of
Tenant's lease obligations and has made no agreements with Tenant covering free
rent, partial rent, rebate of rental payments or any other type of rental
concession.
Section 25.26. All conditions of the Lease to be performed by Landlord
and necessary to the enforceability of the Lease have, to Tenant's knowledge,
been satisfied.
Section 25.27. Tenant acknowledges that the statements in this Estoppel
Certificate may be relied upon by the Co-Agents and their successors and
assigns, and any lender which now or hereafter holds a lien on the Building, for
itself or as agent for itself and other lenders, and any such lender's
successors and assigns.
-2-
<PAGE>
Dated this _________ day of _________________, 1997.
TENANT:
-----------------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-3-
<PAGE>
RIDER TO SCHEDULE B OF LEASE AGREEMENT
--------------------------------------
THIS RIDER is annexed to and forms part of Schedule B of the Lease
Agreement dated , between ROUSE-ORLANDO, INC., as Landlord, and PIZZERIA REGINA
FLORIDA, INC., a Florida corporation, t/a PIZZERIA REGINA, as Tenant
The printed part of Schedule B of the Lease Agreement is
hereby modified and supplemented as set forth below. Wherever there is
any conflict between this Rider and the printed part of Schedule B of
the Lease Agreement, the provisions of this Rider are paramount and
Schedule B of the Lease Agreement shall be construed accordingly.
-1-
<PAGE>
(11/4/97)
THIS LEASE AGREEMENT CONTAINS IN SECTION 20.20. A MUTUAL WAIVER BY THE
PARTIES OF THE RIGHT TO A JURY TRIAL IN CERTAIN ACTIONS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
hereby have executed this Lease under their respective hands as of the day and
year first above written.
WITNESS: ROUSE-ORLANDO, INC., Landlord
- -------------------------------
WITNESS:
By: (SEAL)
- ------------------------------- ------------------------------
Vice-President
WITNESS: ATTEST:
- -------------------------------
WITNESS:
- ------------------------------- ----------------------------------------
Assistant Secretary
(CORPORATE SEAL)
WITNESSES: PIZZERIA REGINA FLORIDA, INC., Tenant
(a/k/a/,Pizzeria Regina of Florida, Inc.)
By: (SEAL)
- ------------------------------- ------------------------------
President
- ------------------------------- ATTEST:
----------------------------------------
Secretary
(CORPORATE SEAL)
-2-
<PAGE>
(11/4/97)
SCHEDULE "E"
------------
UTILITY CONSUMPTION AND PAYMENT SCHEDULE
----------------------------------------
ANNEXED TO and forming part of the Lease by and between ROUSE-ORLANDO,
INC. ("Landlord") and PIZZERIA REGINA FLORIDA, INC., a Florida corporation, t/a
PIZZERIA REGINA, ("Tenant").
Section 12.1. of the above mentioned Lease Agreement provides for the
inclusion of this Schedule as the basis for the determination of electricity
used by Tenant in the Premises and the payment therefore.
Landlord will provide and maintain the necessary empty conduits to
bring electricity to the Premises. Tenant shall pay all charges for electricity
used by it and supplied by Landlord, public utility or public authority, or any
other person, firm or corporation.
Landlord shall have the option to supply electricity to the Premises.
If Landlord shall elect to supply electricity to the Premises, Tenant will pay
all charges for its requirements for such service tendered by Landlord, and
Tenant will pay Landlord within ten (10) days after mailing by Landlord to
Tenant of statements therefor at the applicable rates determined by Landlord
from time to time which Landlord agrees shall be reasonable and not in excess of
the public utility rates for the same service, if applicable, but in no event
less than Landlord's actual cost.
If Landlord so elects to supply electricity, Tenant shall execute and
deliver to Landlord, within ten (10) days after request therefor, any
documentation reasonably required by Landlord to effect such change in the
method of furnishing of electricity.
Landlord shall provide water and sewer service to the Premises. Tenant
shall pay all charges for water and sewer used by it and supplied by Landlord, a
public utility or public authority, or any other person, firm or corporation. In
addition to the foregoing, at Landlord's option, Tenant shall pay to Landlord,
as Additional Rental, the annual Water and Sewer Charge set forth in clause O of
Section 1.1, which annual sum shall be paid in twelve (12) equal monthly
installments in advance on the first day of each calendar month during the Term,
the first such payment to include also any prorated Water and Sewer Charge for
the period from the date of the commencement of the Term to the first day of the
first full calendar month in the Term.
-1-
<PAGE>
(11/4/97)
HVAC-CD
-------
SCHEDULE"F"
TENANT HEATING, VENTILATING AND AIR-CONDITIONING SCHEDULE
---------------------------------------------------------
ANNEXED TO and forming pan of the Lease by and between ROUSE-ORLANDO,
INC. ("Landlord") and PIZZERIA REGINA FLORIDA. INC., a Florida corporation. t/a
PIZZERIA REGINA, ("Tenant").
Section 12.2 of the above mentioned Lease provides for the inclusion of
this Schedule as the basis for establishing the obligations of Landlord and
Tenant with regard to the ventilation and air- conditioning equipment and system
servicing the Premises and the cost of energy used to provide ventilation and
air-conditioning to the Premises.
Landlord has installed a condenser water loop for the Premises and
Landlord's Building. Tenant shall install HVAC unit(s) and a sheet metal duct
system in the Premises. Landlord and Tenant shall each operate their respective
portions of the facilities for heating, ventilating and air- conditioning the
Premises during the Term. Landlord and Tenant shall each maintain, repair and
operate its portion of such system at its own expense, but subject to the
payment by Tenant to Landlord of the charges provided for herein. Upon the
expiration or termination of the Term of this Lease, title to such additions and
replacements shall remain in and shall vest solely in Landlord.
In each calendar month of Landlord's fiscal year (the "Fiscal Year"),
Tenant shall pay Landlord, as Additional Rental, Tenant's proportionate share of
(i) the cost of utilities used in ventilating and providing chilled or condenser
water to Landlord's Floor Area, and (ii) the cost of maintenance, repair and
operation of such equipment and system as installed or owned by Landlord
(Tenant's V/CW Charge") which shall be determined as follows:
(a) Landlord shall came a heating, ventilating and
air-conditioning consultant designated by Landlord to review
such data and information regarding the mechanical capacity of
said equipment and system as such consultant shall deem
relevant and, based on such data and information, such
consultant shall assign to Tenant a "V/CW Factor" which shall
fairly represent the relationship between (x) the mechanical
capacity of the equipment and system which is required for
ventilating and air-conditioning the Premises and (y) the
total mechanical capacity of such equipment and system which
is available for ventilating and air-conditioning Landlord's
Floor Area; and
(b) In each Fiscal Year, the actual cost to Landlord of such
utilities, operation, maintenance and repair as is
attributable by Landlord to provide ventilation and chilled or
condenser water for Landlord's Floor Area, together with costs
and fees of Landlord's consultant in recalculating V/CW
Factors of Tenant and other tenants of Landlord's Building
from time to time, shall be multiplied by a fraction, the
numerator of which is Tenant's V/CW Factor and the denominator
of which is the total of all V/CW Factors assigned to leased
Landlord's Floor Area. The product thus obtained shall be the
Tenant's V/CW Charge for such Fiscal Year.
<PAGE>
Tenant's V/CW Charge for each calendar month shall be paid by Tenant in
such amounts as are estimated and billed by Landlord, each such charge being
estimated and billed as of the first day of each Fiscal Year. At any time during
each Fiscal Year, Landlord may reestimate Tenant's V/CW Charge and adjust
Tenant's monthly installments payable during such Fiscal Year to reflect more
accurately Tenant's V/CW Charge. Within one hundred twenty (120) days after the
termination of each Fiscal Year, Landlord will send Tenant a notice which shall:
(c) set forth the amount of Tenant's V/CW Charge based upon
Landlord's utility bills and maintenance, repair and,
operation costs for such Fiscal Year; and
(d) state that the aggregate of all tenant V/CW Charges paid or
payable by all tenants of leased portions of Landlord's Floor
Area with respect to such Fiscal Year, as adjusted, does not
exceed the actual cost to Landlord of utilities used in
providing such ventilation and chilled or condenser water to
Landlord's Floor Area and of such maintenance, repair and
operation costs, together with the costs of Landlord's
consultant in recalculating V/CW Factors of Tenant and other
tenants of Landlord's Building from time to time.
Tenant's V/CW Charge paid for such Fiscal Year shall be adjusted
between Landlord and Tenant, the parties hereby agreeing that Tenant shall pay
Landlord or Landlord shall credit to Tenant's account (or, if such adjustment is
at the end of the Term, Landlord shall pay Tenant), as the case may be, within
thirty (30) days of such notification to Tenant, the amounts necessary to effect
such adjustment. Failure of Landlord to provide the notification called for
hereunder within the time prescribed shall not relieve Tenant of its obligations
hereunder.
In each Rental Year, Tenant shall pay Landlord annually (in twelve (12)
equal monthly installments together with the Annual Basic Rental), as Additional
Rental, an amount (the "HVAC Equipment Contribution Rate") determined by
multiplying the charge set forth in Section 1.1.J. of the Lease Agreement by
Tenant's Floor Area.
-2-
<PAGE>
(11/4/97)
SCHEDULE "H"
------------
RADON GAS
---------
ANNEXED TO and forming part of the Lease by and between ROUSE-ORLANDO,
INC. ("Landlord") and PIZZERIA REGINA FLORIDA, INC., a Florida corporation, t/a
PIZZERIA REGINA, ("Tenant").
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
The parties hereby acknowledge their understanding of the foregoing by
signing and dating this Schedule where indicated below.
ROUSE-ORLANDO, INC., Landlord
By: DATE
-------------------------------------- -----------------------------
Vice President
PIZZERIA REGINA FLORIDA, INC., Tenant
(a/k/a .Pizzeria Regina of Florida, Inc.)
By: DATE
------------------------------------ -----------------------------
President'
-1-
<PAGE>
G U A R A N T Y
---------------
ANNEXED TO AND FORMING A PART OF THE LEASE DATED BETWEEN,
ROUSE-ORLANDO, INC., a Maryland corporation ("Landlord") , and PIZZERIA REGINA
FLORIDA, INC., a Florida corporation t/a PIZZERIA REGINA ( "Tenant" ) .
The undersigned, BOSTON RESTAURANT ASSOCIATES, a Massachusetts
corporation ("Guarantor"), whose address is Stone Hill Corporate Center, 999
Broadway, Suite 400, Saugus, MA 01906, in consideration of the leasing of the
Premises described in the annexed Lease to the above named Tenant, does hereby
covenant and agree:
That Guarantor may, at Landlord's option, be joined in any action or
proceeding commenced by Landlord against Tenant in connection with and based
upon any covenants and obligations in said Lease, and Guarantor waives any
demand by Landlord and/or prior action by Landlord of any nature whatsoever
against Tenant. That this Guaranty shall remain and continue in full force
and effect as to any renewal, extension, modification or amendment of said
Lease and as to any assignee of Tenant's interest in said Lease, and
Guarantor waives notice of any and all such renewals, extensions,
modifications, amendments or assignments. That Guarantor's obligations
hereunder shall remain fully binding although Landlord may have waived one
or more defaults by Tenant, extended the time of performance by Tenant,
released, returned or misapplied other collateral given later as additional
security (including other guaranties) or released Tenant from the
performance of its obligations under such Lease. That this Guaranty shall
remain in full force and effect notwithstanding the institution by or
against Tenant of bankruptcy, reorganization, readjustment, receivership or
insolvency proceedings of any nature, or the disaffirmance of said Lease in
any such proceedings or otherwise. That if this Guaranty is signed by more
than one party, their obligations shall be joint and several and the release
of one of such Guarantors shall not release any other of such Guarantors.
That the Guarantor or Guarantors hereby waive all suretyship defenses
generally, and the right to petition for the marshalling of assets. That
this Guaranty shall be applicable to and inure to the benefit of Landlord,
its successors and assigns and shall be binding upon the heirs,
representatives, successors and assigns of Guarantor.
-2-
<PAGE>
GUARANTOR HEREBY WAIVES ALL RIGHTS WHICH IT MAY HAVE TO REQUEST A JURY
TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF SAID LEASE OR
THIS GUARANTY.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this
______ day of ______________, 19__.
WITNESSES BOSTON RESTAURANT ASSOCIATES,
Guarantor
By: (SEAL)
- ------------------------------ ---------------------------------
President
- ------------------------------ ATTEST:
------------------------------------
Secretary
(CORPORATE SEAL)
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
"THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONDENSED
CONSOLIDATED BALANCE SHEETS AS OF OCTOBER 26, 1997 AND APRIL 27, 1997 (AUDITED)
AND CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE THIRTEEN WEEKS ENDED
OCTOBER 26, 1997 AND OCTOBER 27, 1996 (UNAUDITED) AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS".
</LEGEND>
<CIK> 0000926295
<NAME> Boston Restaurant Associates, Inc.
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> APR-26-1998
<PERIOD-START> APR-28-1997
<PERIOD-END> OCT-26-1997
<EXCHANGE-RATE> 1.00
<CASH> 631,581
<SECURITIES> 0
<RECEIVABLES> 132,707
<ALLOWANCES> 0
<INVENTORY> 214,996
<CURRENT-ASSETS> 1,018,843
<PP&E> 4,511,373
<DEPRECIATION> 1,916,083
<TOTAL-ASSETS> 4,900,966
<CURRENT-LIABILITIES> 1,273,829
<BONDS> 0
0
0
<COMMON> 50,157
<OTHER-SE> 1,399,213
<TOTAL-LIABILITY-AND-EQUITY> 4,900,966
<SALES> 2,989,820
<TOTAL-REVENUES> 2,991,414
<CGS> 602,586
<TOTAL-COSTS> 2,867,136
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 77,503
<INCOME-PRETAX> 52,677
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 52,677
<EPS-PRIMARY> .01
<EPS-DILUTED> .01
</TABLE>
