<PAGE>
EXHIBIT 10.12
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
TABLE OF CONTENTS PARAGRAPH
<TABLE>
<C>
<C>
1. DEMISED PREMISES
2
2. LEASE TERM
2
3. RENTAL
3
A. CONSTRUCTION OF IMPROVEMENTS
3
5. COMPLETION OF CONSTRUCTION
5
6. ACCEPTANCE OF LESSEE'S BUILDING
6
7. USE OF PREMISES
8
8. EQUIPMENT, FIXTURES AND SIGNS
8
9. MAINTENANCE BY LESSOR
8
10. MAINTENANCE BY LESSEE
9
11. CARE OF PREMISES
9
12. INSURANCE
9
13. ACCESS BY LESSOR
10
14. UTILITIES AND WASTE DISPOSAL
11
15. CONDEMNATION
11
16. DEFAULT CLAUSE
11
17. ASSIGNMENT AND SUBLETTING
12
18. MUTUAL WAIVER OF SUBROGATION
13
19. FIRE CLAUSE
13
20. TAXES
14
21 LESSEE'S FIXTURES, EQUIPMENT AND
GOODS
15
22. ALTERATIONS, IMPROVEMENTS, OR STOCKROOM
ADDITIONS
15
23. COVENANT OF TITLE AND QUIET ENJOYMENT
15
24. TITLE INSURANCE
16
25. RIGHT TO MORTGAGE
16
26. EXTENSION OR RENEWAL
17
27. NOTICES
17
28. SHORT FORM LEASE
17
29. CONSENT
17
30. COMMON AREAS
17
31. MISCELLANEOUS
18
32. RIGHT OF FIRST REFUSAL
19
</TABLE>
EXHIBITS
<TABLE>
<S> <C>
A. SHOPPING CENTER LEGAL
DESCRIPTION
A-l WAL-MART TAX PLAT LEGAL
DESCRIPTION
B. CONSTRUCTION PLANS AND
SPECIFICATIONS FOR WAL-MART STORE AND SHOPPING
CENTER PARKING LOT
C. SITE/GRADING/UTILITY
PLANS
D. MAINTENANCE DATA
SHEET
E. REAL PROPERTY TAX
GUIDELINE
F. WAL-MART PROJECT COSTS
SHEET
G. EASEMENTS WITH
COVENANTS AND RESTRICTIONS AFFECTING LAND H. ESTOPPEL FORM
I. SNDAFORM
</TABLE>
<PAGE>
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
LEASE AGREEMENT
THIS LEASE
AGREEMENT is executed in five (5) duplicate originals and made
as of the 30th day of May 2003 and is
effective on even date herewith
("Effective Date") by and between
Bright-Meyers Coursey Associates, L.P., a/an
Tennessee limited partnership, of 537
Market Street, Suite 400, Chattanooga,
Tennessee, Federal Tax I.D. 58-2267635
"Lessor"), and WAL-MART REAL ESTATE
BUSINESS TRUST, a Delaware statutory trust,
with offices at 702 S.W. Eighth
Street, Bentonville, Arkansas 72716 and a
mailing address of 2001 S.E. Tenth
Street, Bentonville, Arkansas 72716-0550,
(hereinafter "Lessee").
WITNESSETH:
1. DEMISED
PREMISES;
A. Lessor, in consideration of the covenants and agreements
hereinafter contained, does hereby demise
and lease to Lessee for the Lease Term
(as such term is defined herein) the
Wal-Mart Tax Plat (as defined in Exhibit
A-1 including a/an 39,910 square foot
building together with all other
improvements thereon (the Wal-Mart Tax
Plat, such building and improvements are
hereinafter collectively the "Demised
Premises") in the Shopping Center to be or
being constructed on the real property
described in Exhibit A attached hereto
and made a part hereof (hereinafter the
"Shopping Center"), to have and to hold
during the Lease Term (as defined in
Paragraph 2). The Demised Premises and the
Shopping Center are located in the City of
Baton Rouge, in East Baton Rouge
Parish, Louisiana.
B. It is understood and agreed that throughout the Lease Term
(as
hereinafter defined) of this Lease, Lessee
and its agents, employees, customers,
contractors, subtenants, licensees and
concessionaires shall have a nonexclusive
right to use the Common Areas (as defined
in Paragraph 30) together with all
improvements and appurtenances now and
hereafter located therein, including, but
not limited to the parking areas in the
Shopping Center and the rights of
entrance and exit over all streets,
alleyways, parking lots upon and appurtenant
to the Shopping Center, in common, with the
agents, employees and customers of
other stores in the Shopping Center, for
the purposes of ingress and egress on
foot and by motor vehicles and for parking
motor vehicles in the Shopping
Center, for -loading and unloading
merchandise and for the display of
merchandise and for the use of seasonal
structures or sales on the parking lot
and sidewalk on Wal-Mart Tax Plat unless
otherwise specifically designated on
Exhibit C.
2. LEASE
TERM: To have and to hold the same, together with all
improvements and appurtenances now or
thereafter located therein or thereon,
including the rights of entrance and exit
over all streets, alleyways, parking
lots and areaways adjacent thereto, for and
during the full term of twenty (20)
years, commencing on the earlier of (i) the
dale on which. Lessee opens the
Demised Premises for business to the
public, or (ii) the date which is sixty
(60) days following the completion of the
Demised Premises and Common Area
improvements (the "Commencement Date") and
expiring twenty (20) years following
the Commencement Date, inclusive, subject,
however, to the provisions of
Paragraph 6 hereof as to the effective
Commencement Date of this Lease, and
subject, farther, to the provisions of
Paragraph 26 concerning extensions or
renewals hereof (hereinafter "Lease Term").
The term "Lease Year" shall have the
following
2
<PAGE>
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
meanings: the first "Lease Year" shall be
the period which commences on the
Commencement Date of the Lease Term of this
lease and terminates on the
next-following January 31st. Each
subsequent Lease Year (other than the last
Lease Year) shall be a period which
commences on February 1st of one year and
terminates on the next-following January
31st. The last Lease Year shall be the
period which commences on the last February
1st occurring during the term of
this Lease and terminates on the last day
of the Lease Term. The parties
recognize that the first Lease Year and the
last Lease Year may be periods of
less than twelve (12) full calendar
months.
3. RENTAL:
Beginning on the Commencement Date and continuing through the
Lease Term, Lessee shall pay to
the Lessor as rent for the Demised Premises a
fixed annual rent (hereinafter the
"Rent") of four hundred twenty four thousand
six hundred forty two and 40/100
Dollars ($424,642.40), based upon $10.64 per
square foot of leased building
space per year, payable in advance in equal
successive installments of thirty
five thousand three hundred eighty six and
87/100 Dollars ($35,386.87) each,
on the first day of each and every calendar
month during the Lease Term,
subject to the provisions of Paragraph 6 relating
to (i) adjustment for a fractional
first month and (ii) partial payment as set
forth therein. Lessee agrees that
in the event any monthly installment of Rent
is not paid by the 10th of the
month in which same is due, additional rent
equal to ten percent (10%) of the
monthly rental shall be paid by Lessee for
each such month. Lessor agrees to
provide Lessee with a fully completed and
properly signed US Department of
Treasury form W-9 at least sixty (60) days
prior to the Commencement Date. No
Rent shall be due or payable until Lessee
receives the form W-9.
4.
CONSTRUCTION OF IMPROVEMENTS:
A. Lessee shall provide Lessor with Construction Plans and
Specifications (as defined below) which
shall meet state building codes.
Following Lessor's receipt of the
Construction Plans and Specifications (as
defined below) Lessor, at Lessor's sole
cost and expense, shall promptly
commence to construct alt improvements,
including without limitation, Lessee's
building, mechanical and electrical
facilities, the driveways, sidewalks,
curbing, curb cuts and parking area in
accordance with the construction plans
and specifications for the Demised Premises
attached hereto and marked Exhibit B
and also in accordance with the
site/grading/utility plans for the Shopping
Center attached hereto and marked Exhibit C
and in accordance with "Wal-Mart's
Design Criteria and Process" a copy of
which Developer has previously been
provided and accepted (collectively
referred to herein as the "Construction
Plans and Specifications"). Any
modifications to the Construction Plans and
Specifications required to comply with
local building codes shall be prepared at
Lessor's expense, and any additional cost
of construction occasioned thereby
shall be paid by Lessor. Lessee shall
reimburse Lessor for all other change
orders to the Construction Plans and
Specifications which are authorized,
initiated and approved by Lessee and which
result in additional cost to Lessor.
Lessor's construction contract shall
provide for a construction supervisor for
Lessee's building and other improvements
and an additional construction
supervisor for the remainder of the
Shopping Center.
Lessor shall wire those parking lot lights designated "W-M" on
Exhibit C into the Demised Premises. In
regard to the parking area, Lessor
agrees to construct a parking lot ratio of
at least five parking spaces per one
thousand
3
<PAGE>
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
(1,000) square feet of gross leasable
building area in the Shopping Center with
the same ratio independently provided with
respect to the building on the
Demised Premises and that portion of the
parking lot serving the Demised
Premises. In addition, Lessor agrees to
record in the real property records of
East Baton Rouge Parish, the "Easements
with Covenants and Restrictions
Affecting Land" attached hereto as Exhibit
G. as an encumbrance and restriction
upon any outparcels adjacent to or fronting
any of the Shopping Center and
return to Lessee an executed and recorded
copy thereof.
The
Shopping Center facility is shown on the plans marked Exhibit C.
which
Lessor shall have sealed by a licensed
architect or engineer. Such plans include
without limitation the location and size of
all buildings to be constructed,
utilities, parking areas, tenants' delivery
service areas and existing and final
site preparation grades for the Shopping
Center. No improvements or alterations
which substantially vary from the approved
plans may be made without the prior
written consent of Lessee. Lessor shall
also furnish Lessee the soil test
analysis and parking lot paving design as
set forth in Subparagraph B below.
Lessor warrants and guarantees that all
work shall be performed in a good and
workmanlike manner and in conformance with
the above-mentioned Construction
Plans and Specifications, all of which are
subject to final acceptance and
approval by Lessee. Any building(s)
constructed adjacent to the Demised Premises
shall be constructed and operated in a
manner which shall preserve "Unlimited
Area Code Classification" of the Demised
Premises and shall maintain the same
structural classification, site clearances,
and sprinklered rating as the
Demised Premises.
B. Pre-construction Conference- Prior to Lessor's beginning
construction and pouring of the footings
and foundation for the building located
upon the Demised Premises, Lessor will give
Lessee at least two (2) weeks notice
of and arrange for a Pre-construction
Conference to be held at the job site and
to be attended by Lessor, Lessee, the
general contractor, and the job
superintendents. Prior to this Conference,
which shall be held at least one week
before footings and foundations are to be
installed. Lessor shall submit to
Lessee for approval a letter of
certification for the parking lot paving design
from a licensed engineer, acceptable to
Lessee based upon the soil borings
report. At the Pre-construction Conference,
Lessor shall present the following
items to Lessee:
1. Copy of
the Building Permit
2. Copies
of the Driveway Entrance Permits
3. Copy of
Satisfactory Soil Density Tests
4.
Evidence of signed subcontracts
5. Copy of
site plan, approved by all regulatory authorities for
the Parish of East Baton Rouge, Louisiana.
6. Copy of
the Construction Schedule Bar Chart
7. A
schedule showing when Lessor will submit to Lessee shop
drawings and equipment itemization for the following:
a.
Structural steel and roof deck
4
<PAGE>
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
b.
Sprinkler system
c. Mill
work
d.
Storefront glass
e. Roofing
material
f. Door
hardware
g.
Plumbing fixtures
h.
Electrical switchgear and light fixtures
i. Facia
metal
5.
COMPLETION OF CONSTRUCTION: Lessor shall commence construction of
the
Shopping Center including the Demised
Premises on or before August 15, 2003, and
shall diligently proceed thereafter. If
Lessor should fail to commence and be
diligently proceeding with construction of
the Shopping Center, including the
Demised Premises, on or before August 15,
2003, Lessee shall have the right and
privilege to either (i) terminate this
Lease and in such case Lessee shall have
no further obligation or liability of any
kind or nature whatsoever, or (ii)
purchase the Shopping Center, including the
Demised Premises, for two million
three hundred twenty four thousand nine
hundred ninety seven dollars
($2,324,997.00) plus the amount of any
construction work that has already been
performed by Lessor on the Shopping Center.
The dollar value of the uncompleted
construction work on the Demised Premises
and the dollar value of the completed
work on the Shopping Center, excluding the
Demised Premises, shall be certified
by an architect or engineer of Wal-Mart's
choosing and shall be binding on
Developer and Wal-Mart. All such
certifications shall be based on the
Construction Plans. Should Lessee elect to
purchase the Shopping Center,
including the Demised Premises, pursuant to
this paragraph, such purchase shall
occur within sixty (60) days of Lessee's
notifying Lessor of such election. The
words "commence construction" as used
herein means the completion of foundations
of the building to be constructed upon the
Shopping Center, including the
Demised Premises, in accordance with the
Construction Plans and Specifications.
It is agreed by the parties that the timely
possession of the Shopping Center,
including the Demised Premises, is a
material inducement to Lessee's execution
of this Lease and that the date of
completion of the Demised Premises according
to Construction Plans, and the completion
of the Common Areas of the Shopping
Center, including the "future right-of-way"
and the permitting and installation
of a fully operational traffic signal at
the intersection of Coursey Boulevard,
Market Drive and the "future right-of-way",
shall be no later than December 1,
2003, and is hereinafter referred to as the
"Completion Date." If the Demised
Premises, the Common Areas of the Shopping
Center, including the "future
right-of-way" and the permitting and
installation of a fully operational traffic
signal, are not completed according to the
Construction Plans and Specifications
by the Completion Date, Lessee shall have
the option of either (a) terminating
this Lease and in such case Lessee shall
have no further obligation or liability
of any kind or nature whatsoever; (b)
purchasing the Shopping Center, including
the Demised Premises, in accordance with
the terms and conditions set forth
earlier herein; or (c) establishing a new
Completion Date which is agreeable to
Lessee and Lessor subject to the damages
set forth herein. It is further
understood by both parties that the
Shopping Center including the
5
<PAGE>
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5323-00
Demised Premises may be completed earlier
than the aforementioned date. Lessee
will accept a reasonably earlier possession
date; however, in any event, Lessor
agrees to give Lessee ninety (90) days
advance written notice ("Ninety Day
Notice") of the date upon which the
Shopping Center including the Demised
Premises are to be completed. If the
Shopping Center including the Demised
Premises (including the installation and
operation of any and all signing which
includes Lessee's which is Lessor's
responsibility) ate not completed according
to the Construction Plans and
Specifications on the earlier of the Completion
Date or the date established by the Ninety
(90) Day Notice, and in the event
Lessee does not elect to purchase the
Shopping Center, then Lessor shall pay
Lessee liquidated damages in the amount of
Five Thousand and No/100 Dollars
($5,000.00) per day beginning December 1,
2003, until said building and related
improvements are ready for possession. Such
damages have been determined by
Lessor and Lessee to be reasonable and
adequate to compensate Lessee for
Lessor's failure to deliver the Shopping
Center including the Demised Premises
completed according to the Construction
Plans and Specifications on the date
established by the ninety (90) day notice.
Said damages may be deducted by
Lessee from Rent thereafter due to Lessor
under this Lease.
For the
purposes of this Paragraph 5, except, however, the provision
concerning delivery of possession after
Lessor has given the Ninety (90) Day
Notice, the Lessor or any successor in
interest shall not be considered in
breach of, or in default of, the
obligations set forth herein in the event of
enforced delay in the performance of or
inability to perform such obligations
due to acts of God, the public enemy,
fires, floods, epidemics, quarantine
restrictions, and unusually severe weather
("Enforced Delay"); it being the
purpose and intent of this paragraph that
in the event of the occurrence of any
such enforced delay, the time or times for
performance of the obligations of
Lessor with respect to this Lease shall be
extended for the period of the
enforced delay, provided, that the party
seeking the benefit of the provisions
of this paragraph shall, with-in five (5)
days after the beginning of any
enforced delay, have first notified the
other party thereof in writing, and of
the cause or causes thereof, and requested
an extension for the period of the
enforced delay. Should any Enforced Delay
extend for a period of sixty (60)
consecutive days, the Lessee shall have the
right to terminate this Agreement.
6.
ACCEPTANCE OF LESSEE'S BUILDING: Upon delivery of possession of
the
Demised Premises to Lessee, Lessor will
complete and/or send to Lessee the
following:
a. Copy of
the Roofing Warranty;
b.
Certification by a licensed soils lab engineer in the state
where the project is located that all earthworks has been
constructed according to the contract documents;
c.
Certification by a licensed testing lab engineer in the state
where the project is located that concrete has been placed in
accordance with the specifications;
d. Paving - copy of the
boring log and plan showing location of
borings and Certification by a licensed testing lab engineer
in the state where the project is located that concrete and
asphalt paving has been placed according to the
specifications;
6
<PAGE>
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
e.
Certification from the sprinkler contractor that the sprinkler
system has been designed and installed according to the
contract documents and other applicable requirements;
f. Copies
of HVAC warranties and Lessor's assignment of such
warranties to Lessee;
g. Final
list of the General Contractor and all Subcontractors;
h.
Maintenance Data Sheet (as shown in Exhibit D attached hereto
and made a part hereof) completed for the Demised Premises;
i.
Wal-Mart Project Costs Sheet (as shown in Exhibit F attached
hereto and made a part hereof);
j.
Certificates of insurance as required herein;
k.
Completion of the Real Property Tax Guidelines attached hereto
as Exhibit E:
l. A copy
of the permanent Occupancy Permit for the Demised
Premises;
m.
Construction Completion Punchlist acknowledged as completed
and performed in its entirety by the Wal-Mart Store Manager or
Construction Manager for the Demised Premises;
n. A fully
executed and properly recorded copy of Exhibit G:
o. A fully
executed and properly recorded Short Form Lease as
provided in this Lease; and
p. An
As-Built Topographic Survey certified by an engineer
licensed in the state where the Demised Premises are located
and in compliance with Exhibit C.
q. All
governmental and regulatory approvals, including but not
limited to the certificate of occupancy, required prior to
Lessee's being able to open for business,
r. The
resubdivision plat required to transfer title,
s. The
permitting and installation of a fully operational traffic
signal at the intersection of Coursey Boulevard, Market Drive
and the "future right-of-way".
Fifteen (15) days before Lessee's building and related
improvements
are to be completed, Lessee shall be
permitted to enter the Demised Premises for
the purpose of storing and/or installing
fixtures, equipment and merchandise and
preparing for opening of Lessee's business;
provided, that such entry by Lessee
shall not hinder Lessor in completion of
Lessee's building and related
improvements. Such entry by Lessee shall
not constitute (i) acceptance of the
Demised Premises as being completed or (ii)
the Commencement Date. In any event
Lessee shall have at least a total of sixty
(60) days following Lessee's entry
to the Demised Premises to prepare for the
opening of business in the Demised
Premises, unless Lessee elects to open its
business earlier. In the event that
the Commencement Date is not the first day
of a calendar month, Lessee shall, on
the first day of the calendar month
immediately following the Commencement Date,
pay Lessor with the first full monthly
payment of Rent an amount equal to the
pro rata portion of Rent for the number of
days from the Commencement Date to
the end of such fractional month. Rent for
any fractional month at the end of
the Lease Term shall also be prorated.
Immediately after the Lease Term hereof
has been ascertained, the parties shall
execute an amendment to this Lease
indicating the actual commencement and
termination dates. After opening, Lessee
shall be obligated to pay only one-half
(1/2) of the monthly installments of
Rent until Lessor has fully completed the
Demised
7
<PAGE>
Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
Premises and related improvements according
to the Construction Plans and
Specifications and has provided Lessee with
(i) all the items (a) through (p)
above enumerated in this Paragraph 6, and
(ii) a copy of the executed amendment
to this Lease indicating the actual
commencement date and termination dates, as
referred to in this Paragraph 6. Upon
satisfactory completion of the above
items, Lessee shall pay to Lessor a sum
equal to any rentals withheld pursuant
to the above.
7. USE OF
PREMISES: Lessor agrees that the Demised Premises may be used
for any lawful purpose. It is expressly
agreed that nothing contained in this
Lease Agreement shall be construed to
contain a covenant, either express or
implied, to either commence the operation
of a business or thereafter
continuously operate a business in the
Demised Premises. Lessor recognizes and
agrees that Lessee may, at Lessee's sole
discretion and at any time during the
term of this Lease, cease the operation of
its business in the Demised Premises;
and Lessor hereby waives any legal action
for damages or for equitable relief
which might be available to Lessor because
of such cessation of business
activity by Lessee.
8.
EQUIPMENT. FIXTURES AND SIGNS: Lessee shall have the right to
erect,
install, maintain and operate on the
Demised Premises such equipment, fixtures
and signs as Lessee may deem advisable,
subject to local ordinances. Lessee may
install its freestanding pylon sign at the
location shown on Exhibit C. Lessor
agrees to include Lessee's freestanding
pylon sign as a part of any submissions
or applications made on behalf of the
Shopping Center and use its best efforts
to have such signage included in any
permits or consents obtained by applicable
governmental authorities. It is understood
that any -work of any kind made and
done under this Paragraph shall be made and
done at Lessee's sole cost, and
Lessee agrees to indemnify and hold Lessor
harmless from any and all mechanics'
liens that may be filed by reason thereof,
in the event of the ultimate removal
of any personal property, equipment or
fixtures, including signs, Lessee agrees
to repair any damage resulting
therefrom.
9.
MAINTENANCE BY LESSOR:
A. Lessor shall maintain the Demised Premises in good condition
and
repair, including the replacement thereof,
during the first year of Lessee's
occupancy. Lessor shall make any repair or
replacement to the Demised Premises
resulting from defective materials and/or
workmanship or construction not in
accordance with the aforementioned plans
and specifications. If Lessor, within
fifteen (15) days after Lessee shall give
written notice to Lessor, shall fail
to make the repairs or replacements
required of Lessor herein, or in the event
of an emergency which, in the opinion of
Lessee, renders such notice
impracticable, Lessee may, at its option,
make the repairs or replacements, in
which event the Lessor covenants to
reimburse Lessee for the cost thereof and
for ten percent (10%) of said cost for
administration fees. If within fifteen
(15) days after Lessee has given such
notice to Lessor, Lessor shall fail to
reimburse Lessee for the cost of such work
and the administration fee, Lessee
may deduct such costs from Rent and/or any
other sums then or thereafter due to
Lessor under this Lease. Notice shall be
deemed given as provided hereinafter in
Paragraph 27.
8
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
B. Lessor further agrees to make all repairs to the Demised
Premises
and to do all painting and decorating when
such repairs and/or painting and
decorating are necessitated by the
occurrence of perils actually covered by
Lessee's All-Risk hazard insurance or by
the act or omissions of the Lessor or
anyone under its control, including but not
limited to agents, servants or
invitees, or by the acts or omissions of
any other tenants in the Shopping
Center.
C. Lessee may conduct a warranty walk through inspection prior
to
its first full year of occupancy and
provide to Lessor a list of any defects for
Lessor's repair pursuant to the one year
construction warranty provided for in
Paragraph 9A and such items shall be
repaired by Lessor prior to Lessee assuming
maintenance responsibility pursuant to
Paragraph 10.
10.
MAINTENANCE BY LESSEE: Subject to the obligation of Lessor pursuant
to
Paragraph 9 during the Lease Term, Lessee,
at its sole cost and expense shall
maintain the entire Demised Premises,
including without limitation, repairing
and/or replacing HVAC system, thereof and
other structural components of the
building, in good condition and repair
throughout the term hereof, reasonable
wear and tear and the effects of time
excepted. This work may be performed by
Lessee's employees or by others, at
Lessee's discretion. Lessee shall maintain
the parking lot lights designated "W-M" on
Exhibit C. Lessor agrees to assign or
cause its contractors to assign to Lessee
all contractors' or subcontractors'
guarantees or warranties which relate to
any construction work concerning which
Lessee shall have the obligation to make
repairs. At the expiration of the Lease
or any renewal hereof, Lessee agrees to
surrender promptly the Demised Premises
to Lessor in the same condition as when
received, ordinary wear and tear,
effects of time and destruction by fire,
the elements or other unavoidable
casualties excepted.
11. CARE
OF PREMISES; During the Lease Term, Lessee agrees to keep the
Demised Premises in a reasonably neat and
clean condition, shall refrain from
permitting any unreasonable nuisance or
fire hazard therein, shall permit no
unlawful or immoral practice to be carried
on within the Demised Premises within
its knowledge or consent by it or any
person and shall at all times comply in
its occupancy and use of the Demised
Premises with all city and county
ordinances and with all State and Federal
laws and regulations relating thereto.
12.
INSURANCE;
A. Beginning with the Effective Date hereof, and until the
Commencement Date of the Lease, Lessor
shall procure and pay the premium for a
Comprehensive General Liability Policy of
insurance in the amounts of Five
Million Dollars ($5,000,000.00) with
respect to injuries to any one person, Five
Million Dollars ($5,000,000.00) with
respect to any one accident, and Five
Million Dollars ($5,000,000.00) with
respect to property damage to protect
Lessee and Lessor against liability for
such injury to persons and such damage
upon find within the Demised Premises.
B. During the Lease Term Lessee shall procure and pay the
premium
for liability insurance in the amounts of
Five Million Dollars ($5,000,000.00)
with respect to injuries to any one person,
Five Million Dollars ($5,000,000.00)
with respect to any one accident, and Five
Million Dollars ($5,000,000.00) with
respect to property damage to protect
Lessee and Lessor against liability for
such injury to persons and such damage upon
and within the Demised Premises.
Notwithstanding anything to the contrary
contained herein, as long as Lessee's
net worth shall exceed
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
One Hundred Million Dollars
($100,000,000.00), it shall have the right to
self-insure. In addition, during the Lease
Term, Lessee agrees to carry All-Risk
hazard insurance on the Demised Premises
for an amount providing coverage for
the full replacement cost of the Demised
Premises. Said insurance policy shall
provide that it shall not be canceled
except on thirty (30) days prior written
notice to Lessor. Notwithstanding anything
to the contrary contained herein, as
long as Lessee's net worth shall exceed One
Hundred Million Dollars
($100,000,000.00), it shall have the right
to self-insure. In the event of
either partial or total destruction of the
Demised Premises, as defined in
Paragraph 19 below, Lessee shall assign the
proceeds of said insurance policy to
Lessor who shall use the proceeds pursuant
to Paragraph 19 below. In the event
Lessee is self-insuring at the time of such
casualty, Lessee shall provide funds
(in an amount not to exceed the amount that
would have been provided if Lessee
had carried the "All Risk" Policy provided
for in the Paragraph 12) to Lessor so
that Lessor can remedy any such loss.
Lessee agrees upon written request, to
name Lessor and Lessor's mortgagee as
additional insured parties under the
policies required by this Paragraph 12 and
to deliver to said Lessor and
Lessor's mortgagee certificates evidencing
such coverage
C. During the Lease Term, Lessor shall procure and pay the
premium
for a Comprehensive General Liability
Policy of insurance to in the amount of
Five Million Dollars ($5,000,000.00) with
respect to injuries to any one person,
Five Million Dollars ($5,000,000.00) with
respect to any one accident to protect
Lessee and Lessor against liability for
such injury to persons upon the Shopping
Center, and Five Million Dollars
($5,000,000.00) with respect to property damage
to protect Lessee and Lessor against
liability for such damage upon and within
the Shopping Center exclusive of the
Demised Premises. Lessor agrees to carry
All-Risk hazard insurance on the Shopping
Center exclusive of the Demised
Premises for an amount providing coverage
for the full replacement cost of the
Shopping Center exclusive of the Demised
Premises. Said insurance policy shall
provide that it shall not be canceled
except on thirty (30) days prior written
notice to Lessee.
D. From the Effective Date through the earlier of the
Commencement
Date of the Lease Term or the date Lessee
accepts possession of the Demised
Premises, Lessor specifically agrees to
defend, protect, hold harmless, and
indemnify Lessee against any and all
responsibility, liability, loss, expense,
attorney's fees, court costs, costs of
defense, and other costs of whatever kind
in connection with all suits, claims,
demands, and actions asserted by anyone
and arising directly or indirectly out of
any occurrence on or about the Demised
Premises, or out of Lessor's operations on,
or about the Demised Premises, or
out of the ownership, or use of the Demised
Premises.
13. ACCESS
BY LESSOR: Lessor and its authorized representatives shall have
the right to enter the Demised Premises at
all reasonable times to examine the
condition thereof and to make all necessary
repairs required of Lessor under
this Lease, but such rights shall be
exercised in a manner so as not to
interfere unreasonably with the business of
Lessee. At any time within six (6)
months prior to the expiration of this
Lease or any renewals hereof. Lessor,
with the express written permission of
Lessee, may show the Demised Premises to
prospective purchasers or tenants, and
within such period, with the express
written permission of Lessee, may attach to
the building or erect on the Demised
Premises a notice advertising said property
for sale or letting.
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
14.
UTILITIES AND WASTE DISPOSAL: Lessee agrees to pay for the
following
utilities used by Lessee upon or within the
Demised Premises from and after the
date of Lessee's entry to the Demised
Premises, as provided in Paragraph 6, to
prepare for the opening of business:
electricity, gas, water and sewer, provided
suitable meters are installed by Lessor to
measure Lessee's consumption of same.
Lessee shall provide for the regular
removal of all trash, rubbish and garbage
from the Demised Premises resulting from
Lessee's activities on the Demised
Premises from and after the date of
Lessee's entry to the Demised Premises, as
provided in Paragraph 6, to prepare for the
opening of business.
15.
CONDEMNATION: If the whole of the Demised Premises shall be taken
or
condemned by any competent authority for
any public use or purpose during the
Lease Term or any extension of the Lease
Term, Lessee reserves the right to
prosecute its claim for an award based on
its real property interest granted by
this agreement for such taking without
impairing the rights of Lessor. After the
Effective Date hereof or during the Lease
Term or any extension of the Lease
Term (i) should part of the Shopping Center
be taken or condemned and the part
so taken includes the building, or any part
thereof, on the Demised Premises, or
(ii) should the part so taken shall remove
ten percent (10%) or more of the
parking area within the Demised Premises,
or the part so taken shall remove from
the Shopping Center ten percent (10%) or
more of the lineal front footage which
runs parallel to any adjacent street or the
highway thereof, or (iii) should the
part so taken shall remove or separate
fifteen percent (15%) of the total
parking area, or (iv) should the part so
taken shall result in cutting off any
access from the Shopping Center to any
adjacent public street or highway, then,
and in any such event, Lessee may elect to
terminate this Lease as of the date
of the taking by such authority. Such
notice of election to terminate shall be
given in writing to Lessor within ninety
(90) days after official notice to
Lessee of the taking: In the event Lessee
shall fail to exercise such option to
terminate this Lease, or if part of the
Shopping Center shall be taken or
condemned under circumstances whereby
Lessee does not have such option, then,
and in either such event, the rental for
the balance of the term of this Lease
shall be abated and adjusted in an
equitable manner.
16.
DEFAULT CLAUSE:
A. If default shall at any time be made by Lessee in the payment
of
the Rent reserved herein or any installment
thereof for more than ten (10) days
after Lessee's receipt of written notice of
such default by the Lessor, or if
Lessee shall default in the performance of
any other covenant, agreement,
condition, rule or regulation herein
obligating Lessee and such default shall
continue for thirty (30) days after
Lessee's receipt of written notice of such
default by Lessor, (or if the default
cannot be cured within such thirty (30)
day period, if Lessee shall not within such
30-day period commence such cure and
thereafter diligently pursue same to its
completion), Lessor shall thereafter
have the right to reenter or repossess the
Demised Premises, either by force,
summary proceedings, surrender or
otherwise, and dispossess and remove therefrom
Lessee or other occupants thereof and their
effects without any liability
therefor. In such case, Lessor shall use
reasonable efforts to relet the Demised
Premises or any part thereof at the highest
rental rate reasonably attainable as
the agent of Lessee, with Lessee remaining
liable to pay Lessor Rent and other
charges reserved herein for the balance of
the term, less the actual rental
received for the Demised Premises for the
same period; or Lessor at its
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
option may terminate this Lease, thereby
releasing Lessee from any further
liabilities hereunder. Should the actual
rental received for the Demised
Premises be less than the Rent, Lessee
shall pay such deficiency on a monthly
basis. In no event shall Lessor be entitled
to accelerate the payment of rent.
The remedy provided herein for the breach
of any obligation shall be exclusive,
with the exception that Lessor may bring an
action for any Rent which has
accrued and is otherwise delinquent.
Consequential damages are not recoverable.
B. If Lessor shall fail to pay any taxes, assessments, mortgage
interest or amortization, or any other
charges accruing against the Demised
Premises, or fail to perform any of the
conditions or covenants hereof on its
part to be performed, Lessee may give
written notice of such default to Lessor,
and if Lessor shall not within thirty (30)
days thereafter cure such default (or
if the default cannot be cured within
thirty (30) days, if Lessor shall not
within such period commence such cure and
thereafter diligently complete the
same), then Lessee shall have the right, at
its option, to cure such default,
and the amount expended by it therefor and
a reasonable charge for
administrative expenses may be deducted by
Lessee from the rents thereafter to
become due. Lessee shall, upon request,
submit to Lessor receipted bills showing
payment of all the aforesaid items. It is
further provided, however, that in the
event of urgent situations which are
Lessor's responsibility to remedy pursuant
to Paragraph 9(A) which shall include but
not be limited to defects and failures
in the sprinkler systems, Lessee shall
immediately notify Lessor or its duly
appointed agent, orally, by telecopy or by
Federal Express or similar overnight
delivery service, and upon the failure of
Lessor to correct promptly or take
necessary steps to correct such urgency,
then Lessee shall have the right to
correct the same and be reimbursed as
hereinabove provided. In the event the
Demised Premises shall be rendered
untenable by reason of Lessor's failure to
perform any obligation described herein,
including without limitation Lessor's
failure to make repair, all rental due
hereunder shall wholly abate until Lessor
shall have satisfactorily performed such
obligation. Alternatively, Lessee shall
have the right to perform such obligations
at the expense of Lessor as
hereinabove provided.
17.
ASSIGNMENT AND SUBLETTING: Lessee shall have the right at any
time,
without the Lessor's consent, to sublet the
Demised Premises or any part thereof
or to assign this Lease and the assignee or
subtenant may use the premises for
any lawful purpose. In (he event of an
assignment or subletting, any reference
in this Lease Agreement to Lessee will be
interpreted to include such assignee
or subtenant; provided, that no such
subletting or assignment shall relieve
Lessee of any of its financial obligations
hereunder. Each sublease or
assignment shall provide that it is subject
and subordinate to the rights of
Lessor under this Lease and to any renewal,
amendment or modification thereof,
to the rights of any first mortgage to
which this Lease is subject or
subordinate and to all renewals,
modifications, consolidations and extensions
thereof. The provisions for such
subordination shall be self-operative so that
no further instrument of subordination need
be required by any mortgagee. Lessor
agrees that the continued enforceability of
the subordination agreement by
Lessor or its mortgagee shall be
conditioned upon Lessee being in possession of
a valid non-disturbance agreement executed
by all present and any future
mortgagees in the form attached as Exhibit
I regarding the Lease and, if
applicable, any Easement, Covenant and
Restriction Agreement and/or Joint
Development Agreement
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
affecting the Demised Premises. Any
assignee or sublessee shall have the right
to request from Lessor, and Lessor shall be
required to deliver if requested, a
Non-Disturbance Agreement.
18. MUTUAL
WAIVER OF SUBROGATION: Lessor and Lessee each hereby releases
the other and its respective employees,
agents and every person claiming by,
through or under either of them, from any
and all liability or responsibility
(to them or anyone claiming by, through or
under them by way of subrogation or
otherwise) for any loss or damage to any
property (real or personal) caused by
fire or any other insured peril covered by
any insurance policies for the
benefit of either party, even if such, loss
or damage shall have been caused by
the fault or negligence of the other party,
its employees or agents, or such
other tenant or any employee or agent
thereof.
19. FIRE
CLAUSE: The term "Total Destruction" of the Demised Premises as
used in this section is defined as damage
to or destruction of the Demised
Premises by fire or other causes covered by
the All-Risk insurance referred to
in Paragraph 12 to the extent that the cost
of repair or reconstruction will
exceed fifty percent (50%) of the cost of
rebuilding or reconstructing the
Demised Premises at the lime of such
disaster. The term "Partial Destruction" of
-the Demised Premises as used in this
section is defined as such damage to the
extent that the cost of repair or
reconstruction will be less than fifty percent
(50%) of the cost of rebuilding or
reconstructing the Demised Premises at the
time of such disaster.
A. In the
event of Total Destruction of the Demised Premises during the
first seventeen (17) years of the original
term, or in the event of Partial
Destruction of the Demised Premises at any
time during the term of this Lease,
Lessor shall promptly rebuild or restore
the Demised Premises to as nearly as
possible its condition immediately prior to
such destruction or damage, such
work to be commenced within sixty (60) days
from the time of disaster and
thereafter to be prosecuted with due
diligence until such rebuilding or
restoration is completed.
B. In the
event of Total Destruction of the Demised Premises during the
last thirty-six (36) months of the original
term, or during any of the renewal
terms, Lessee shall have the option, in
addition to any rights under Paragraph
26 hereof, of extending this Lease under
the same terms and conditions as those
herein expressed for an additional term of
eight (8) years from the time of the
completion and acceptance of the
reconstructed Demised Premises, such option to
be exercised by Lessee's giving written
notice to Lessor within thirty (30) days
after date of casualty. Should Lessee
exercise such option, Lessor shall, within
sixty (60) days from receipt of written
notice, commence the work of
reconstructing the Demised Premises and
thereafter shall prosecute said work
with reasonable diligence until the Demised
Premises has been reconstructed to
as nearly as possible its condition
immediately prior to the casualty. Should
Lessee fail to exercise such option within
the time aforesaid, then this Lease
shall terminate.
C. Should
Lessor be prevented from commencing the rebuilding or
restoration of the Demised Premises within
the dates above provided, or if,
after such commencement, Lessor should be
prevented from performing said work
because of delays beyond Lessor's control,
the period of such delays shall not
be counted in computing the dates
hereinabove provided for the commencement
and/or completion of the rebuilding or
restoration of the Demised Premises.
Notwithstanding the Foregoing, if, for any
reason, Lessor should fail to
commence and be diligently
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Coursey Blvd. Project
Baton Rouge, LA
Store No.
5328-00
performing the work of rebuilding or
restoration within one hundred fifty-one
(151) days from the date of the casualty,
Lessee shall have the option of
terminating this Lease by giving written
notice to Lessor within thirty (30)
days after the expiration of the one
hundred fifty-one (151) day period.
D. All Rent shall be abated during the period the Demised
Premises
is damaged and untenable and for a
period of thirty (30) days after the date
reconstruction is completed, or
until the date upon which Lessee shall reopen
for business, whichever is
earlier.
E. In the event of Partial Destruction of the Demised Premises,
during the period the Demised Premises is
damaged and/or undergoing restoration,
all rental shall abate unless Lessee
chooses to occupy a portion of the Demised
Premises, in which event Lessee shall pay
rental in such proportion to the
entire rental herein reserved as the area
in the Demised Premises occupied by
Lessee bears to the total space in the
Demised Premises.
F. In the event of termination of this Lease, any unearned Rent
paid
by Lessee shall be prorated and refunded to
Lessee.
20. TAXES:
Lessee agrees to pay all real estate taxes and special
assessments which are assessed against the
Demised Premises during the Lease
Term or any extension or renewal hereof,
provided that:
A. In the event the local taxing authority will not permit a
separate tax plat, Lessor agrees to pay all
such taxes and special assessments
upon receipt of the bill. Lessor shall
provide a copy of the bill accompanied by
a copy of the paid receipt from the taxing
authority to Lessee no later than
thirty (30) days from the date, said bill
is due for payment without penalty.
Within sixty (60) days after Lessor's
delivery to Lessee of paid receipts,
Lessee shall reimburse Lessor for Lessee's
share of such taxes and assessments,
based upon the acreage contained in the
"Wal-Mart Tax Plat Area" as the
numerator and the denominator shall be the
total acreage being assessed for that
tax bill or assessments. In no event shall
Lessee he responsible for payment of
any late charges or penalties for the
non-payment of said bills by Lessor.
B. In the event that Lessor fails to pay said bill, Lessee may
pay
the bill and thereafter shall have the
right to deduct Lessor's share, all late
charges and penalties from the monthly rent
then next due.
C. If, during the term of this Lease, Lessor receives
notification
of a change in assessment of the Demised
Premises, Lessor agrees to provide a
copy of said notice to Lessee within
fifteen (15) days of Lessor's receipt of
said notification, to allow Lessee the
right to protest any increase in
assessment. Lessor shall cooperate with
Lessee including the signing of any and
all documents reasonably requested by
Lessee for the prosecution of any protest.
In the event that Lessor fails to provide a
copy of said notification, and the
assessed value is increased, resulting in
an increase in taxes or special
assessments, Lessor agrees to pay said
increase in taxes or special assessments
for each and every bill received reflective
of said increase, until such time as
the Demised Premises is re-assessed and
notification of same is provided to the
Lessee within fifteen (15) days from
Lessor's receipt of same. Lessee agrees to
cooperate with Lessor in filing any protest
of such increase in assessment at
the next opportunity. It is the intention
to allow Lessee the ability to protest
any increase in assessment which would
result in an increase in the taxes or
special assessments Lessee is
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
responsible for paying. If Lessor fails to
provide any notifications of changes
in assessment, Lessee shall not be
responsible for any increase in taxes or
special assessments as a result of Lessee
not being notified.
D. Lessor shall notify Lessee and all applicable taxing
authorities
of any transfer of all of or a part of the
ownership of the Demised Premises.
The notice shall be delivered in writing to
Lessee and all applicable taxing
authorities within fifteen (15) days from
the effective date of the transfer and
shall include any change or modification of
the address of the Lessor. Lessee
shall not be responsible for any damages,
late charges or penalties as a result
of Lessee or the applicable taxing
authorities not being notified within the
time frame set forth herein.
21.
LESSEE'S FIXTURES. EQUIPMENT AND GOODS: Any and all fixtures,
equipment and goods installed by Lessee
shall be and remain the property of
Lessee, and Lessee may, at any time, remove
any and all fixtures, equipment and
goods installed by it in, on or about the
Demised Premises; provided, that
Lessee shall promptly repair any damage or
injury to the Demised Premises caused
by such removal. Any fixtures and equipment
furnished by Lessor shall remain the
property of Lessor and shall not be removed
by Lessee unless Lessee purchases
said equipment and fixtures from
Lessor.
22.
ALTERATIONS. IMPROVEMENTS. OR STOCKROOM ADDITIONS; Lessee or any
of
its assignees or subtenants shall have the
right to make any alterations,
improvements, or stockroom additions to the
Demised Premises for the purpose of
its business or the business of its
assignees or subtenants; provided, that such
alterations, improvements, or stockroom
additions shall be made in accordance
with the requirements of local ordinances
and public authorities having
jurisdiction thereover, and further
provided that the value of the Shopping
Center shall not be diminished thereby. In
making such alterations,
improvements, or stockroom additions,
Lessee may salvage any material or
equipment which shall be removed or
replaced. Furthermore, Lessor will permit
Lessee to enter any other building of the
Shopping Center which is within sixty
(60) feet of the nearest exterior wall of
the Demised Premises and will secure
for Lessee such permission from other
tenants of the building, if any, for such
work as may be necessary in connection with
the alterations, improvements, or
stockroom additions to the Demised
Premises. Lessor agrees to sign promptly
applications, permits or consents which may
be required by public authorities in
connection with such alterations,
improvements, or stockroom additions to the
Demised Premises and requested by Lessee,
its assignees or subtenants. Lessee
agrees to keep the Demised Premises free of
liens for labor or materials
supplied as a result of any alterations,
improvements or stockroom additions in
accordance with Paragraph 31 herein.
23.
COVENANT OF TITLE AND QUIET ENJOYMENT: Lessor represents and
warrants
that Lessor owns the Shopping Center,
including the Demised Premises, and the
access and parking areas being a part
thereof, in fee simple absolute, free and
clear of alt encumbrances, except (i) such
mortgages or deed of trust that
Lessor may place on the Demised Premises
for the purpose of financing the
acquisition thereof and (ii) such
encumbrances that do not interfere with
Lessee's rights under this Lease or
Lessee's use of the Demised Premises; that
the Demised Premises is and shall be
subject to no leases, easements, covenants,
restrictions or the like which in any
manner prevent or restrict Lessee's use of
the Demised Premises for any lawful purpose
or which would interfere with the
construction of the
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
Addition, as described in Paragraph 31
below; that the real property
constituting the Shopping Center contains
no hazardous wastes, toxic materials,
asbestos or environmental pollutants. The
person(s) executing this Lease on
behalf of Lessor represent and warrant that
they are the only person(s) required
to execute this Lease in order to bind
Lessor and that Lessor has the full right
and lawful authority to enter into this
Lease for the Lease Term; and that, if
Lessee is not in default herein, Lessee's
quiet and peaceable enjoyment of the
Demised Premises during the term of this
Lease or any extensions hereof shall
not be disturbed or interfered with by
anyone and Lessee shall enjoy all of the
rights herein granted without any
hindrance, molestation or interference by any
person and Lessor shall indemnify and hold
Lessee harmless from and against any
claim, action, losses, costs, expenses,
liabilities and judgments arising in
connection with the breach of any of the
foregoing representations and
warranties.
24. TITLE
INSURANCE
A. Upon execution of this Lease Lessor shall order from a
reputable
and national title insurance corporation
(the "Title Company"), for delivery to
Lessee within twenty (20) days of the dale
of this Lease, (i) a commitment for a
policy of leasehold title insurance (the
"Commitment") setting forth the state
of title to the Demised Premises and all
exceptions thereto, including, without
limitation, rights-of-way, easements,
restrictions, reservations, covenants,
liens, encumbrances, leases, estates and
any other conditions affecting the
Demised Premises which would appear in a
policy of leasehold title insurance, if
issued, and (if) a copy of any instrument
creating an exception to title. Lessee
may advise Lessor of any unacceptable
exceptions in the Commitment, and Lessor
may undertake to eliminate or modify such
unacceptable exceptions to Lessee's
reasonable satisfaction. If Lessor does not
eliminate or modify such
unacceptable exceptions within thirty (30)
days after being advised of same,
Lessee may terminate this Lease by notice
to Lessor, in which event neither
party hereto shall have any further
obligations to the other hereunder. Failure
of Lessee to object to any exceptions in
the Commitment shall not constitute a
waiver of any of Lessee's rights under any
other sections of this Lease.
B. Within ninety (90) days of the date hereof, Lessor, at
Lessor's
sole cost and expense, shall procure an
ALTA Form B policy of leasehold title
insurance (the "Title Policy") insuring the
leasehold estate to the Demised
Premises to Lessee and Lessee's right under
this Lease with respect to the use
of the Common Areas thereby insuring Lessee
against loss or damage by reason of
defects in title to the Demised Premises,
easements, restrictions, reservations,
leases, liens, encumbrances, covenants and
the like, said policy to be in an
amount not less than the anticipated cost
of the improvements to be constructed
on the Wal-Mart Tax Plat Area. If Lessor
fails to pay for the Title Policy and
as a result of such failure the Title
Policy is not issued within the time
specified above, Lessee shall have the
right, at its option, to pay the cost of
the Title Policy and deduct the amount of
said cost from the next due payment(s)
of rent.
25. RIGHT
TO MORTGAGE: Lessee, upon request of Lessor, will subordinate
this Lease to any first mortgage which now
or hereafter affects the Demised
Premises and to any renewals, modifications
or extensions of such mortgage. At
Lessor's written request, in which Lessor
furnishes Lessee with the name and
address of mortgagee, Lessee
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Coursey Blvd. Project
Baton Rouge, LA
Store No. 5328-00
will execute and deliver a subordination,
non-disturbance and attornment
agreement, which will subordinate this
Lease to any first mortgage and will name
such mortgagee as an additional insured in
any policies required by Paragraph 12
and deliver to such mortgagee copies of all
notices required hereunder;
provided, that such instrument shall be in
a form acceptable to Lessee, and
further provided that a duplicate original
thereof, fully executed by such first
mortgagee, shall forthwith, be delivered to
Lessee. Lessor agrees that the
continued enforceability of the
subordination agreement by Lessor or its
mortgagee shall be conditioned upon Lessee
being in possession of a valid
non-disturbance agreement executed by all
present and any future mortgagees in
the form attached as Exhibit I regarding
the Lease and, if applicable, any
Easement, Covenant and Restriction
Agreement and/or Joint Development Agreement
affecting the Demised Premises.
As further consideration for this subordination clause, Lessor
agrees that it shall make no agreement,
Assignment of Rent or otherwise, with:
any mortgagee whereby Lessor is required to
obtain said mortgagee's permission
in order to modify this Lease unless such
proposed modification will materially
amend or modify the Lease and in addition
will have an adverse effect on the
mortgagee's interest therein. Such material
modifications include but are not
limited to substantial advance payments of
rent, reduction of rent and
modification in the length of the term.
26.
EXTENSION OR RENEWAL: Lessee shall have the right and option to
renew
this Lease and extend the term hereof for
fourteen (14) consecutive periods of
five (5) years each, upon the same terms
and conditions and for the same
rentals, by giving Lessor at least sixty
(60) days previous written notice of
its election to make each such extension.
Upon the giving of each such notice
within the time specified therefor, this
Lease shall be considered as having
been extended for the period specified in
such notice without the necessity of
the execution of any additional
instruments.
27.
NOTICES: All notices or requests under this Lease shall be given
by
certified mail or nationally recognized
overnight courier service to the
addresses shown in the appearance clause of
this Lease and sent to the
Attention: Legal Department with a copy to
the attention of: Property Management
Each notice is effective upon receipt by
addressee.
28. SHORT
FORM LEASE: Lessor and Lessee agree to execute at the time of
execution of this Lease a Short Form Lease
for recording purposes, setting forth
the legal description of the Demised
Premises and the term of the Lease and
referring to other pertinent provisions.
Costs associated with the preparation
and recording of the Short Form Lease shall
be paid by the party recording such
Short Form Lease.
29.
CONSENT; Lessor and Lessee covenant that whenever their consent
or
approval is required hereunder, they will
not unreasonably withhold or delay
such consent or approval.
30. COMMON
AREAS: The Common Areas shall include the vehicle parking and
other Common Areas of the Shopping Center,
any common roadways, service areas,
driveways, areas of ingress and egress,
sidewalks and other pedestrian ways,
landscaped areas, retaining walls, enclosed
malls, fire hydrants, traffic
signalization only to the extent signals
are not a public improvement, storm
water detention and retention ponds located
within the Shopping
17
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Coursey Blvd. Project
Baton Rouge,
LA
Store No. 5328-00
Center or offsite wetlands areas, utility
systems to include sanitary lift
stations and the like, but shall not
include the Building on the Demised
Premises or any other leasable areas within
the Shopping Center. Lessee shall
maintain the Common Areas located on the
Demised Premises as provided in
Paragraphs 6b and 21 of the Easements With
Covenants and Restrictions Affecting
Land.
31.
MISCELLANEOUS:
A. Upon
the termination of this Lease, whether by lapse of time or
otherwise, the Demised Premises and related
improvements shall belong to Lessor,
subject to the terms of Paragraph 21
regarding fixtures, equipment and goods of
Lessee.
B. One or more waivers of any covenant or condition of this Lease
by
Lessor or Lessee shall not be construed as
a waiver of the further breach of the
same covenant or condition, or of any other
covenant or condition herein
contained.
C. The covenants, conditions and agreements of this Lease shall
be
binding upon and shall inure to the benefit
of the successors, heirs and assigns
of the parties hereto.
D. This Lease and the terms hereof may be changed or modified
only
by executio
