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Community & Economic Development
1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021
To: City of South Bend Redevelopment Commission
From: Debrah Jennings -CED Staff (� .
Subject: Intent to Lease 123 S. Michigan
Date: August 16, 2012
Gordon Ventures, LLC has submitted a proposal to lease space in the South Bend Redevelopment
Retail Area.
A national retail franchise known as Edible Arrangements intends to rent 123 S. Michigan St with
the following terms.
• Lease Term five (5) years, with the option of three — five year lease renewals;
• Initial rent is $7.50 per sq. ft., totaling $11,475. per year, and increasing 3% annually;
• Common Area Maintenance (CAM) and property tax will be billed at $5.61 per sq. ft.
totaling $8,583.30 per year;
• Tenant will take possession of space in "as is condition ";
• Owner will allow tenant to place a construction dumpster in front of leased premises for no
more than two (2) days;
• Owner will provide six (6) parking permits for Leighton Parking garage at a reduced rate of
$30.00 each per month.
Edible Arrangements is a National Franchise that produces floral shaped and sculpted fruit
arrangements dipped in assorted flavors and toppings. Because they are a franchise they will require
acceptance of this agreement from their corporate headquarter upon approval from the
Redevelopment Commission. Therefore, please find attached a draft of the proposed lease
agreement subject to legal review. The proposed lease agreement has been sent to the prospective
tenant, but we have not received their review comments back yet.
Upon approval of this agreement, Redevelopment Retail will once again become 100% occupied.
Staff recommends approval.
Document2 What We Do Today Makes A DhTeremw 1
F
GRUBB & ELLIS.
Cressy & Everett
INTENT TO LEASE
We, Gordon Ventures, LLC, hereinafter referred to as "Lessee ", propose to lease 1530 square feet known as
123 South Michigan Street, Michigan Street Shops, in the City of South Bend, St. Joseph County, Indiana,
subject to the following terms and conditions:
1. USE: National Retail Franchise named Edible Arrangements: The
production, retail sales and delivery of floral shaped and
sculpted fruit arrangements, fruit dipped in assorted flavors
with assorted toppings, fruit salads and related products as
required by Edible arrangements, which may include fruit
drinks /Smoothies and frozen yogurt.
2. LEASE TERM:
Five (5) years
3. ASSIGNMENT Tenant may assign the Lease to a licensed Edible Arrangements
franchisee upon Landlords consent and review of assignee's
financial strength. Such consent shall not be unreasonably
withheld nor delayed.
4. INCEPTION DATE: Rent shall commence 45 days after occupancy.
5. OCCUPANCY DATE: Upon substantial completion of Landlord's work.
6. RENEWAL OPTIONS: Three 5 year Options to extend at a rate equal to 90% of the
average lease rates in The Michigan Street Shops at the time of
renewal, or at a rate of $9.00 / sq. ft., whichever is greater. Rent
shall increase 3% annually throughout the renewal period.
7. RENT:
8. COMMON AREA MAINTEN-
ANCE and PROPERTY TAX
(Additional Rent)
9. UTILITIES
10. LANDLORD IMPROVEMENTS:
Rent shall be as follows:
Year 1
$7.50
Year 2
$7.72
Year 3
$7.96
Year 4
$8.20
Year 5
$8.44
Rent shall increase 3% annually.
2012 Budget for CAM is $5.61 PSF
Tenant shall be responsible for all separately metered utilities
consumed on Premises including but not limited to Electric,
water, gas, and telecommunications
Tenant requires 12 ton of air conditioning. Tenant shall at their
expense install additional HVAC required. Landlord shall
approve the install and Tenant shall have the right to remove
said HVAC units should they vacate leased premises at the end
of the initial term of this lease. Tenant must be current with
rents and in good standing with Landlord and must repair any
damage caused by said HVAC removal.
Tenant shall accept the balance of property in its "AS IS"
Condition
11. TENANT IMPROVEMENTS: Tenant shall be responsible for the balance fit -up and furnishing
subject to Landlord approval
12. SIGNAGE: Subject to Landlord's approval, Tenant's a) logos, b) colors,
and c) exterior signage specifications shall be pre approved and
included in the Lease
13. LEASE DOCUMENT: This intent is subject to the execution of a mutually agreeable
Lease document within 30 days of acceptance
14. FRANCHISE APPROVAL This intent is conditioned upon Edible Arrangements corporate
approval within 20 days of acceptance of this agreement
15. MISCELANEOUS: This Intent is conditioned upon reaching satisfactory agreements
with the City of South Bend regarding the following within 15
days of acceptance of this Intent to Lease Agreement:
A. Temporary Permit for a construction dumpster in front of
leased premises for a total of two days, or an extended
period of time if dumpster is located within Leighton
Parking Garage.
B. A one day move in parking permit in front of leased
premises.
C. Landlord shall provide 6 permits for the Leighton Parking
Garage at a $15.00 / month discount. (current rates are
$45.00 / month for unreserved spaces. Discounted rate will
be $30.00 / month)
D. Satisfactory Garbage Disposal Plan (The trash is emptied
six days a week and is shared between Leighton Plaza,
Healthplex and Michigan Street Shoppes. At this time the
amount of pickups are adequate to keep up with the need of
the Tenants, but this could be adjusted if necessary. It is
comingled trash and recycling)
This proposal shall not constitute an offer to lease the premises, and is not a legal, binding agreement. It is
intended to reflect the general understanding of the terms and conditions as negotiated by Landlord and
Tenant, which are intended to be incorporated into a formal lease agreement.
Dated this 30th day of July, 2012
LESSOR LESSEE
Richard J. Doolittle, Agent For
Gordon Ventures, LLC
By: John Gordon, Member
LEASE
By and Between
THE SOUTH BEND
REDEVELOPMENT COMMISSION
and
THE GORDON GROUP
dba Edible Arrangements
August 9, 2012
LEASE
THIS LEASE ( "Lease") is made by and between the City of South Bend, Indiana, Department of
Redevelopment, acting by and through the South Bend Redevelopment Commission, (the "Landlord') and The
Gordon Group dba Edible Arrangements, (the "Tenant') as of the date of last execution hereof by Landlord or
Tenant (the "Effective Date ").
WITNESSETH:
ARTICLE 1.
BASIC LEASE PROVISIONS
1.1. Basic Lease Provisions. The following basic provisions of this Lease (the "Basic Lease
Provisions') constitute an integral part of this Lease and are set forth in this Section 1.1 for the convenience of the
parties. Each reference in this Lease to a Basic Lease Provision shall be construed to incorporate all of the terms
provided for under such provisions.
(a) Leased Premises:
123 S. Michigan Street and as further defined in Section
2_1 hereof, consisting of approximately 1,530 square
feet of "Floor Area."
(b) Tenn:
Initial Term of Five (5) Lease Years, as provided for in
Sections 3.1 and 3.2 hereof.
(c) Tenant's Use:
Police Substation.
(d) Tenant's Trade Name:
Edible Arrangements (or such other trade name taken by
the Tenant)
(e) Landlord's Address:
1200 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
With copy to:
CBRE I Bradley
101 N. Michigan St., Ste 300
South Bend, IN 46601
(f) Tenant's Address:
Aft,
y ne
Fwsinule Number
(g) Lease Year:
A "Lease Year" shall mean each period of twelve (12)
consecutive full months, beginning on the
Commencement Date as defined in Section 3.1 (such
that if the Commencement Date is not the first day of a
calendar month, then the first Lease Year shall begin on
the first day of the first calendar month following the
Commencement Date, and any partial month in which
the Commencement Date occurs will be included within
the first Lease Year).
(h) Security Deposit:
An amount equal to the first month's Modified Gross
Year 2
Rent as security deposit shall be due upon signing of
Year 3
lease.
(i) The Building:
Michigan Street Shops, commonly referred to as 117 —
Year 5
131 S. Michigan St, South Bend, Indiana, as more
particularly described in Exhibit A, and depicted in
Exhibit B, each attached hereto and made a part hereof.
(j) Effective Date:
The date of last execution hereof by Landlord or Tenant.
(k) Delivery Date:
The date to which possession is delivered to the Tenant.
(1) Commencement Date:
The date on which the "Initial Term" commences as
determined in Section 3.1.
1.2. Base Rent.
Year 1
$7.50
Year 2
$7.72
Year 3
$7.96
Year 4
$8.20
Year 5
$8.44
Rent shall increase 3% annually
The Base Rent for any Lease Month during an Extended Term (or extension of the Initial Tenn) shall be the greater
of $9.00 per square foot or 90% of the then average Lease Rates in Michigan Street Shops.
ARTICLE 11.
PREMISES.
2.1. Premises. Landlord is the owner of the Building. Landlord, in consideration of the Rent, as
hereinafter defined, to be paid and the covenants to be performed by Tenant, hereby leases to Tenant, and Tenant
hereby leases from Landlord, that certain premises located in the Building and depicted on Exhibit C (the
"Premises'), subject to the terns and conditions of this Lease. Landlord reserves the right, with respect to the
Building, to modify, increase or decrease: the number, location, dimension, size, and height of buildings and other
improvements in the Building; and the identity and type of other tenants. Tenant's interest in the Premises is and
shall be subject to all easements, restrictions, liens, encumbrances, rights -of -way, or other matters now or hereafter
of record affecting the Premises or the Building.
2.2. Common Areas. Tenant shall have the right, in common with all other tenants in the Building, to
use the areas in and around the Building designated by Landlord from time to time as common areas, including,
without limitation, hallways, stairs, elevators, sidewalks, interior drives, parking areas and green areas (the
"Common Areas "), subject to the Rules, as hereinafter defined. Landlord shall operate, maintain and insure the
Common Areas for their intended purposes in such a manner as Landlord shall determine to be necessary or
appropriate, including, without limitation, that Landlord at any time may close or change any part of the Common
Areas as Landlord determines to be necessary or appropriate. Tenant understands that Landlord does not control the
sidewalks located in the Michigan Street right of way. Tenant will file its request with the South Bend Board of
Public Works for use of a portion of the sidewalk area for outdoor seating. Landlord will not oppose such request.
2.3. Ouiet Eniovment. Landlord warrants that it is the owner in fee simple of the Building, and that it
has full right and authority to enter into this Lease, subject to all easements, restrictions, liens, encumbrances, rights-
of -way and other matters of record. Landlord agrees that if Tenant observes all of the terns and conditions of, and
performs all of its obligations under, this Lease, then, at all times during the Tenn, subject to the terns and
conditions of this Lease, Tenant shall have the peaceable and quiet enjoyment of possession of the Premises, without
any manner of hindrance from parties claiming under, by, or through Landlord.
ARTICLE Ill.
TERM.
3.1. Initial Term. The "Commencement Date" shall commence on the Effective Date, estimated to be
June 1, 2012. The Initial Term shall end on that date which is Five (5) Lease Years after the Commencement Date,
unless earlier terminated in accordance with the provisions of this Lease (the "Termination Date "). Tenant hereby
covenants that within five (5) days after the Commencement Date, it shall execute the Commencement Certificate
attached hereto as Exhibit E and made a part hereof, and deliver it to Landlord.
3.2. Extension Options. Intentionally Omitted. Provided that no Event of Default, as hereinafter
defined, or any facts which with the giving of notice or passage of time, or both, would constitute an Event of
Default, exists at the time of the exercise of any option to extend the Tenn hereof or exists at the end of the Initial
Term, Tenant may renew this Lease and extend the Initial Term hereof for three (3) additional period of five(5) years
( "Extended Term "), on the same terms and provisions as provided in this Lease, except that the Rent due in such
Extended Term shall be the greater of 90% of the then average Lease Rates in Michigan Street Shops or Nine
dollars and 00 /100 ($9.00) dollars per square foot, with delivery of written notice of the exercise of such option not
later than one hundred and eighty (180) days before the expiration of the Initial Tenn of this Lease. If Tenant fails to
exercise its option to extend the Tenn hereof in the time periods set forth in this Section 3.2, all such option to
extend shall immediately terminate and have no further force or effect, without further notice from Landlord. Any
reference in this Lease to the "Tenn" shall mean the Initial Term as it may be extended pursuant to this Section 3.2.
3.3. Holding Over. If Tenant fails to surrender the Premises upon the expiration of the Tenn or earlier
termination of the Lease (it being agreed that Tenant shall not be permitted to so hold over without Landlord's
written consent), Tenant shall pay Landlord for each day of such holding over a sum equal to one hundred and
twenty -five percent (125 %) of the Rent payable during the preceding Lease Year prorated for the number of days for
such holding over, plus Tenant's Pro Rata Share of all other amounts which Tenant would have been required to pay
hereunder had this Lease been in effect (the "Holdover Rent'). If Tenant holds over without Landlord's written
consent for a period in excess of thirty (30) days without any action from Landlord to dispossess Tenant, Tenant
shall be deemed to occupy the Premises on a tenancy from month -to -month at the Holdover Rent, and all other terns
and provisions of this Lease shall be applicable to such period. At any time, either party may terminate such tenancy
from month -to -month upon written notice delivered to the other party at least thirty (30) days in advance. Tenant
hereby waives any and all notice to which Tenant may otherwise be entitled under the laws of the State of Indiana
(the "State ") as a prerequisite to a suit against Tenant for unlawful detention or possession of the Premises. Tenant
shall Indemnify, as hereinafter defined, Landlord from any Loss, as hereinafter defined, resulting from such hold
over, including without limitation any liability incurred by Landlord to any succeeding tenant of the Premises.
ARTICLE IV.
CONSTRUCTION
4.1. Landlord's Work. Landlord shall perform the work described in Exhibit D, attached hereto and
made a part hereof (the "Landlord's Work ") substantially in accordance with the plans and specifications for
Landlord's Work, as such plans and specifications may be modified by Landlord as appropriate to complete
Landlord's Work (the "Plans"). The "Delivery Date" shall be the date upon which Landlord's Work is substantially
complete in accordance with the Plans, subject to delineated "punch- list" items that do not prevent Tenant from
using the Premises for the purpose of. (a) conducting its normal business operations; or (b) completing Tenant's
Work, as hereinafter defined. On the Delivery Date, Tenant shall have full occupancy of the Premises, subject to all
of the terms and conditions of this Lease. Landlord shall correct any "punch - list' items within sixty (60) days after
the Delivery Date.
4.2. Tenant's Work. Landlord shall deliver the Premises "as -is ". All work required for Tenant to open
and operate in the Premises under the Tenant's Use as outlined in Section LI(c) shall be at Tenant's sole cost and
expense.
(a) Plans. Within sixty (60) days after the Effective Date, Tenant shall submit to Landlord two (2)
copies of the complete plans and specifications (the "Tenant's Plans ") for the work Tenant deems necessary to
prepare the Premises for occupancy by the Tenant (the "Tenant's Work "). Within thirty (30) days after Landlord's
receipt of Tenant's Plans, Landlord shall notify Tenant of any failures of the Tenant's Plans to meet with Landlord's
approval. Tenant shall, within ten (10) days after receipt of any such notice, cause the Tenant's Plans to be revised
to the extent necessary to obtain Landlord's approval and to be resubmitted for Landlord's approval. When
Landlord has approved the original or revised Tenant's Plans, Landlord shall initial and return one (1) set of
approved Tenant's Plans (the "Approved Plans ") to Tenant. Tenant shall not commence Tenant's Work until
Landlord has approved Tenant's Plans, which approval shall not be unreasonably withheld.
Landlord's review and approval of Tenant's Plans shall not be deemed to be an assumption of
responsibility by Landlord for the accuracy, sufficiency or propriety of Tenant's Plans, pursuant to applicable laws,
rules, ordinances or regulations. If the Approved Plans are changed as a result of conditions placed on Tenant as a
prerequisite to obtaining a permit, Tenant shall submit such changes to Landlord for approval, and Tenant shall not
proceed further with the affected portions of Tenant's Work until Landlord has approved the changes. Such changes
as are approved by Landlord shall become part of the Approved Plans.
(b) Performance. Tenant shall, in a manner consistent with the Approved Plans: (i) install its
leasehold improvements, trade fixtures and equipment; and (ii) complete all other Tenant's Work. Prior to
performing Tenant's Work, Tenant shall: (i) obtain all permits. licenses and approvals required for Tenant to
perform Tenant's Work; and (ii) deliver to Landlord: (a) copies of such permits, licenses and approvals; and (b)
evidence reasonably satisfactory to Landlord that Tenant has procured workers' compensation, builder's risk,
general liability, and personal and property damage insurance as Landlord reasonably may require. Tenant shall: (i)
perform Tenant's Work: (a) in accordance with the Approved Plans and all permits, licenses and approvals; and (b)
in a good and workmanlike manner and in compliance with all applicable laws, statutes, and/or ordinances and any
applicable governmental rules, regulations, guidelines, orders, and/or decrees (the "Laws "); (ii) ensure that all
contractors, subcontractors, laborers and suppliers performing work or supplying materials are paid in full; and (iii)
observe and perform all of its obligations under this Lease (except its obligation to pay Rent) at all times after the
Delivery Date through the Commencement Date.
(c) Reserved.
ARTICLE V.
RENT.
5.1. Rent. Commencing on the Effective Date, Tenant shall pay to Landlord, in lawful United States
currency without notice, demand, deduction, set -off, counterclaim or recoupment, and without relief from valuation
or appraisement laws, the Rent, as set forth in Section 1.2, including Base Rent plus the Additional Rent charges phts
De..eentage Dent (as herein defined) (collectively, the "Rent "), together with any sales, use, or other taxes assessed
thereon for the use and occupancy of the Premises. Rent shall be paid in monthly installments commencing as
provided herein and thereafter during the entire Tenn or Extended Term on or before the fifteenth (15'h) day of each
calendar month, in advance. Tenant's obligations under this Section 5.1 shall survive the Termination Date.
5.2. Additional Rent. Commencing as provided in Section 5.1, Tenant shall pay to Landlord, as part
of Rent, Additional Rent (the "Additional Rent "), all other sums, charges, and payments required to be paid by
Tenant to Landlord under this Lease, whether or not the same are designated as Additional Rent including, but not
limited to, Tenant's Pro Rata Share of the Center Expenses, as defined in Section 5.7(a). If any sum or charge is not
paid at the time provided in this Lease, then it shall be collectible as Additional Rent with the next monthly
installment of Rent; provided that nothing contained herein shall be deemed to suspend or delay the payment of such
sum or charge, or to limit any right or remedy of Landlord with respect to its nonpayment.
5.3. Late Charge. Any amount of Rent that is overdue shall bear interest at the lesser of: (a) the
maximum rate payable by Tenant under State law; or (b) the rate of eighteen percent (18 %) per annum from the date
when such amount is due and payable under this Lease until the date paid. If any amount of Rent is paid more than
five (5) days after its due date, then Landlord shall be entitled to a late payment fee of One Hundred Dollars
($100.00) in addition to the interest charge set forth in this Section 5.3.
5.4. Common Expenses.
a. Pro Rata Share. Tenant's "Pro Rata Share" shall be a fraction: (a) the numerator of which is the Floor
Area, as defined in Section 1.1; and (b) the denominator of which is the square footage of all areas
leasable to tenants in the Building. As of the Effective Date, Tenant's Pro Rata Share is 1,530/11,057
or ten percent (10.87 %). Tenant's Pro Rata Share shall be re- calculated from time to time if either the
numerator or the denominator change.
b. Payment. Tenant shall pay to Landlord its Pro Rata Share of the Common Expenses, as hereinafter
defined (the "CAM Contribution "), which share shall equal the amount of all Common Expenses,
multiplied by Tenant's Pro Rata Share. The obligations of Tenant under this Section 5.4 shall survive
the Termination Date.
c. Common Expenses. "Common Expenses" shall mean all costs and expenses of every kind or nature
paid or incurred by Landlord during the Term in operating, managing and servicing the Building,
including, without limitation: (i) management fees; (ii) wages, salaries and benefits of maintenance
personnel (not to exceed the amount fairly and equitably allocated to the Building); (iii) charges under
maintenance contracts; (iv) costs and expenses to perform or provide maintenance or repairs and to
satisfy Landlord's obligation to operate, maintain and insure the Common Areas under this Lease; (v)
sewer, water and storm water drainage charges attributable to the Common Areas, and the costs to
maintain any retention and detention ponds and other stonn water drainage facilities; (vi) premiums for
customary insurance incurred by the Landowner including insurance, if any, obtained by the Landlord
to satisfy an obligation under this Lease; (vii) costs for signage located in the Common Areas,
including, without limitation, costs for light bulbs and electricity, and costs incurred with respect to any
exterior sign for the Building; (viii) costs and expenses to provide light, heat, air conditioning and
ventilation for the Common Areas; and (ix) depreciation or amortization of capital assets,
improvements, repairs or replacements (the "Amortized Capital Costs"). Tenant shall be responsible
for its Pro Rata Share of the Amortized Capital Costs, together with interest if not paid when due,
notwithstanding that the capital asset, improvement, repair or replacement may have been acquired or
made before the Commencement Date. Common Expenses shall not include: (1) any leasing or rental
commissions; (2) any legal fees in connection with financings or refinancings, preparation or
negotiation of leases, or exercising or enforcing Landlord's rights and remedies under leases; (3) any
costs of tenant improvements or build -outs; (4) any penalties or interest assessed against Landlord for
late payment of its indebtedness; or (5) payments of principal or interest required by any financing or
refinancing. Notwithstanding anything to the contrary set forth herein, amounts separately billed to,
and paid directly by, a tenant of the Building shall be deducted in calculating Common Expenses from
the costs and expenses that Landlord incurs to operate the Building. Common Expenses, including
Real Estate Tax Expenses and Insurance Expenses are currently estimated to be five dollars and 61/100
($5.61) per square foot per year.
5.5. Meal Estate Tax Expenses. Tenant shall pay to Landlord, as Additional Rent, Tenant's Pro Rata Deleted: 1;
Share of (collectively, the "Tax Expenses "): (a) all real estate taxes and assessments of any nature levied during the
Term on, against, or with respect to the Building (the "Real Estate Taxes "): (b) any and all costs and expenses
incurred by Landlord in connection with an appeal of the Real Estate Taxes; and (c) all Real Estate Taxes levied
during the Term on, against, or with respect to Tenant's leasehold interest in the Premises. The obligations of
Tenant hereunder with respect to the payment of Real Estate Taxes levied during the final year of the Tenn shall
survive the Termination Date.
5.6. Insurance Expenses. Tenant shall pay to Landlord, as Additional Rent, its Pro Rata Share of any
and all costs incurred by Landlord in connection with the Casualty Insurance, as defined in Section 8.1, and the
Liability Insurance, as defined in Section 8. 1, including, but not limited to, all premiums and deductibles paid by
Landlord (collectively, the "Insurance Expenses').
5.7. Percenta eg Rent. Intentionally Omitted. Beginning on the FffeetiN,e Da4e Tenant .°:" be liable
I-A-Rd-IsFd- fqr- the Pementage Rew proN,ided herein, in addition to the Rent, and Additional Rent without previous
demati 1 theFef;me and without a abatement diminution, set off, OF deduetie«
(a) Definition of Gross Sales. Intentionally Omitted.
tffm "Gross Sales" means the selling price Of all M(3176hafldise sold in, at, on, of from an), paFt Of the PFeMiSeS and-
the eharges fef and sen,iees of an), so# sold or- peffe�ed in, at, or fr-oin an), poilien of the Premises, ineluding sales
made by Tenant or any sabienant, lieensee, assignee or eoneessiefiaiFe and ineluding sales 4ofn efdeFS aseepted
on or fmm the PFefRiSeS fef delivefy fmfn plaoes other than the Premises, of ofdeFs filled ffotn the Pfemises even
other- teelinalegy based systems now existing or developed in the fiitufe. C4srs Saleg inrdudeqs -all sales -R-nd- 0,ar-ges,
fOF eaSh or- credit, regardless of ealleetions in the sw;e "' - I - -1 , Fties aeknowledge that Tenant's sueeessful
operation of its business is of prime impoftanee to both panies, and Tenant herLby agFees to use its best efforts to
., !_..ANq Sales in the Dfemise.. 4f th@ l.m4it of t .....11,...,7 .. «.7 Te fla «r
On of befOFe the fifteenth (15th) day of eaeh month defing the Tenn, Tenant will fiffRish LaHdl0Fd a
statement signed by TenapA showing the amount of Gross Sales fOF the pr-eeeding menth. Q;ass sal&s .;hall be taken
ffem the fifst day t8 last day of eaeb ealendar. menth ifieluding weekends and holidays, with Per-eefitage Refit
ealettlated there from and due along with sueh statement on or- before the fifteenth (I sth) day of eaeh mRnth in
advance.
5.8 Estimation
a- Estimation. From time to time, Landlord may estimate (or re- estimate) the amount of the Tax
Expenses, Insurance Expenses, and/or CAM Contributions (collectively, the "Center Expenses ")
payable by Tenant for any whole or partial calendar year during the Tenn. Tenant shall pay, as
Additional Rent, equal monthly installments of its Pro Rata Share of the estimated Center Expenses
during such whole or partial calendar year.
b. Statement. Within ninety (90) days after the end of each whole or partial calendar year during the
Tenn, Landlord shall deliver to Tenant a written statement that shows the computation of the actual
Center Expenses payable by Tenant with respect to such whole or partial calendar year. If the total of
the Center Expenses paid by Tenant for such whole or partial calendar year is more than the actual
Center Expenses payable by Tenant with respect to such whole or partial calendar year, then Landlord
shall credit the excess: first, against any outstanding Rent due from Tenant; and second, against,future
Center Expenses, to be paid by Tenant; provided that, if there are no future Center Expenses to be paid
by Tenant, then Landlord shall refund the excess to Tenant within thirty (30) days. If the total of the
Center Expenses paid by Tenant for such whole or partial calendar year is less than the actual amount
of the Center Expenses payable by Tenant with respect to such whole or partial calendar year, then
Tenant shall pay the amount of such deficiency with the next regular installment of Modified Gross
Rent unless the Termination Date has occurred, in which case Tenant shall pay any deficiency within
thirty (30) days after Landlord delivers Landlord's written statement.
5.9 Utilities. Tenant shall: (a) promptly pay all charges for sewer, water, gas, electricity, telephone,
and other utility services used in, on, at, or from, the Premises (all of which utilities shall be separately metered to
the Premises) (the "Utility Charges"); and (b) deliver to Landlord, upon demand, receipts or other satisfactory
evidence of payment of the Utility Charges.
ARTICLE VI.
ALTERATIONS AND MAINTENANCE OF AND REPAIRS TO THE PREMISES
6.1. Landlord Repairs. Landlord shall, at its expense: (a) keep the foundations and roof of the
Premises in good order, repair and condition; and (b) maintain the exterior walls of the Premises in a structurally
sound condition, except to the extent that there is damage caused by any act or omission of Tenant or its employees,
agents, contractors, invitees or licensees. Landlord shall be responsible for the installation and replacement of all
heating, ventilating, and cooling equipment and systems serving the Premises (the "HVAC Systems ") provided
however that the Landlord may bill the Tenant as Additional Rent if the Landlord's consultant determines with
reasonable certainty that the need to replace the HVAC Systems was as a result of the Tenant's misuse of it or the
Tenant's failure to notify the Landlord of its malfunctioning. The Landlord may enter into a maintenance contract
with a reputable company (the "Maintenance Contract "), pursuant to which Maintenance Contract such company
shall institute a regularly scheduled program of preventive maintenance and repair of the HVAC Systems to keep
and maintain such items in good order, condition, and repair at all times, and any such expenses incurred by the
Landlord as a result of such Maintenance Contract or any routine or otherwise insubstantial repairs shall be
considered a Common Expense allocable to this Premises only, unless the HVAC Systems service more than on
Tenant. Except as provided in this Section 6.1, Landlord shall not be obligated to make repairs, replacements or
improvements of any kind to or for the Premises, or any trade fixtures or equipment contained therein, all of which
such repairs, replacements or improvements shall be the responsibility of Tenant.
6.2. Tenant Repairs. Except for repairs to be performed by Landlord pursuant to Section 6. 1, Tenant
shall: (a) keep the Premises clean, neat, and safe, and in good order, repair and condition, including, without
limitation, that Tenant shall make all maintenance, repairs, alterations, additions, or replacements to the Premises as
may be required by any Law, or by fire underwriters or underwriters' fire prevention engineers; (b) keep all glass in
windows, doors, fixtures, skylights, and other locations clean and in good order, repair, and condition, and replace
glass that may be damaged or broken with glass of the same quality; and (c) paint and decorate the Premises as
necessary or appropriate to comply with the terms and conditions of this Section 6.2. The Tenant shall be
responsible for notifying the Landlord of any damage to, malfunctioning of, or apparent repairs necessary to be made
to the HVAC Systems or to the plumbing, electrical or other systems used by or for the Premises.
6.3. Tenant Alterations.
(a) Alterations. Tenant, at its sole cost and expense, may install in the Premises such improvements
and equipment as Tenant reasonably determines to be necessary or appropriate to conduct its business. Tenant, at its
cost and expense, also may make non- structural alterations or improvements to the interior of the Premises if: (i) the
cumulative cost of making such alterations or improvements is less than Three Thousand Dollars ($3,000.00); (ii)
Tenant delivers to Landlord written notice describing the proposed alteration or improvement with particularity, and
provides to Landlord copies of any plans and specifications for the alteration or improvement; and (iii) on the
Termination Date, Tenant surrenders the part of the Premises altered or improved in as good a condition as on the
date that Tenant accepts the Premises. Tenant shall not, without the prior written consent of Landlord, make any:
(1) alterations, improvements, or additions of or to the exterior of the Premises; or (2) except as described above,
structural or other alterations, improvements, or additions of or to any part of the Premises. All alterations,
improvements, or additions to the Premises, exclusive of moveable equipment, shall become the sole property of
Landlord on the Termination Date.
(b) Permits. Before making any alterations, improvements, or additions, Tenant shall: (i) obtain all
permits, licenses, and approvals necessary for the completion of the improvements, alterations, or additions; and (ii)
deliver to Landlord: (A) copies of such permits, licenses, and approvals; and (B) evidence reasonably satisfactory to
Landlord that Tenant has procured workers' compensation, builder's risk, general liability, and personal and
property damage insurance as Landlord reasonably may require. Tenant shall at Tenant's cost and expense: (1)
complete the construction of any alterations, improvements or additions in a good and workmanlike manner, and in
compliance with all Laws and all permits, licenses and approvals; and (2) assure that all contractors, subcontractors,
laborers, and suppliers performing work or supplying materials are paid in full.
(c) Liens. Tenant shall not suffer or cause the filing of any mechanic's or other lien against the
Premises or the Building. Tenant shall further not enter into any contract or agreement that provides explicitly or
implicitly that a lien may be attached against the Premises, the Building or any improvements If any mechanic's or
other lien is filed against the Premises, the Building, or any part thereof for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant, other than for the performance of Landlord's Work, then
Tenant shall: (i) cause such lien to be discharged of record within twenty (20) days after notice of the filing by
bonding or as provided or required by law; or (ii) provide evidence satisfactory to Landlord that the lien is being
contested by proceedings adequate to prevent foreclosure of the lien, together with indemnity satisfactory to
Landlord (in an amount equal to at least one hundred fifty percent (150 %) of the claimed lien) to Landlord within
thirty (30) days after notice of the filing thereof. All liens suffered or caused by Tenant shall attach to Tenant's
interest only. Nothing in this Lease shall be deemed or construed to: (1) constitute consent to, or request of, any
party for the performance of any work for, or the furnishing of any materials to, Tenant; or (2) give Tenant the right
or authority to contract for, authorize, or permit the performance of, any work or the furnishing of any materials that
would permit the attaching of a mechanic's lien to the Premises or the Building or Landlord's interest therein.
6.4. Si ns. Tenant shall not affix or maintain upon the exterior of the Premises or make visible from
the exterior any sign, advertising placard, name, insignia, trademark, or descriptive material, without the prior
written approval of Landlord, which approval shall not be withheld unreasonably. No such materials may be
displayed or attached which are against any applicable law or regulation.
ARTICLE VII.
USE.
7.1. Use of the Premises. At all time during the Tenn, Tenant shall:
(a) Use the Premises solely for Tenant's Use, as defined in Section l.l(c), doing business under
Tenant's Trade Name, as defined in Section 1.1(d), and for no other use or purpose;
(b) Tenant will open the Premises for business on the Commencement Date and operate one hundred
percent (100 %) of the Premises during the entire Tenn, without interruption, during at least the hours of 10:00 a.m.
through 6:00 p.m., Monday through Saturday, or such other minimum hours upon which Landlord may agree from
time to time with prior written consent, provided that such operation may be interrupted for such reasonable periods
as may be necessary to repair, restore, or remodel the Premises, or for purposes of taking inventory, Tenant shall
obtain the prior written consent of Landlord, which approval shall not be unreasonably withheld for such time
periods. Tenant will keep its sign and the interior of the Premises lighted at least one (1) hour past such closing
time. Tenant agrees that Tenant will open and close at the times set forth above. If Tenant either (i) opens for
business more than thirty (30) minutes late; or (ii) closes for business more than thirty (30) minutes early on more
than two (2) occasions in any Lease Year, Tenant will pay to Landlord as a further item of Additional Rent, the sum
of Two Hundred Fifty Dollars ($250.00) per occurrence thereafter.
(c) Remain fully fixtured, fully stocked, and fully staffed at all times.
(d) Conduct the business located on the Premises at all times in a high grade and reputable manner so
as to produce the maximum volume of sales and transactions and to help establish and maintain a high reputation for
the Building.
During the Tenn, Tenant will be considered to " erate" or be "Operating" in the Premises so long as Tenant is
open for business in compliance with this Section 7.1.
7.2. Covenant to Open. Tenant covenants that it will open and begin Operating in the Premises as of
the Effective Date.
7.3. Compliance with Law. Tenant shall promptly comply with all federal, state and local Laws and
ordinances and lawful orders and regulations affecting the Premises, and the health, cleanliness, safety, construction,
occupancy and use of same, in effect from time to time. Tenant shall promptly and fully comply with all federal,
state and local Laws and ordinances in effect from time to time prohibiting discrimination or segregation by reason
of race, color, religion, disability, gender or national origin or otherwise.
7.4. Operation by Tenant. Tenant covenants and agrees that it: will not place or maintain any
merchandise or vending machines outside the building on the Premises; will store garbage, trash, rubbish and other
refuse in rat -proof and insect -proof containers with adequate screening to hide such garbage, trash, rubbish and
refuse from view on the Premises and the Shopping Center, and will remove the same frequently and regularly, all at
Tenant's cost; will not permit any sound system to be audible or objectionable advertising medium to be visible
outside the Premises; will not commit or permit waste or a nuisance upon the Premises; will not permit or cause
objectionable odors to emanate or be dispelled from the Premises; will not distribute advertising matter to, in or upon
any portion of the Building; will not permit the loading or unloading or the parking or standing of delivery vehicles
outside any area designated therefore, nor permit any use of vehicles which will interfere with the use of any portion
of the Building; will not use the any portion of the Building for promotional activities, to include without limitation
rides, carnival type shows, entertainment, outdoor shows, automobile or other product shows; will comply with all
Laws, recommendations, ordinances, rules and regulations of governmental, public, private and other authorities and
agencies, including those with authority over insurance rates, with respect to the use or occupancy of the Premises,
and including, but not limited to, the Occupational Safety and Health Act ( "OSHA ") and the Americans With
Disabilities Act ( "ADA "), as the same may be amended from time to time. Tenant covenants and agrees that it will
not serve liquor or any other alcoholic beverages in or from the Premises unless Tenant first obtains the written
consent of Landlord, which may be granted or withheld in Landlord's sole and absolute discretion.
7.5. Storage. Tenant shall store in the building on the Premises only merchandise and products which
Tenant intends to sell at, in, or from the Premises within a reasonable time after receipt thereof.
7.6. Sales and Use. Tenant shall not permit, allow, or cause to be conducted in the Premises: (a) a
public or private auction; or (b) a sale that would indicate to the public that Tenant (i) is bankrupt, (ii) is going out of
business, or (iii) has lost or is preparing to terminate its possession of the Premises. The Premises shall not be used
except in a manner consistent with the general high standards of the neighborhood, and shall not be used in a
disreputable or immoral manner or in violation of federal, state or local Laws or ordinances. Tenant shall not operate
the Premises either in whole or in part as a clearance, outlet, off -price, or discount store, provided that nothing in this
Section 7.6 is intended to affect Tenant's pricing policies.
7.7. Emissions and Hazardous Materials.
(a) Emissions. Tenant shall not, without the prior written consent of Landlord:
i. make, or permit to be made, any use of the Premises or any portion thereof which emits, or
permits the emission of, an unreasonable amount of dust, sweepings, dirt, cinders, fumes or odors into the
atmosphere, the ground or any body of water, whether natural or artificial (including without limitation rivers,
streams, lakes, ponds, dams, canals, sanitary or storm sewers, or flood control channels), which is in violation of
any Laws;
ii. create, or permit to be created, any sound level which will interfere with the quiet enjoyment of
any real property by any tenant or occupant of the Building, or which will create a nuisance or violate any Laws;
iii. transmit, receive, or permit to be transmitted or received, any electromagnetic, microwave or other
radiation which is harmful or hazardous to any person or property in, on or about the Premises or the Building, or
which interferes with the operation of any electrical, electronic, telephonic or other equipment wherever located,
whether on the Premises or the Building;
iv. create, or permit to be created, any ground vibration that is discernible outside the Premises; or
V. produce, or permit to be produced, any intense glare, light or heat except within an enclosed or
screened area and then only in such manner that the glare, light or heat shall not be discernible outside the Premises.
(b) Hazardous Materials. Tenant shall be permitted to use and store those Hazardous Materials, as
defined below, that are used in the normal course of Tenant's Use at the Premises, so long as such Hazardous
Materials are used, stored, handled and disposed of in compliance with applicable Law. Subject to the exception
contained in the preceding sentence, Tenant shall not, without the prior written consent of Landlord, cause or permit,
knowingly or unknowingly, any Hazardous Material to be brought or remain upon, kept, used, discharged, leaked, or
emitted in or about, or treated at, the Premises or the Building. As used in this Lease, "Hazardous Material(s)" shall
mean any hazardous, toxic, infectious or radioactive substance, material, matter or waste which is or becomes
regulated by any federal, state or local Law, ordinance, order, rule, regulation, code or any other governmental
restriction or requirement, and shall include, but not be limited to, asbestos, petroleum products, and the terms
"Hazardous Substance' and "Hazardous Waste' as defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Sec. 9601 et seg. ( "CERCLA "), and the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Sec. 6901 et seq. ( "RCRA "), and the tern "Hazardous
Chemical" as defined in OSHA (hereinafter "Environmental Laws').
In addition to, and in no way limiting, Tenant's duties and obligations under this Lease, should Tenant
breach any of its duties and obligations as set forth in this Section 7.7(b), or if the presence of any Hazardous
Material(s) on the Premises results in contamination of the Premises, the Building, any land other than the Building,
the atmosphere, or any water or waterway (including without limitation groundwater), or if contamination of the
Premises or of the Building by any Hazardous Material(s) otherwise occurs for which Tenant is otherwise legally
liable to Landlord for damages resulting therefrom, Tenant shall Indemnify, as hereinafter defined, Landlord from
and against any Loss, as hereinafter defined, arising during or after the Tenn as a result of such contamination. The
term "Loss," in this Section 7.7(b) includes, without limitation, costs and expenses incurred in connection with any
investigation of site conditions or any cleanup, remediation, removal, fines, monitoring, or restoration work required
or imposed by any federal, state or local governmental agency or political subdivision because of the presence of
Hazardous Material(s) on or about the Premises or the Building, or because of the presence of Hazardous Material(s)
anywhere else which came or otherwise emanated from Tenant or the Premises. The indemnification contained in
this Section 7.7(b) shall survive the Tennination Date.
7.8. Inspections. Tenant shall permit Landlord and its employees, agents and contractors to enter the
Premises at reasonable times (or at any time in the event of an emergency) for the purpose of. (a) inspecting the
Premises; (b) making repairs, replacements, additions, or alterations to the Premises, or to the building in which the
Premises is located; and (c) showing the Premises to prospective purchasers, lenders, and tenants. During the last
one hundred and eighty (180) days of the Term, Landlord may put a "For Lease" sign in the storefront window of the
Premises.
7.9. Sidewalks. Tenant acknowledges that the use of the sidewalks adjoining the Premises is
controlled by the South Bend Board of Public Works (the "BPW" ). The Landlord makes no representation
concerning the availability of such use for dining or other purposes. Tenant understands that it must make
application to the BPW for a permit to use the adjoining sidewalks. Landlord shall not oppose such application.
ARTICLE VIII.
INSURANCE AND INDEMNIFICATION
8.1. Tenant's Liability Insurance. Tenant, at its expense, shall maintain during the Tenn, commercial
general liability insurance on the Premises covering Tenant as the named insured and identifying Landlord as an
"additional insured" with terns satisfactory to Landlord and with companies qualified to do business in the State, for
limits of not less than $700,000.00 for bodily injury, including death resulting therefrom, and personal injury for any
one (1) occurrence, $1,000,000.00 property damage insurance, or a combined single limit in the amount of
$6,000,000.00. At all times, Tenant shall maintain limits naming Landlord as an "additional insured" in an amount
sufficient to cover any possible liability Landlord may have pursuant the amounts set forth at Indiana Code § 34 -13-
3-4, as the same may be amended, superseded or recodified from time to time.
8.2. Hazardous Materials Coverage. Notwithstanding the above mentioned commercial general
liability insurance policy limit for Tenant, if Tenant does or intends to bring, possess, use, store, treat or dispose any
Hazardous Material in or upon the Premises or the Building, Tenant shall purchase additional public liability
insurance and supply Landlord with certificates of insurance reflecting the additional insurance, with coverage of no
less than $5,000,000.00 and purchase environmental impairment liability insurance with coverage of not less than
$5,000,000.00 with a deductible of not greater than $50,000.00 to insure that anything contaminated with or by the
Hazardous Material be removed from the Premises and /or the Building, and that the Premises and /or the Building be
restored to a clean, neat, attractive, healthy, sanitary and non - contaminated condition.
8.3. Dram Shot) Coveraee. In addition to the insurance required under this Article Vlll, for any such
period of time as Tenant shall serve liquor or other alcoholic beverages in or from the Premises, Tenant agrees to
maintain minimum limits of coverage of at least $2,000,000 covering "liquor law" liability (sometimes also known
as "dram shop" insurance) which shall insure Tenant, as the named insured, and Landlord, as the additional insured,
and all those claiming by, through or under Landlord, against any and all claims, demands or actions for personal or
bodily injury to, or death of, one person or multiple persons in one or more accidents, and for damage to property, as
well as for damages due to loss of means of support, loss of consortium, and the like so that at all times Landlord
will be fully protected against claims that may arise by reason of or in connection with the sale and dispensing of
liquor and alcoholic beverages in and from the Premises.
8.4. Tenant's Additional Insurance. Tenant shall comply with the provisions of the applicable
workers' compensation laws, and shall insure its liability thereunder. Tenant, at its expense, shall maintain plate
glass insurance covering all exterior plate glass in the Premises or shall be obligated to promptly replace any
damaged exterior glass, to the satisfaction of the Landlord within five (5) days of the occurrence of such damage. In
the event that the Tenant neither obtains insurance providing for the immediate repair of the damaged glass nor
repairs said damage to the satisfaction of the Landlord within five (5) days of the occurrence of such damage, the
Landlord may have the damaged glass repaired at the Tenant's expense.
8.5. Policies. All policies of insurance required by this Article to be maintained by Tenant shall: (a) be
in a form, and maintained with an insurer, reasonably satisfactory to Landlord; and (b) provide that such policies
shall not be subject to cancellation, termination, or change without written notice to Landlord at least thirty (30) days
in advance. Tenant shall deposit with Landlord the policy or policies of insurance required to be maintained by
Tenant pursuant to this Article VIII, or proper certificates of such insurance, duly executed by the insurance
company or the general agency writing such policies and effective not later than the Commencement Date. Tenant
shall deposit appropriate renewal or replacement policies or certificates with Landlord not less than ten (10) days
prior to the expiration of any such policy or policies. Tenant shall also furnish Landlord with certificates evidencing
such coverages from time to time upon Landlord's request. If Tenant shall fail to timely procure or renew any of the
insurance required under this Article Vlll, Landlord may obtain replacement coverage and the cost of same shall be
deemed Additional Rent payable by Tenant with the next installment of Rent thereafter becoming due and payable.
8.6. Indemnity.
(a) Definition of "Loss." The term "Loss," as used throughout this Lease, shall mean any and all
claims, demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions, causes of action, and
losses of any and every kind and nature (including, without limitation, sums paid in settlement of claims and for
attorney's fees and court costs).
(b) Definition of "Indemnify." The tern `Indemnify," as used throughout this Lease, shall mean that
Tenant shall indemnify Landlord, save it harmless and, at Landlord's option and with attorneys approved in writing
by Landlord, defend Landlord, and its contractors, agents, employees, members, managers, officers, and
mortgagees, if any, from any Loss arising out of the condition specified in the particular indemnity provision.
(c) General Indemnity. Except for loss, injury or damage caused solely by the willful misconduct of
Landlord, its employees, contractors, or agents, Tenant covenants to Indemnify Landlord for any Loss in connection
with or arising from any use or condition of the Premises or occasioned wholly or in part by any act or omission of
Tenant, its agents, contractors, employees, licensees, invitees or visitors, occurring on or about the Premises and in
the case of Tenant, its agents, contractors or employees occurring on or about the Building. Except for loss, injury
or damage caused by the negligent acts or willful misconduct of Tenant, its employees, contractors, invitees,
licensees, visitors or agents, Landlord covenants to Indemnify Tenant, and save it harmless, from and against any
and all claims, actions, damages, injuries, accidents, liability and expense, including reasonable attorneys' fees, in
connection with or arising from, or occasioned wholly or in part by, any act or omission of Landlord, its agents,
contractors or employees occurring on or about the Building, excluding the Premises.
(d) Covenant to Hold Harmless. Landlord shall be defended and held harmless by Tenant from any
liability or claims for damages to any person or any property in or upon the Premises unless caused by the willful act
of Landlord, including but not limited to the person and property of Tenant and its officers, agents, employees, and
shall pay all expenses incurred by Landlord in defending any such claim or action, including without limitation
attorney fees of Landlord and any judgment or court costs. All property kept, stored or maintained in the Premises
shall be so kept, stored or maintained solely at the risk of Tenant
The Landlord shall not be liable for damage caused by hidden defects or failure to keep said Premises in
repair, and shall not be liable for any damage done or occasioned by or from plumbing, gas, water, steam, or other
pipes, or sewerage, or the bursting or leaking of plumbing or of any plumbing or heating fixtures or waste or soil
pipe existing in connection with the Building or Premises, nor for damage occasioned by water, nor for any damages
arising from negligence of co- tenants or other occupants of the Building, or the agents, employees or servants of any
of them, or of any owners or occupants of adjacent or contiguous property.
The Landlord shall not be liable for any injury to the Tenant, its employees and agents or any other person,
occurring on said Premises, irrespective of whether said injury is caused by a defect in said Premises or by reasons
of said Premises becoming out of repair or arising from any other cause whatsoever, and the Landlord shall not be
liable for damage to Tenant's property or to the property of any other person which may be located in or upon said
Premises and the Tenant agrees to indemnify and save harmless the Landlord from any and all claims arising out of
injuries to persons or property occurring on said Premises.
8.7. Release of Subrogation. Each party hereto does hereby release and discharge the other party from
any liability, which the released party would have had (but for this section) to the releasing party, arising out of or in
connection with any accident or occurrence or casualty: (a.) which is or would be covered by a fire and extended -
coverage policy with vandalism and malicious mischief endorsement or by a sprinkler leakage or water damage
policy, regardless of whether or not such coverage is being carried by the releasing party, and (b.) to the extent of
recovery under any other casualty, which accident, occurrence or casualty may have resulted in whole or in part from
any act or neglect of the released party, its officers, agents or employees; and insofar as Tenant is the releasing party,
it will also release the other tenants in the Building from any such liability as if the other tenants were each a
released party under this section. Notwithstanding anything contained in this Lease to the contrary, Landlord shall
not be liable for any damage to person or party arising from the negligent act or omission or willful misconduct of
any other tenant or occupant of the Building, and Tenant hereby expressly waives any claim for such damages.
8.8. The Tenant will not allow said Premises to be used for any purpose that will increase the rate of
insurance thereon, nor to be occupied in whole or in part by any other person.
ARTICLE IX.
CASUALTY AND CONDEMNATION.
9.1. Casualty.
(a) Insubstantial Damage. If the Premises is damaged by fire or any other casualty (the "Casualty
Damage'), and the estimated cost to repair such Casualty Damage is less than fifty percent (50 %) of the estimated
cost to replace the Premises, then Landlord shall repair such Casualty Damage so long as sufficient insurance
proceeds recovered as a result of such Casualty Damage remain after: (i) Landlord's mortgagee has withheld any
amount of the proceeds to which it is entitled, if any; and (ii) deduction for any expenses incurred in collecting the
insurance proceeds. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord be
required to repair or replace: (1) the improvements to the Premises made by Tenant; or (2) any trade fixtures,
equipment, or inventory of Tenant (or any other person or entity) located on, in, or about the Premises.
(b) Substantial Damage. If (i) there is Casualty Damage to the Premises, and the cost to repair such
Casualty Damage is equal to or greater than fifty percent (50 %) of the estimated cost to replace the Premises; (ii)
there is Casualty Damage to the building of which the Premises is a part, and the cost to repair such Casualty
Damage is equal to or greater than twenty -five percent (25 %) of the cost to replace such building; or (c) there is
Casualty Damage to the buildings (taken in the aggregate) in the Building, and the cost to repair such Casualty
Damage is equal to or greater than twenty -five percent (25 %) of the cost to replace such buildings; then Landlord
may elect either to: (1) repair or rebuild the Premises, the building of which the Premises is a part, or the aggregate
buildings in the Building, as applicable; or (2) terminate this Lease upon delivery of written notice to Tenant within
ninety (90) days after the occurrence of the Casualty Damage.
(c) Partial Abatement of Rent. Base Rent shall be abated proportionately (based upon the proportion
that the unusable space in the Premises due to the Casualty Damage bears to the total space in the Premises) for each
day that the Premises or any part thereof is unusable by reason of any Casualty Damage.
(d) Repair of Tenant Improvements. If Landlord is required or elects to repair the Premises, then
Tenant shall repair or replace: (i) the alterations, improvements, and additions to the Premises made by Tenant;
and/or (ii) any equipment of Tenant located on, in, or about the Premises.
(e) Notice. Tenant shall give Landlord prompt written notice of any Casualty Damage in or to the
Premises or the Common Areas of which Tenant has knowledge.
9.2. Condemnation. If: (a) all or a substantial part of the Premises is taken or condemned for public or
quasi- public use under any statute or by the right of eminent domain; or (b) all or a substantial part of the Premises is
conveyed to a public or quasi - public body under threat of condemnation (collectively, the "Condemnation .'); and the
Condemnation renders the Premises unsuitable for use for Tenant's Use, then, at the option of either Landlord or
Tenant exercised within ninety (90) days after the Condemnation occurs: (i) this Lease shall terminate as of the date
possession of all or such part of the Premises is taken by, or conveyed to, the condemning authority; (ii) all Rent
shall be apportioned as of the date that possession of all or such part of the Premises is taken by, or conveyed to, the
condemning authority; and (iii) all obligations hereunder, except those due or mature, shall cease and terminate. If
there is a Condemnation with respect to: (A) more than twenty -five percent (25 %) of the square footage of the
building of which the Premises is a part; or (B) more than twenty -five percent (25 %) of the aggregate square footage
of the Building; then Landlord, at its option, exercised within ninety (90) days after the Condemnation occurs, may
elect to terminate this Lease as of the date possession of such square footage is taken by, or conveyed to, the
condemning authority, and: (i) all Modified Gross Rent shall be apportioned as of the date that possession of such
square footage is taken by, or conveyed to, the condemning authority; and (ii) all obligations hereunder, except those
due or mature, shall cease and terminate. All compensation awarded or paid for the Condemnation (the
"Condemnation Proceeds ") shall belong to and be the sole property of Landlord; provided that Landlord shall not be
entitled to the amount of any Condemnation Proceeds awarded or paid solely to Tenant for loss of business or costs
and expenses of relocation and removing improvements and equipment. If neither Landlord nor Tenant elects to
terminate this Lease pursuant to this Section 9.2, then Landlord shall be responsible for the performance of all work
necessary to make the Premises usable by Tenant; provided that Landlord shall not be obligated to incur costs for
such work in excess of the Condemnation Proceeds awarded or paid to Landlord and remaining after: (y) Landlord's
mortgagee has withheld any amount of the proceeds to which it is entitled, if any; and (z) deduction for any expenses
incurred in collecting the Condemnation Proceeds. If neither Landlord nor Tenant elects to terminate this Lease
pursuant to this Section 9.2, or if any Condemnation is temporary in nature, then Base Rent shall be abated
proportionately (based upon the proportion that the that area Premises taken by, or conveyed to, the condemning
authority bears to the total space in the Premises) for each day that the Premises or any part thereof is unusable by
reason of the Condemnation.
ARTICLE X.
SURRENDER.
10.1. Surrender of Leased Premises. Except as herein otherwise expressly provided in this Article X,
Tenant shall surrender and deliver up the Premises, together with all property affixed to the Premises, to Landlord at
the expiration or other termination of this Lease or of Tenant's right to possession hereunder, without fraud or delay,
in good order, condition and repair except for reasonable wear and tear after the last necessary repair, replacement,
or restoration is trade by Tenant, free and clear of all liens and encumbrances, and without any payment or
allowance whatsoever by Landlord on account of any improvements made by Tenant.
10.2. Removal of Certain Property. All furniture and business equipment furnished by or at the expense
of Tenant shall be removed by or on behalf of Tenant at or prior to the expiration or other tennination of this Lease
or of Tenant's right of possession hereunder, but only if, and to the extent, that the removal thereof will not cause
physical injury or damage to the Premises or necessitate changes or repairs to the same. Tenant repair and restore
any injury or damage to the Premises arising from such removal so as to return the Premises the condition described
in Section 10.1 above, or alternatively, Tenant shall pay or cause to be paid to Landlord one hundred ten percent
(110 %) of the cost of repairing or restoring injury or damage with such costs to be considered Additional Rent and
shall be deemed due and payable as of the date on which surrender by Tenant is required under this Lease.
10.3. Property Not Removed. Any personal property of Tenant which shall remain in or upon the
Premises after Tenant has surrendered possession of the Premises shall be deemed to have been abandoned by
Tenant, and at the option of Landlord, such property: (a) shall be retained by Landlord as its property; (b) shall be
disposed of by Landlord in such manner as Landlord shall determine, without accountability to any person; or (c)
shall be removed by Tenant within three (3) business days at Tenant's expense upon written request from Landlord
or such Tenant fails to remove such property within such timeframe Landlord may remove such property at Tenant's
expenses, charging Tenant one hundred ten percent (110 %) of the costs incurred by Landlord to remove said items,
which funds shall be due immediately upon notification of Tenant of such charges. Landlord shall not be responsible
for any loss or damage occurring to any property owned by Tenant remaining in the Premises after Tenant surrenders
possession thereof.
10.4. Survival of-Terms. The terms of this Article X and other terms of this Lease referred to herein
shall survive any termination of this Lease.
ARTICLE XI.
DEFAULT.
11.1. Events of Default. Each and all of the following events shall be deemed an "Event of Default" by
Tenant under this Lease:
(a) Nonpayment. Tenant's failure to pay Base Rent, Additional Rent, or other sums or charges that
Tenant is obligated to pay by any provision of this Lease when due.
(b) Lapse of Insurance. Any failure to maintain the insurance coverages required to be maintained by
Tenant under this Lease.
(c) All Other Lease Violations. Tenant's failure to perform or observe any other covenant, condition,
or agreement of this Lease, which failure is not cured within thirty (30) days after the giving of notice thereof by
Landlord specifying the items in default unless such default is of such nature that it cannot be cured within such
thirty (30) day period, in which case no Event of Default shall occur so long as the Tenant shall commence the
curing of the default within such thirty (30) day period and shall thereafter diligently prosecute the curing of same;
provided, however, if the Tenant shall default in the performance of any such covenant or agreement of this Lease
more than one time in any twelve (12) month period notwithstanding that such default shall have been cured by
Tenant, the second and further defaults in said twelve (12) month period may be deemed by Landlord, in its sole
discretion, an Event of Default without the ability for cure.
(d) Falsification of Information. If Tenant, any guarantor of Tenant's obligations under this Lease, or
any agent of Tenant falsifies any report in any material respect or misrepresents other information in any material
respect required to be furnished to Landlord pursuant to this Lease.
(e) Merger or Consolidation. If Tenant is merged or consolidated with any other entity, or there is a
transfer of a controlling interest in Tenant, other than as permitted in Section 13.1(b) of this Lease.
(f) Tenant's or Guarantor's Death, Dissolution or Liquidation. The death of Tenant or any guarantor
of Tenant's obligations under this Lease; or the commencement of steps or proceedings toward the dissolution,
winding up, or other termination of the existence of Tenant or of any guarantor of Tenant's obligations, or toward
the liquidation of either of their respective assets.
(g) Bankruptcy. The commencement of a case under any chapter of the United States Bankruptcy
Code by or against Tenant or any guarantor of Tenant's obligations hereunder, or the filing of a 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 the 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.
(h) Assignment or Attachment. The making of an assignment by Tenant or any guarantor of Tenant's
obligations hereunder for the benefit of its creditors, or if in any other manner Tenant's interest in this Lease passes
to another by operation of law, including, without limitation, by attachment, execution, or similar legal process,
which is not discharged or vacated within thirty (30) days, except as permitted under this Lease.
0) Appointment of Receiver or Trustee. The appointment of a receiver or trustee for the business or
property of Tenant or any guarantor of Tenant's obligations hereunder, unless such appointment shall be vacated
within ten (10) days after its entry.
0) Inability to Pay. The admission in writing by Tenant or any guarantor of Tenant's obligations
under this Lease of its inability to pay its debts when due.
(k) Breach by Guarantor. The breach by any guarantor of any of that guarantor's obligations under its
guaranty.
(1) As Otherwise Provided. The occurrence of any other event described as a default elsewhere in the
Lease or any amendment thereto, regardless of whether such event is defined as an "Event of Default."
11.2. 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) Satisfy Tenant Obli atg ions. Landlord may perform, on behalf of and at the expense of Tenant, any
obligation of Tenant under this Lease which Tenant has failed to perform and of which Landlord has given Tenant
notice (entering upon the Premises for such purpose, if necessary), the cost of which performance by Landlord, plus
interest thereon at the lesser of (i) the highest rate permitted by law, or (ii) eighteen percent (18 %) per annum from
the date of such expenditure, and reasonable cost and expense incurred by Landlord, shall be deemed Additional
Rent and shall be payable by Tenant to Landlord with the first Rent installment thereafter becoming due and
payable. The performance by Landlord of any Tenant obligation under this Section 11.2(a) shall not be construed
either as a waiver of the Event of Default or of any other right or remedy of Landlord with respect to such Event of
Default or as a waiver of any term or condition of this Lease. Notwithstanding the provisions of this Section 11.2(a)
and regardless of whether an Event of Default shall have occurred, Landlord may exercise the remedy described in
this Section 11.2(a) without any notice to Tenant if Landlord, in its good faith judgment, believes that it or the
Premises would be materially injured by failure to take rapid action or if the unperformed obligation of Tenant
constitutes an emergency.
(b) Tennination of Lease. Landlord may terminate this Lease, by written notice to Tenant, without
any right by Tenant to reinstate its right by payment of Rent due or other performance of the terms and conditions
hereof. Upon such termination, Tenant shall immediately surrender possession of the Premises to Landlord, and
Landlord shall, in addition to all other rights and remedies that Landlord may have, immediately become entitled to
receive from Tenant: (i) an amount equal to the aggregate of all Base Rent and Additional Rent which then remains
due to Landlord but unpaid by Tenant; (ii) reasonable costs and expenses incurred by Landlord in connection with a
re -entry or taking of possession of the Premises; (iii) reasonable costs and expenses incurred by Landlord in
connection with making alterations and repairs for the purpose of reletting the Premises; (iv) reasonable attorneys'
fees; (v) the unamortized value of the Construction Allowance, if any.
M Tennination of Possessory Rights. Landlord may terminate Tenant's rights to possession of the
Premises without terminating this Lease or Tenant's obligations hereunder and Tenant shall continue to be obligated
to pay all Base Rent and Additional Rent which then remains due to Landlord but unpaid by Tenant and Tenant shall
continue to be obligated for future Base Rent and Additional Rent as the same comes due under this Lease.
(d) Acceleration of Rent. Landlord may, whether it terminates the Lease or Tenant's possessory
rights to the Premises, accelerate and declare immediately due all of the Base Rent and Additional Rent (as
reasonably estimated by Landlord) that otherwise would have been due from the date of the Event of Default
through the stated expiration date of the Initial Term or any Extended Term, the option for which has been
exercised.
(e) Rent Minus Fair Market Value. Landlord may declare immediately due and payable from Tenant,
in addition to any damages or other amounts becoming due from Tenant under any other provision of this Lease, an
amount equal to the difference between the Base Rent and Additional Rent reserved in this Lease from the date of
the Event of Default through the stated expiration date of the Initial Term or any Extended Term, the option for
which has been exercised, and the then -fair market value of the Premises for the same period.
(f) Other Remedies. Pursue any legal or equitable remedy allowed by applicable laws of the State.
11.3. Failure to Surrender. If Tenant fails to surrender the Premises upon expiration of the Term or
earlier termination of the Lease pursuant to Section 11.2(b), or termination of Tenant's possession rights, the
provisions of Section 3.3 shall apply, and Landlord may, without further notice and with or without process of law,
enter upon and re -enter the Premises and possess and repossess itself thereof, by force, summary proceedings,
ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the
Premises and may have, hold and enjoy the Premises and the right to receive all rental and other income of and from
the same.
11.4. Reimbursement of Landlord's Costs in Exercising Remedies. Landlord may recover from Tenant,
and Tenant shall pay to Landlord upon demand, such reasonable and actual costs and expenses as Landlord may
incur in recovering possession of the Premises, placing the same in good order and condition and repairing and
altering the same for reletting, and all other reasonable and actual costs and expenses, commissions and charges
incurred by Landlord in reletting and otherwise exercising any remedy provided herein or as a result of any Event of
Default by Tenant hereunder (including, without limitation, reasonable attorneys' fees).
11.5. Remedies Are Cumulative. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by statute.
11.6. Counterclaim. If Landlord commences any proceedings for non payment of Rent, Tenant will not
interpose any counterclaim of any nature or description in such proceedings. This shall not, however, be construed
as a waiver of Tenant's right to assert such claims in a separate action brought by Tenant. The covenants to pay Rent
and other amounts due hereunder are independent covenants and Tenant shall have no right to hold back, offset or
fail to pay any such amounts for any reason whatsoever, except as may be specifically provided for herein to the
contrary, it being understood and acknowledged by Tenant that Tenant's only recourse is to seek an independent
action against Landlord.
11.7. Bankruptcv.
(a) Assumption of Lease. In the event that Tenant shall become a Debtor under Chapter 7 of the
United States Bankruptcy Code (the "Code') or a petition for reorganization or adjustment of debts is filed
concerning Tenant under Chapters 11 or 13 of the Code, or a proceeding is filed under Chapter 7 and is transferred
to Chapters 11 or 13, the Trustee or Tenant, as Debtor and as Debtor In- Possession, may not elect to assume this
Lease unless, at the time of such assumption, the Trustee or Tenant has:
Cured or provided Landlord "Adequate Assurance," as defined below, that:
A. Within ten (10) days from the date of such assumption the Trustee or Tenant will cure all
monetary defaults under this Lease and compensate Landlord for any actual pecuniary loss
resulting from any existing default including, without limitation, Landlord's reasonable costs,
expenses, accrued interest as set forth in Section 11.2 of the Lease, and attorneys' fees incurred as
a result of the default and/or to enforce the terms hereof;
B. Within thirty (30) days from the date of such assumption the Trustee or Tenant will cure
all non - monetary defaults under this Lease; and
C. The assumption will be subject in all respects to all of the provisions of this Lease.
ii. For purposes of this Section 11.7, Landlord and Tenant hereby acknowledge that, in the context of
a bankruptcy proceeding of Tenant that this Lease is a lease of real property within a Building and, at a minimum
"Adequate Assurance" shall mean:
A. The Trustee or Tenant has and will continue to have sufficient unencumbered assets after
the payment of all secured and priority obligations and administrative expenses to assure Landlord
that the Trustee or Tenant will have sufficient funds to fulfill the obligations of Tenant under this
Lease, and to keep the Leased Premises stocked with merchandise and properly staffed with
sufficient employees to conduct a fully Operational, actively promoted business in the Leased
Premises;
B. The bankruptcy court shall have entered an order segregating sufficient cash payable to
Landlord, and/or the Trustee or Tenant shall have granted a valid and perfected first lien and
security interest and/or mortgage in property of Trustee or Tenant acceptable as to value and kind
to Landlord, to secure to Landlord the obligation of the Trustee or Tenant to cure the monetary
and /or non - monetary defaults under this Lease within the time periods set forth above; and
C. The Trustee or Tenant at the very least shall deposit a sum equal to one (1) month's Rent
to be held by Landlord (without any allowance for interest thereon) to secure Tenant's future
performance under the Lease.
(b) Assignment of Lease. If the Trustee or Tenant has assumed the Lease pursuant to the provisions
of this Section 11.7 for the purpose of assigning Tenant's interest hereunder to any other person or entity, such
interest may be assigned only after the Trustee, Tenant or the proposed assignee have complied with all of the terms,
covenants and conditions of Section 13.1 herein, including, without limitation, those with respect to Additional Rent
and the use of the Premises only as permitted in Article VII herein; Landlord and Tenant hereby acknowledging that
such terms, covenants and conditions are commercially reasonable in the context of a bankruptcy proceeding of
Tenant. Any person or entity to which this Lease is assigned pursuant to the provisions of the Code shall be deemed
without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of
such assignment. Any such assignee shall upon request execute and deliver to Landlord an instrument confirming
such assignment and assumption in form acceptable to Landlord.
(c) Adequate Protection. Upon the filing of a petition by or against Tenant under the Code, Tenant, as
Debtor and as Debtor in Possession, and any Trustee who may be appointed hereby agree to adequately protect
Landlord as follows:
i. To immediately perform each and every obligation of Tenant under this Lease until such time as
this Lease is either rejected or assumed by order of the bankruptcy court;
ii. To pay all monetary obligations required under this Lease, including, without limitation, the
payment of Base Rent and such Additional Rent charges payable hereunder which is considered reasonable
compensation for the use and occupancy of the Premises;
iii. Provide Landlord a minimum thirty (30) days' prior written notice, unless a shorter period is
agreed to in writing by Landlord, of any proceeding relating to any assumption of this Lease or any intent to
abandon the Premises, which abandonment shall be deemed a rejection of this Lease, and
iv. To perform to and for the benefit of Landlord as otherwise required under the Code.
The failure of Tenant to comply with the above shall result in an automatic rejection of this Lease and the
automatic stay under Section 362 of the Code shall automatically be terminated as to Landlord and the Premises.
(d) Accumulative Rights. The rights, remedies and liabilities of Landlord and Tenant set forth in this
Section 11.7 shall be in addition to those which may now or hereafter be accorded, or imposed upon, Landlord and
Tenant by the Code.
(e) Changes in Code. If the Code is changed or amended such that any references in this Section 11.7
to particular provisions or terms of art lose the meaning that they have as of the Effective Date, such provisions or
terms of art of this Lease shall be deemed to be amended to reflect such changes in the Code.
ARTICLE XI1.
ESTOPPEL CERTIFICATES, ATTORNMENT, AND SUBORDINATION.
12.1. Estoppel Certificates. Tenant and Landlord agree to execute and deliver, within ten (10) days after
request therefor by the other party, a statement, in writing, certifying to Landlord and/or any party designated by
Landlord, or Tenant and /or any party designated by Tenant, as the case may be, that: (a) this Lease is in full force
and effect; (b) the Commencement Date; (c) that Rent is paid currently without any off -set or defense thereto, (d) the
amount of Rent, if any, paid in advance; (e) that there are no known uncured defaults by Landlord or Tenant, or
stating those known and claimed, provided that, in fact, such facts are accurate and ascertainable, and (f) any other
information reasonably requested.
12.2. Attomment. In the event any proceedings are brought for the foreclosure of, or in the event of
conveyance by deed -in -lieu of foreclosure of, or in the event of exercise of the power of sale under any mortgage
made by Landlord covering the Premises, Tenant hereby attorns to the successor -in- interest of Landlord and
covenants and agrees to execute an instrument in writing reasonably satisfactory to same whereby Tenant attorns to
such successor -in- interest and recognizes such successor -in- interest as Landlord hereunder.
12.3. Subordination.
(a) Landlord shall have the right at any time and from time -to -time to create security interests in the
form of a mortgage, deed of trust or other similar lien or encumbrance (a "Mortgage ") upon or affecting Landlord's
fee estate in the Premises, or any part thereof, and the rights of Tenant under this Lease shall be subject and
subordinate to any such Mortgage; provided, however, that in the event of any foreclosure or sale under any such
Mortgage or the delivery by Landlord of any deed -in -lieu of foreclosure to the holder of any such Mortgage, then
the holder of any such Mortgage agrees not to disturb Tenant's possession so long as Tenant is not in default under
the terns of this Lease beyond any notice and /or cure periods provided for under this Lease and attorns to such
holder or the foreclosure purchaser as Landlord under this Lease. Said subordination shall be self - operative and no
further instrument of subordination shall be necessary unless required by any such Mortgage holder, in which event
Tenant agrees to, within ten (10) days after request by Landlord or the Mortgage holder, execute any agreement
reasonably required by such Mortgage holder to memorialize said subordination and to memorialize the terns of any
related agreements between Tenant and such Mortgage holder. Any holder of any of any such Mortgage is herein
referred to as "Landlord's Mortgagee(s)." Notwithstanding the foregoing, a Landlord's Mortgagee may at any time
subordinate its Mortgage to this Lease without Tenant's consent by notice in writing to Tenant, and thereupon this
Lease shall be deemed prior to such Mortgage without regard to their respective dates of execution and delivery and,
in that event, such Landlord's Mortgagee shall have the same rights with respect to this Lease as though it had been
executed prior to the execution and delivery of any such Mortgage and had been assigned to such Landlord's
Mortgagee.
(b) ,, This Lease shall be subject to and subordinate to all easements, restrictions, liens, encumbrances,
rights -of -way, or other matters affecting the Premises of record.
ARTICLE XII1.
ASSIGNMENT AND SUBLETTING
13.1. Assienment and Sublettin
(a) Tenant shall not sublet, mortgage, encumber or in any manner transfer, in whole or in part, this
Lease, the Premises or any estate or interest in said Premises or Lease. Except as expressly permitted herein, Tenant
shall not assign this Lease or any estate or interest therein or allow the occupancy thereof by any person or entity
other than Tenant, without Landlord's prior written consent, which may be granted or withheld in Landlord's sole
and absolute discretion. Consent by Landlord to one or more assignments of this Lease shall not operate to exhaust
Landlords rights under this Article XIII. In the event that Tenant, with or without the previous consent of Landlord,
does assign or in any manner transfer this Lease or any estate or interest therein or sublet the Premises or any part
thereof, or allow the occupancy thereof by any person or entity other than Tenant, Tenant shall not be released from
any of its obligations under this Lease unless a release is given, in writing, by Landlord.
(b) If this Lease is assigned or the Premises or any part thereof occupied by any entity other than
Tenant, Landlord may collect rent from the assignee or occupant and apply the same to the Rent herein reserved, but
no such assignment, occupancy or collection of Rent shall be deemed a waiver of any restrictive covenant contained
in this Section 13.1 or the acceptance of the assignee or occupant as tenant, or a release of Tenant from the
performance by Tenant of any covenants on the part of Tenant herein contained. Any sublease of the Premises shall
be void. Landlord shall have the right, at any time, to immediately remove an occupant or than Tenant from the
Premises along with any possession of said occupant, which shall be deemed to have been abandoned if not claimed
by occupant within three (3) business days of their removal, and the Landlord's acceptance of rent from the
occupant shall in no way waive any rights the Landlord may have against the occupant. The Tenant shall indemnify
the Landlord for any actions, claims or demands trade by the occupant or its assigns against the Landlord. . Any
assignment: (x) as to which Landlord has consented or is deemed to have consented; or (y) which is required by
reason of a final nonappealable order of a court of competent jurisdiction; or (z) which is made by reason of and in
accordance with the provisions of any law or statute, including, without limitation, the laws governing bankruptcy,
insolvency or receivership, shall be subject to all terns and conditions of this Lease, and shall not be effective or
deemed valid unless, at the time of such assignment:
i. Each assignee shall assume the obligations of this Lease by executing, acknowledging and
delivering to Landlord, before the effective date of such assignment, a written assumption agreement in form and
substance reasonably satisfactory to Landlord;
ii. Landlord shall receive affidavits, made by both Tenant and its assignee through an officer or
principal of each such entity, stating the full consideration to be received by Tenant as assignor as a result of said
assignment, including, if any, payments for Tenant's improvements, proposed rent (which includes, without
limitation, all monthly charges allocated to common area maintenance, insurance, real property taxes, and utility
charges) and any other payments;
iii. Each assignee shall have submitted to Landlord a current financial statement, audited by a
certified public accountant, showing a net worth and working capital in amounts determined by Landlord to be
sufficient to assure the future performance by such assignee of Tenant's obligations hereunder;
iv. Each assignee shall have submitted to Landlord, in writing, evidence satisfactory to Landlord of
substantial experience in operating a business similar to that offered by Tenant and permitted under Section 1.1(c) of
this Lease or a business otherwise requested by the Landlord and in operating said business in a space or volume
comparable to that contemplated under this Lease;
V. The business reputation of each assignee shall meet or exceed generally acceptable commercial
standards;
vi. The use of the Premises by each assignee shall not violate, or create any potential violation of,
applicable Laws, codes or ordinances, nor violate any other agreements affecting the Premises, Landlord or other
occupants in the Building; and
vii. Tenant shall pay Landlord the sum of One Thousand Five Hundred Dollars ($1,500.00) as
reimbursement to Landlord for administrative and legal expenses incurred by Landlord in connection with any such
assignment.
(c) In the event that Tenant desires to assign this Lease, Tenant shall give notice to Landlord setting
forth the terms of the proposed assignment. Tenant shall advise Landlord of the name of the proposed assignee,
shall furnish Landlord with the information required by Landlord with respect to the proposed assignee, and
Landlord shall advise Tenant, within sixty (60) business days after receipt of such notice and all required
information from Tenant, that Landlord either consents or refuses to consent to an assignment to the proposed
assignee.
13.2. Assignment by Landlord. Landlord, at any time and from time to time, may assign its interest in
this Lease, and, if: (a) Landlord assigns its interest in this Lease; and (b) the assignee assumes all of the obligations
of Landlord under the terms and conditions of this Lease; then Landlord and its successors and assigns (other than
the assignee of this Lease) shall be released from any and all liability hereunder.
ARTICLE XIV.
MISCELLANEOUS
14.1. Security Deposit. Contemporaneously with the execution of this Lease, Tenant shall deposit the
Security Deposit, as defined in Section 1.1(i), with Landlord. Landlord: (a) shall hold the Security Deposit without
liability to Tenant for interest; and (b) may commingle the Security Deposit with its other funds. The Security
Deposit, or any portion thereof, may be applied by Landlord to cure any default by Tenant under this Lease, without
prejudice to any other remedy or remedies that Landlord may have on account of such application. Upon any such
application by Landlord, Tenant shall pay to Landlord on demand the amount applied by Landlord to cure such
default so that the Security Deposit is restored to its original amount. If Landlord conveys the Premises during the
Term: (A) Landlord may turn the Security Deposit over to Landlord's grantee or successor; and (B) Tenant shall
release Landlord from any and all liability with respect to the Security Deposit. If Tenant faithfully performs its
obligations under the terns and conditions of this Lease, then Landlord shall return to Tenant the amount of the
Security Deposit not applied by Landlord to cure defaults by Tenant, without interest, within thirty (30) days after
the latter of (y) the Termination Date; or (z) the date that Tenant has surrendered possession to Landlord in
accordance with the terms and conditions of this Lease.
14.2. Guarantv. This Lease shall not become effective until the execution of a personal guaranty of this
Lease in the form attached hereto as Exhibit F (the "Guaranty"). Upon execution of this Lease and the Guaranty, the
executed Guaranty shall be attached to this Lease as Exhibit F- 1.
14.3. Notices. Any notice, demand, request or other instrument (any "Notice') which may be or is
required to be given under this Lease shall be in writing and shall be deemed given and received: (a) on the date of
delivery when delivered in person (with receipt for delivery); (b) three (3) business days after deposit with the U.S.
Postal Service, when sent by United States certified or registered mail, return receipt requested, postage prepaid; or
(c) on the next business day following deposit of any such Notice with a national overnight delivery carrier (with
receipt evidencing such delivery) such as, but not limited to, Federal Express or UPS. Any Notice to be delivered in
person or by mail shall be addressed: (a) if to Landlord, at the address set forth in Section 1.1(e) hereof, or at such
other address as Landlord may designate by written notice; and (b) if to Tenant, at the address set forth in Section
1. I hereof, or at such other address as Tenant may designate by written notice.
14.4. Waiver. One or more waivers of any covenant or condition by Landlord shall not be construed as
a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by Landlord to or of
any act by Tenant requiring Landlord's consent or approval shall not be deemed to render unnecessary Landlord's
consent or approval to or of any subsequent similar act by Tenant, except as otherwise provided herein.
14.5. Entire Agreement. This Lease and the exhibits attached hereto set forth all the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises, and
there are no covenants, promises, agreements, conditions or understandings, either oral or written, between Landlord
and Tenant other than as are herein set forth. No alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by each party.
14.6. Remedies Cumulative. The rights and remedies of Landlord and Tenant hereunder shall be
cumulative, and no one of them shall be deemed or construed as exclusive of any other right or remedy hereunder, at
law, or in equity. The exercise of any one such right or remedy by Landlord or Tenant shall not impair its standing
to exercise any other such right or remedy.
14.7. Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than
the Rent due hereunder shall be deemed to be other than on account of the Rent first due hereunder. No endorsement
or statement on any check or letter accompanying any check or payment of Rent shall be deemed to be an accord and
satisfaction, and Landlord may accept any such check or payment without prejudice to the right of Landlord to
recover the balance of such Rent or to pursue any other right or remedy.
14.8. Relationship. Nothing contained herein shall be deemed or construed to create between the parties
any relationship other than that of landlord and tenant.
14.9. Information. Tenant shall provide to Landlord, upon request, accurate financial statements of
Tenant and/or any guarantors of this Lease (which, in the event Tenant or a guarantor is an entity, shall be certified
by the highest - ranking financial officer of Tenant or guarantor).
14.10. Construction. The laws of the State in which the Premises is located shall govern the validity,
performance, and enforcement of this Lease. The invalidity or unenforceability of any term or condition of this
Lease shall not affect the other terms and conditions, and this Lease shall be construed in all respects as if such
invalid or unenforceable term or condition had not been contained herein. The captions of this Lease are for
convenience only and do not in any way limit or alter the terns and conditions of this Lease. Whenever in this Lease
a singular word is used, it also shall include the plural wherever required by the context and vice versa. All
references in this Lease to periods of days shall be construed to refer to calendar, not business, days, unless business
days are specified. This Lease shall be recorded, but a failure to record shall not affect the effectiveness of this
Lease. All Exhibits referenced in this Lease are attached hereto and incorporated herein by reference.
14.11. Force Majeure. Notwithstanding anything to the contrary set forth herein, if Landlord or Tenant is
delayed in, or prevented from observing or performing any of its obligations hereunder (other than the payment of
any amount of money due hereunder) as the result of: (a) an act or omission of the other party; or (b) any other cause
that is not within the control of the delayed or prevented party (including, without limitation, inclement weather, the
unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of
public utility providers); then: (A) such observation or performance shall be excused for the period of the delay; and
(B) any deadlines for observation or performance shall be extended for the same period.
14.12. Counterparts. This Lease may be executed in separate counterparts, each of which when so
executed shall be an original, but all of which together shall constitute but one and the same instrument.
14.13. Successors and Assigns. Except as otherwise expressly provided herein, this Lease, and all of the
terms and conditions hereof, shall inure to the benefit of, and be binding upon, the respective heirs, executors,
administrators, successors, and assigns of Landlord and Tenant. All indemnities set forth herein shall survive the
Termination Date.
14.14. Authority. Each person executing this Lease represents and warrants that: (a) he or she has been
authorized to execute and deliver this Lease by the entity for which he or she is signing; and (b) this Lease is the
valid and binding agreement of such entity, enforceable in accordance with its terns.
14.15. Exculpation. If there is a breach or default by Landlord under this Lease, Tenant shall look solely
to the equity interest of Landlord in the Premises and any rentals derived therefrom; provided that in no event shall
any judgment be sought or obtained against any individual person or entity comprising Landlord.
14.16. Equal Opportunity Obligation. Tenant agrees not to discriminate against any employee or
applicant for employment, to be employed by Tenant with respect to his or her hire, tenure, terns, conditions or
privileges of employment or any matter directly or indirectly related to employment, because of his or her race,
color, religion, sex, handicap, national origin, or ancestry. Breach of this covenant may be regarded as a material
breach of the Lease. Tenant further agrees execute and deliver an affidavit attesting to the tenns of this provision in
the form set forth in Exhibit E.
14.17. Anti - Collusion Requirement. By executing this Lease, Tenant certifies that it has not, nor has any
member, employer, representative or agent of its firm, directly or indirectly, entered into or offered to enter into any
combination, collusion, or agreement to receive or pay, that it has not received nor paid any sum of money or other
consideration for the negotiation and execution of this Lease other than that which is set out herein. Tenant further
agrees to execute and deliver an affidavit attesting to the terns of this provision in the form set forth in Exhibit E.
14.18. Early Termination/Relocation. Tenant and Landlord shall each have the independent right to
terminate this Lease ( "Termination Right ") with thirty (30) days prior written notice to the other party ( "Termination
Notice'). Landlord shall also have the independent right to relocate Tenant for any reason ( "Relocation Right ")
with thirty (30) days prior written notice to Tenant ( "Relocation Notice).
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date set forth above.
ATTEST:
Printed Name and Title
ATTEST:
Tinted Name and Title
"LANDLORD"
CITY OF SOUTH BEND, INDIANA,
DEPARTMENT OF REDEVELOPMENT
by and through the South Bend Redevelopment Commission
Printed Name and Title
"TENANT"
THE GORDON GROUP,
d /b /a Edible Arrangements
Printed Name and Title
(Signature Page ofLease)
STATE OF INDIANA )
SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this day of
, 2012, personally appeared , known to be to be the
of the South Bend Redevelopment Commission and acknowledged execution of the foregoing Lease on behalf of
said Commission.
IN WITNESS WHEREOF, 1 have hereunto subscribed my name and affixed my official seal.
, Notary Public
Resident of St. Joseph County, Indiana
My commission expires:
STATE OF INDIANA )
SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this day of
2012, personally appeared , known to be the
of and acknowledged execution of the foregoing Lease
on behalf of said Tenant.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My commission expires:
, Notary Public
Resident of St. Joseph County, Indiana
(Notary Page of Lease)
INDEX TO EXHIBITS
Exhibit A
Legal Description of Building
Exhibit B
Site Plan of Building
Exhibit C
Description of Premises
Exhibit D
Landlord's Work
Exhibit E
Non - Debarment, Non - Collusion and Non - Discrimination Affidavit
EXHIBIT A
Leeal Description of Building
The ground level of the Leighton Center Parking Garage, which is the retail shops commonly referred to as
the Michigan Street Shops, South Bend, Indiana, which shops are more particularly described as follows:
A parcel of land located in the Original Plat of the Town of South Bend, Leighton Plaza Replat,
and a part of the Northwest Quarter of Section 12, Township 37 North, Range 2 East, Portage
Township, City of South Bend, St. Joseph County, and described as follows:
Beginning at the intersection of the North right of way line of Jefferson Blvd and the
West right of way line of Michigan Street; thence North along said West right of way line
of Michigan Street a distance of 220 feet, more or less; thence West parallel with said
North line of Jefferson Blvd, a distance of 53 feet, more or less; thence South parallel
with said West line of Michigan Street to the North line of said Jefferson Blvd; thence
East along said North line of Jefferson Blvd to the place of beginning. Containing 0.268
acres, more or less, subject to all legal easements and rights of way. Said description is
the land occupied by the existing store fronts in the Leighton Plaza Building fronting on
Michigan Street in downtown South Bend.
EXHIBIT B
Site Plan of Buildin2 and Description of Premises
EXHIBIT C
Description of Premises
The Premises commonly referred to as 123 S. Michigan Street, South Bend, Indiana, which is comprised of
1,530 square feet located on the ground level of the Leighton Center Parking Garage, which is a part of the retail
shops commonly referred to as the Michigan Street Shops, South Bend, Indiana, which shops are more particularly
described at Exhibit A of the Lease to which this Exhibit C is attached.
EXHIBIT D
Landlord's Work
The Landlord shall deliver the premises in "as -is" condition (the "Landlord's Work ").
EXHIBIT E
NON - DEBARMENT, NON - COLLUSION AND
NON - DISCRIMINATION AFFIDAVIT
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
The undersigned, being duly sworn on oath, hereby certifies, on behalf of
( "Tenant'), as follows:
1. That the undersigned is duly authorized and is competent to certify to the statements contained
herein on behalf of Tenant.
2. That neither it nor its principals are presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department
or agency.
3. That Tenant has not, nor has any other member, representative, or agent of the firm, company,
corporation or partnership represented by the Finn, entered into any combination, collusion or agreement
with any person relative to the price to be offered by any person nor to prevent any person from making an
offer nor to induce anyone to refrain from making an offer and that this offer is made without reference to
any other offer.
4. That Tenant hereby agrees to abide by the following nondiscri mination commitment, which shall
be made a part of any contract that Tenant may henceforth enter into with the City of South Bend, Indiana
or any of its agencies, boards or commissions:
Tenant agrees not to discriminate against any employee or applicant for employment in
the performance of this contract with privileges of employment, or any matter directly or
indirectly related to employment, because of race, religion, color, sex, handicap, national
origin or ancestry. Breach of this provision may be regarded as a material breach of the
contract.
By:
Name:
Title:
Subscribed and sworn to before me this day of 2012.
, Notary Public
Resident of St. Joseph County, Indiana
My commission expires: