HomeMy WebLinkAboutSpecialty Lease Agreement - CLAY TERRACE_Lit Fireworks_New.pdfDeal ID: WPG-072995 1
SPECIALTY LEASE AGREEMENT
(Inline Premises)
CLAY TERRACE
14390 CLAY TERRACE BLVD. CARMEL, INDIANA 46032
This SPECIALTY LEASE AGREEMENT (this “Lease”) made as of (the “Effective Date”),
by and between the parties identified in Section 1 as Landlord and Tenant, also referred to as a “Party” and collectively, the
“Parties”.
In consideration of the payments of the Rent, charges and fees provided for herein and the covenants and conditions hereinafter
set forth, Landlord and Tenant hereby covenant and agree as follows:
1. PARTIES
LANDLORD:
TENANT:
CLAY TERRACE PARTNERS, LLC
CLAY TERRACE (“Center”)
14390 CLAY TERRACE BLVD.
CARMEL, INDIANA 46032
LIT FIREWORKS, LLC
D.B.A. LIT FIREWORKS
653 FLORENCE DRIVE
GREENFIELD, IN 46140
Email:TODD@SFPNETWORK.COM
Attn: TODD DENNING (317) 301-6424
2. LEASED PREMISES. Space: E39 Approximate Square Footage: 1953
Description: Next to Orvis and Jimmy John's
Landlord hereby leases to Tenant, for the Lease Term, the Premises defined above and located in the Center at the location
shown on Exhibit “A” attached hereto and forming part of this Lease, for the purpose of occupying and using the Premises, subject
to all the terms and conditions set forth herein. Tenant accepts the Premises “as-is” and without warranty or representation.
Landlord has made no representation or warranty as to the fitness of the Premises for any specific use, including the Permitted
Use. Unless otherwise agreed to by the Parties, Tenant shall not require Landlord to make any changes to the Premises to
accommodate the Permitted Use. The Parties acknowledge that this Lease is short-term, and that all terms and conditions of this
Lease reflect a short-term leasehold agreement between the Parties. Tenant agrees to strictly adhere to the rules, regulations and
policies for the Center adopted by Landlord as set forth in Exhibit “B” attached hereto and forming part of this Lease (the “Rules
and Regulations”), which are subject to change, revision and modification by Landlord at any time.
3. TERM AND TERMINATION. Commencement Date: 05/29/2023 Expiration Date: 07/06/2023
The term (the “Lease Term”) of this Lease shall commence upon the Commencement Date and shall expire at 11:59 p.m. on the
Expiration Date. Notwithstanding the foregoing to the contrary, Landlord may terminate this Lease upon twenty four (24) hours’
notice to Tenant delivered to Tenant’s address set out in Section 1. If Landlord terminates this Lease, without cause, prior to the
Expiration Date, Landlord shall pay to Tenant a pro-rated refund for any prepaid rent. Notwithstanding anything to the contrary,
in the event Tenant is in Default (as defined herein) of this Lease beyond applicable notice and cure periods, if any,
Landlord may terminate this Lease at any time upon three (3) days’ notice delivered to Tenant's address set out in Section
1. If Landlord elects to terminate this Lease as set forth above, Landlord may reenter and take possession of the Premises and
remove any and all of Tenant’s fixtures, equipment and inventory.
4. PERMITTED USE. Tenant shall be permitted to use the Premises for the purpose set out below (the “Permitted Use”) and
for no other purpose without the prior written consent of Landlord.
the sale of Indiana legal, consumer grade fireworks and for no other purpose
5. SECURITY DEPOSIT
Tenant, concurrently with the signing of this Lease, shall deposit with Landlord the sum of $0.00 which sum shall be held by
Landlord as security against a Default by Tenant (the “Deposit”). Tenant shall pay Deposit by way of company check or certified
funds made payable to Landlord and delivered to Landlord to 180 E. Broad St., Columbus, OH 43215. Landlord, at Landlord’s
option, may hold such Deposit commingled with other funds, without liability for interest. Landlord hereby acknowledges receipt
of the Deposit from Tenant. Landlord will retain the Deposit as security for the faithful performance by Tenant of all covenants,
conditions, and agreements of this Lease. The Deposit shall not constitute final payment of any rent or fees. The balance of the
Deposit, if any, shall be refunded to Tenant approximately ninety (90) days following the later of (a) Landlord’s receipt of a W-9
from Tenant, or (b) the expiration of the Lease Term provided Tenant is not in Default under any of the terms of this Lease (or, if
required by applicable law, the balance of the Deposit, if any, shall be refunded to Tenant at such time and in such manner as is
otherwise provided by law). The balance of the Deposit, if any, will be delivered to Tenant in accordance with the Notice provisions
in Section 26.2 herein.
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6. RENT AND PAYMENT
6.1 Minimum Rent. During the Term, Tenant shall pay to Landlord rent (“Minimum Rent”) for the Premises, without demand,
deduction, set-off or counterclaim, in one (1) or more installments, in advance, pursuant to following schedule:
Due Date Rent Estimated Tax* Total Due
05/29/2023 $ 10,500.00 $0.00 $10,500.00
Overall Total: $10,500.00
*TAX RATES ARE SUBJECT TO CHANGE BY THE APPLICABLE TAXING AUTHORITY.
6.2 Method of Payment. Tenant shall pay Minimum Rent, Overage Rent, and other fees (collectively, “Rent”) as directed by
Landlord by way of Landlord’s electronic payment system (“Electronic Payment System”), unless otherwise designated by
Landlord. Within five (5) days after the Effective Date, Landlord shall provide to Tenant instructions for accessing the Electronic
Payment System via email and prompt notice of any changes to it. Tenant’s inability to access the Electronic Payment System in
no way limits Tenant’s obligation to pay Rent. If Tenant is unable to access the Electronic Payment System for any reason, Tenant
may contact Landlord for assistance through the Center Management Office.
MAKE CHECKS PAYABLE TO: Clay Terrace Partners, LLC
MAIL PAYMENTS TO: Clay Terrace c/o wpg
Attn: Specialty Leasing
180 East Broad St, Floor 21
Columbus, Ohio 43215
6.3 Overage Rent. During the Term, Tenant shall pay, as additional rent (the “Overage Rent”), a percentage of monthly Gross
Sales, as defined herein, from the Premises over and in excess of a specified annual Gross Sales breakpoint (the "Breakpoint"),
on the tenth (10th) day of each calendar month based upon its Gross Sales for the immediately preceding month, as follows:
Effective Date Percentage Breakpoint Frequency
05/29/2023 10.00% $ 100,000.00 Term
"Gross Sales" means the total dollar value of all sales of merchandise, sales of services, and rentals of merchandise arising out
of or payable on account of the business conducted in, on or from the Premises by or on account of Tenant or any sublessee,
assignee, licensee or concessionaire of Tenant, for cash, credit or other means of payment, including all orders for merchandise
taken at or sold from the Premises, and including any fees, such as membership fees, activation fees, service fees and related
charges.
6.4 Late Payment and Returned Checks. If Tenant is late in making any payment of Rent to Landlord, Landlord may impose a
late fee or fees, fine or fines, upon Tenant as otherwise provided for in the Rules and Regulations. The payment of such fee or
fine shall not be construed to extend the date for payment of Rent or relieve Tenant of its obligation to pay Rent. Tenant is required
to pay a service charge to Landlord of $30.00 for each returned check.
6.5 Taxes. Tenant shall pay to Landlord any and all governmental or quasi-governmental taxes or charges (other than income
tax), based in whole or in part, on the Rent or other charges to be paid under this Lease, as may be in effect during the Term at
the then-current rate set by the applicable taxing authority. Tenant understands that tax rates are subject to change and the tax
amount charged to Tenant by Landlord will be adjusted accordingly. In addition, Tenant is obligated to collect State sales tax,
where applicable, on its Gross Sales and to pay over such sales tax to the applicable taxing authority or authorities.
7. TENANT RECORDS AND STATEMENT OF SALES
7.1 Tenant agrees to record all Gross Sales and sales tax at the time each sale is made, whether for cash, credit or other
means of payment. Tenant agrees to record such Gross Sales in a (point of sale) cash register or other manner that contains a
cumulative record of sales transactions. Tenant shall provide to Landlord a report of Gross Sales and sales tax (“Tenant Gross
Sales Report”) (i) on or before the tenth (10
th
) day of each month following the month in which Gross Sales occurred and (ii) no
more than five (5) days following the Term Expiration Date. Tenant’s failure to report Gross Sales to Landlord in the manner set
out in this Section 7.1 shall be an event of Default.
7.2 Notwithstanding anything contained herein to the contrary, if Tenant fails to provide a Tenant Gross Sales Report to
Landlord within the times set forth in Section 7.1, then, in addition to other rights and remedies set forth in this Lease, Landlord
shall have the right to (i) collect from Tenant a fee in the amount of Two Hundred and Fifty 00/100 Dollars ($250.00), which shall
be deemed liquidated damages for administrative and overhead expenses resulting from such failure, and (ii) to estimate Tenant’s
Gross Sales for any non-reported period and bill Tenant’s Overage Rent accordingly. Landlord reserves the right, at Landlord’s
option, to adjust Overage Rent billings when Tenant Gross Sales Reports are received.
7.3 Landlord shall have the right to audit Tenant's Gross Sales not more frequently than twice per Lease Term. If Tenant
understates its Gross Sales by greater than 2%, in addition to any other remedy available to Landlord, Landlord has the right to
terminate this Lease upon thirty (30) days’ notice delivered pursuant to Section 26.2. In this event, Tenant shall remain liable
for any and all Rent and monies due pursuant to the terms of this Lease.
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8. OCCUPANCY OF PREMISES. Tenant shall occupy the Premises upon commencement of the Lease Term. Thereafter,
Tenant shall continuously occupy the Premises and operate Tenant’s business from the Premises, in accordance with the
Permitted Use and for no other purpose whatsoever during all Center Hours of Operation set by Landlord. Tenant agrees that
any and all merchandise, display equipment, and other items will remain within the confines of the Premises.
9. ADDITIONAL PROVISIONS
The following additional provisions (the “Additional Provisions”), if any, are hereby incorporated into this Lease. In the event of
any conflict between any terms and conditions of this Lease and these Additional Provisions, the terms and conditions of the
Additional Provisions shall control.
IN-LINE SPACE. CONSTRUCTION AND BUILD OUT - LANDLORD APPROVAL OF SUB-CONTRACTOR AND
INSURANCE. Tenant shall obtain the prior written approval of Landlord for any and all renovations, cosmetic upgrades,
or refurbishing of the Premises. Prior to the commencement of any such work or modifications, Tenant shall provide
to Landlord proof of sub-contractor insurance in the form of a certificate of liability insurance requested by Landlord,
acting reasonably. As a pre-requisite to granting approval, Landlord may request to review samples of materials to be
used.
UTILITY SERVICES - INCLUDED IN RENT. Rent includes separately metered utilities that serve the Premises.
10. INSURANCE
10.1 Required Coverage. Commencing upon the earlier of the date of delivery of the Premises and the Commencement Date
(such date, the “Insurance Date”), Tenant shall bear the entire risk of loss for all of its property, furniture, fixtures, carpets,
machinery, improvements and betterments, equipment, inventory, stock in trade and goods placed in the Premises. Tenant shall
carry, at its sole cost and expense, from the Insurance Date throughout the Lease Term, insurance providing as follows: (a) special
perils "all-risk" property coverage on Tenant’s personal property of whatever type (furniture, fixtures, carpets, improvements and
betterments, equipment, inventory, stock in trade and goods) that is placed in the Premises covering the property on a full
replacement cost basis; (b) commercial general liability insurance covering the Premises and Tenant's Permitted Use of the
Premises with a minimum coverage of $2,000,000 per occurrence and $2,000,000 aggregate for bodily injury and property
damage, including loss of use; and (c) workers’ compensation insurance as to comply with the laws and regulations of the state
in which the Premises is located, and Tenant shall provide Landlord with a certificate of insurance evidencing coverage currently
in force. Tenant’s insurance policies (“Tenant Policies”), shall be written with insurers licensed to do business in the state in which
the Center is located, shall be in a form satisfactory to Landlord, and shall carry an A.M. Best rating of at least A-. With the
exception of Workers Compensation, Tenant Policies shall name Landlord as an additional insured and shall provide Landlord
with no less than thirty (30) days prior written notice from Tenant’s insurance carrier of cancellation or non-renewal. Tenant
Policies shall also reflect that in the event that coverage benefiting Landlord exists under both Landlord’s policies and Tenant
Policies, coverage under Tenant Policies shall be primary and non-contributory. The above coverage may be achieved using both
umbrella and primary insurance policies.
10.2 Liquor Liability Coverage. If alcoholic beverages are served, sold or otherwise distributed in, on or at the Premises, Tenant
shall carry, at its sole cost and expense, liquor liability insurance for the benefit of Landlord and Tenant against claims for bodily
injury, death or property damage resulting from or arising out of the sale, distribution, service or consumption of alcohol (liquor,
beer or wine) from the Premises of not less than $3,000,000 per occurrence in respect of such personal injury, death or property
damage. Tenant may achieve the above limits through a combination of primary and excess policies. Tenant’s insurance
policy(ies) shall be written with insurers licensed to do business in the state in which the Center is located, in a form satisfactory
to Landlord and shall carry an A.M. Best rating of at least A-.
10.3 Certificates. Tenant shall provide Landlord with a certificate of insurance (ACORD 25) prior to the date of occupancy by
Tenant; and, within thirty (30) days of each anniversary of Tenant’s providing such proof of insurance, Tenant shall provide an
additional certificate of insurance to Landlord evidencing the above-required coverages.
11. MUTUAL WAIVER OF SUBROGATION. Landlord and Tenant each waive all claims against each other, and shall cause
their insurers to waive all rights of subrogation against the other, its officers, directors, employees and agents, mortgagees and
ground lessor(s), from any and all loss, damages or liability covered under any policy of insurance required to be maintained by
this Lease, including deductibles or retentions, notwithstanding that such loss, damages or liability may have arisen from the
negligence, tortious act or omission of the other party, or anyone for whom such party may be responsible.
12. WAIVER OF LIABILITY. Landlord and Landlord’s property manager, each of their affiliates and subsidiaries, officers,
directors, employees, agents, successors, assigns, and any mortgagee and master lessor of the Center (“Landlord Parties”) shall
not be liable for, and Tenant waives all claims for loss or damage, including, but not limited to, consequential damages to person,
property or otherwise, sustained by Tenant or any person claiming through Tenant, in or upon the Premises, or any other part of
the Center. There shall be absolutely no personal liability of Landlord with respect to this Lease. If a breach by Landlord occurs,
Tenant shall look solely to the equity of Landlord in the Center for the satisfaction of Tenant's remedies.
13. INDEMNIFICATION BY TENANT. To the fullest extent permitted by law, Tenant hereby indemnifies Landlord and agrees
to hold harmless and to defend Landlord and the Landlord Parties, from and against all claims, losses, liabilities, damages,
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penalties, fines and expenses (including but not limited to attorneys' fees) that arise from or in connection with the use of the
Premises, or any portion thereof by the Tenant, its employees, agents, contractors, licensees, invitees, successor and assigns, if
any.
14. LANDLORD DISCLAIMER. Tenant agrees that Landlord has made no representations, warrantees or guarantees
regarding the success or failure of Tenant's business or operations or with respect to projected or anticipated Gross Sales or
profits under this Lease. Tenant acknowledges that Landlord has made no representations concerning the possibility of the
extension or renewal of the Lease Term beyond the period set forth herein. In fact, Landlord and Tenant agree that the Lease
Term shall expire, and Tenant’s rights to possession of the Premises shall terminate, upon the Expiration Date (unless the Lease
is terminated earlier than such date).
15. POLICY POSTING, SIGNAGE AND VISUAL MERCHANDISING.
15.1 Return and Exchange Policy. Tenant shall post its merchandise return and exchange policy in a location visible to the public
at all times during the Lease Term.
15.2 Signage. All Tenant’s signage must be of professional quality and approved by Landlord prior to the Commencement Date.
If the Tenant has an in-line space, it must supply its storefront with a three dimensional or raised-lettered sign. Such sign shall be
proportionate to the existing fascia size and shall be pre-approved by Landlord. Banner signage is not permitted.
15.3 Visual Merchandising. Tenant shall comply with the visual merchandising standards of Landlord. Landlord reserves the
right to approve and to make recommendations and/or changes to Tenant's visual presentation and to Tenant’s display of
merchandise. Tenant shall submit a visual merchandising plan to Landlord for approval. Tenant understands and agrees to
implement visual merchandising recommendations of the Landlord and to change visual merchandising presentation as requested
by the Landlord. Landlord reserves the right to adopt additional visual merchandising standards and policies in the Rules and
Regulations. If Tenant elects to have Landlord or its agent provide consultation or renderings of visual displays, Tenant agrees
to pay Landlord or its agent a fee for such consultation (the “Consulting Fee”) with Tenant’s first month Rent. For clarity,
consultation does not include production, construction, set-up or labor, which shall be at Tenant’s sole cost.
16. PERMITS AND COMPLIANCE
16.1 Permits. Tenant shall obtain, at its sole cost and expense, any licenses, authorizations, or permits required by any
government agency or authority for the Permitted Use and for any type of activity to be carried on at the Premises (collectively,
“Tenant Licenses”). Tenant represents that it has, or shall obtain prior to the Commencement Date, all Tenant Licenses, and any
sales, use, and other federal, state, county or local tax permits required with respect to the Permitted Use to be conducted at the
Premises.
16.2 Compliance. Tenant shall, at its own cost and expense, comply with all laws, orders, ordinances and with directions of
public officers thereunder, with all applicable Board of Fire Insurance Underwriters regulations, and with all other requirements
and notices from Landlord or it's mortgagee, respecting all matters of occupancy, condition or maintenance of the Premises,
whether such orders or directions shall be directed to Tenant or Landlord, and Tenant shall hold Landlord harmless from any and
all costs or expenses on account thereof. Tenant shall comply with the Rules and Regulations; not engage in any unlawful
activities; and not consume serve or sell alcoholic beverages on or from the Premises.
17. DEFAULT. The failure of Tenant to fulfill or perform any obligation, term or condition of this Lease shall be a default
(“Default”). If Tenant is in Default, Landlord may pursue such remedy as is provided for in Section 3 of this Lease, and Landlord
may pursue any other remedy or remedies available to Landlord at law or in equity. Landlord shall not, under any circumstances,
be obligated to accept any rental payments and/or to allow Tenant to cure any Default hereunder. Landlord may pursue any
damages (including, but not limited to Landlord’s reasonable attorney fees and legal costs and expenses) and/or loss of rent (such
loss of rent to be measured by the unpaid rents and other charges due under this Lease over the full term hereof) sustained by
Landlord as a result of Tenant's Default under this Lease. Without limiting Landlord’s rights and damages under the terms of this
Lease or applicable law, if Landlord exercises its right to recover possession of the Premises, the Parties specifically agree and
acknowledge that Landlord shall be entitled to recover from Tenant monetary damages equal to Landlord’s costs in facilitating
such recovery.
18. RELOCATION. Landlord shall have the right, for any reason and at any time, to require Tenant to relocate to another
space at the Center (the “New Location”) at Tenant’s sole cost and expense. Landlord shall provide Tenant at least thirty (30)
days’ prior written notice of relocation (“Relocation Notice”) and shall specify the date of relocation (“Relocation Date”) in the
Relocation Notice. Tenant shall surrender the Premises on the Relocation Date. The New Location shall be subject to the same
terms, conditions and covenants as the Premises. The Parties agree to promptly execute an amendment to this Lease reflecting
such relocation. If Tenant elects not to relocate as requested, Tenant shall notify Landlord within ten (10) days of receipt of the
Relocation Notice and this Lease shall terminate on the Relocation Date.
19. FIXTURES. Tenant may use any fixtures located in the Premises on the Commencement Date (“Landlord Fixtures”). All
Landlord Fixtures are the property of Landlord. Tenant shall not remove Landlord Fixtures from the Premises. Upon expiration
or earlier termination of this Lease or upon Tenant otherwise vacating the Premises, Tenant shall be liable for any fees incurred
by Landlord to recover such Landlord Fixtures removed by Tenant.
20. MAINTENANCE OF PREMISES. Tenant shall maintain the Premises, at its sole cost and expense in good, clean and safe
condition. Tenant shall make all necessary replacements and repairs to the Premises except for structural repairs. Tenant shall
not scratch or mar, or otherwise damage, the floors, carpet, walls and ceiling of the Premises.
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21. HAZARDOUS MATERIALS. Tenant shall not cause or permit any hazardous material to be brought upon, stored, kept,
used, or discharged on or about the Premises.
22. DAMAGE AND ALTERATIONS TO PREMISES. Tenant shall not make any alterations to the Premises, unless otherwise
agreed to by the Parties. Tenant is liable for all damages to the Premises, including any Landlord Fixtures contained therein, and
to the Center that is caused by Tenant, its employees, agents, invitees, successors or assigns. Upon demand, Tenant shall
reimburse Landlord for the cost of the repair of the Premises (inclusive of Landlord units), or any other damage elsewhere in the
Center, caused by or arising from the Tenant’s use of the Premises, including installation or removal of Tenant’s property in or
from the Premises during the Lease Term and upon the expiration or earlier termination of this Lease.
23. DELIVERY OF PREMISES UPON TERMINATION. On the expiration or earlier termination of this Lease, Tenant shall
remove its goods and effects, fully restore the Premises to at least the condition prior to Tenant’s taking possession, including
repairing any damage caused by such removal, vacate and peaceably yield up the Premises in broom-clean condition. Personal
property of Tenant not removed within ten (10) days of such termination or earlier revocation shall become the property of Landlord,
at Landlord's option, without liability to Tenant therefor.
24. HOLDING OVER. If Tenant shall hold possession of the Premises after the expiration of the Lease Term or termination of
this Lease, at Landlord’s option (i) Tenant shall be deemed to be occupying the Premises as a holdover tenant and agrees to pay
Landlord for such period at double the highest Minimum Rent in effect during the Lease Term or any extensions thereof, plus all
Overage Rent payable under this Lease, and otherwise subject to all of the terms and conditions of this Lease, or (ii) Landlord
may exercise any other remedies it has under this Lease, at law or in equity including an action for wrongfully holding over.
25. NO LIENS
25.1 Tenant shall not suffer any mechanics' or materialmen's lien to be filed against the Premises or the Center by reason of
work, labor, services or materials performed or furnished to Tenant or anyone holding any part of the Premises under Tenant. If
any such lien shall at any time be filed as aforesaid, Tenant may contest the same in good faith, but, notwithstanding such contest,
Tenant shall, within fifteen (15) days after the filing thereof, cause such lien to be released of record by payment, bond, order of a
court of competent jurisdiction, or otherwise. In the event of Tenant's failure to release of record any such lien within the aforesaid
period, Landlord may remove said lien by paying the full amount thereof or by bonding or in any other manner Landlord deems
appropriate, without investigating the validity thereof, and irrespective of the fact that Tenant may contest the propriety or the
amount thereof, and Tenant, upon demand, shall pay Landlord the amount so paid out by Landlord in connection with the discharge
of said lien, together with interest thereon at the rate of twelve percent (12%) per annum and reasonable expenses incurred in
connection therewith, including reasonable attorneys' fees, which amounts are due and payable to Landlord as additional rent on
the first day of the next following month. Landlord shall have the right to deduct the expenses incurred by Landlord pursuant to
this Section 25 from Construction Allowance towards Tenant's work at the Premises, if any. Nothing contained in this Lease shall
be construed as a consent on the part of Landlord to subject Landlord's estate in the Premises to any lien or liability under the lien
laws of the State where the Center is located. Tenant's obligation to observe and perform any of the provisions of this Section 25
shall survive the expiration of the Lease Term or the earlier termination of this Lease.
25.2 Tenant shall not create or suffer to be created a security interest or other lien against any improvements, additions or other
construction made by Tenant in or to the Premises or against any equipment or fixtures installed by Tenant therein (other than
Tenant's property), and should any security interest be created in breach of the foregoing, Landlord shall be entitled to discharge
the same by exercising the rights and remedies afforded it under Section 25.1.
25.3 FOR FLORIDA LEASES ONLY. In order to comply with the provisions of Section 713.10, Florida Statutes, it is specifically
provided that neither Tenant nor anyone claiming by, through or under Tenant, including, but not limited to, contractors,
subcontractors, materialmen, mechanics and laborers, shall have any right to file or place any construction lien of any kind
whatsoever upon the Premises or improvements thereon, any such liens are hereby specifically prohibited. All parties with whom
Tenant may deal shall be put on notice that Tenant has no power to subject Landlord’s interest to any construction lien of any kind
or character, and all such persons so dealing with Tenant must look solely to the credit of Tenant, and not to Landlord’s interests
or assets.
26. GENERAL
26.1 Assignment and Subletting. Tenant shall not sell, assign, mortgage, pledge or transfer this Lease or any interest therein,
nor sublet all or any part of the Premises, nor license concessions or departments therein, without Landlord's prior written approval,
which may be withheld at Landlord's sole and absolute discretion.
26.2 Notice. Unless otherwise expressly stated herein, notice to Tenant (including a statement for Minimum Rent, and Overage
Rent owed) or Notice to Landlord (collectively, “Notice”) shall be effective only if Notice is in writing and is (i) delivered in person,
(ii) delivered by U. S. mail, or (iii) delivered by a reputable overnight courier. Any such Notice shall be delivered (1) to Landlord at
the address set forth in Section 1, or to such other address as Landlord shall designate by giving written Notice thereof to Tenant;
or, (2) if to Tenant, at the address set forth in Section 1 or such other address as Tenant shall designate by giving written Notice
thereof to Landlord. Any such Notice (including any statement, certificate, request or demand) shall be deemed to have been
given upon receipt or refusal of receipt.
26.3 Entire Agreement. This Lease and any and all attachments and exhibits hereto, constitute the entire and complete
agreement between the Parties and supersedes any prior oral or written representations, promises or agreements between the
Parties with respect to the subject matter hereof.
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26.4 Amendment. This Lease may not be amended or modified, and no waiver of any term or condition shall be effective, unless
made in writing and signed by the Parties hereto.
26.5 Failure to Enforce. The failure of either Party to object to or take affirmative action with respect to any conduct of the other
which is in violation of the terms of this Lease shall not be construed as a waiver thereof, or of any future breach or subsequent
wrongful conduct.
26.6 Severability. If any term, provision, covenant or restriction of this Lease is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Lease shall
remain in full force and effect and shall in no way be affected, impaired or invalidated.
26.7 Survival. The obligations of Tenant (i) for payment of rent and charges under this Lease, (ii) for performance of obligations
which by their nature must be performed after the expiration or earlier termination of this Lease, and (iii) under Section 13
(Indemnification) of this Lease, shall survive the expiration or earlier termination of this Lease
26.8 Governing Law. This Lease shall be governed by and shall be construed in accordance with the laws of the State where
the Center is located, excluding any conflict of laws rule or principle that might refer the governance or the construction of this
Lease to the law of another jurisdiction. The Parties expressly waive all right to trial by jury in any action, proceeding or counterclaim
arising out of this Lease.
26.9 Counterparts and Electronic Copies. This Lease may be executed in any number of counterparts with the same effect as
if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same
instrument. A signature to this Lease executed and/or transmitted electronically shall have the same authority, effect, and
enforceability as an original signature.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS.
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By signing this Lease, Tenant acknowledges that he/she understands ALL provisions included within this Lease and the Rules
and Regulations for the Center, and ALL provisions within any exhibits attached to this Lease and Tenant agrees to be bound
by this Lease.
LANDLORD TENANT
CLAY TERRACE PARTNERS, LLC, a Delaware limited liability
company
LIT FIREWORKS, LLC
Indiana Limited Liability Company
D.B.A. Lit Fireworks
By::
Name:
Title: _
Date: _
By:
Name: _
Title: _
Date: _
DocuSign Envelope ID: 64504EA4-2548-4E3E-927A-62B419184276
Member
Todd Denning
5/23/2023 5/22/2023
Jennifer S. Hillman
General Manager
Deal ID: WPG-072995 8
EXHIBIT A
LEASED PREMISES LOCATION
DocuSign Envelope ID: 64504EA4-2548-4E3E-927A-62B419184276
Deal ID: WPG-072995 9
EXHIBIT “B”
CENTER RULES AND REGULATIONS
These Center Rules and Regulations are attached to and form part of a Lease or License Agreement (“Agreement”). In the event of a conflict
between the terms of these Rules and Regulations and the Agreement, the terms of the Agreement shall govern. Capitalized words not defined in
these Rules and Regulations shall have the meaning assigned to them in the Agreement.
1. Hours of Operation. All Tenants/Licensees must open for business during all Center hours inclusive of any extended holiday hours as
determined by Center Management (“Hours of Operation”). Late openings and early closings will not be tolerated and will result in a fine or termination
of the Lease or License Agreement, as the case may be. Landlord/Licensor requires that Tenant/Licensee remain open and fully stocked in their
store, Premises or Location (“Space”) throughout the term of its Agreement.
2. Maintenance.
2.1. Tenant/Licensee and its employees shall:
(a) Maintain a clean and safe Premises/Space at all times
(b) Perform daily dusting, cleaning and care of units or store, as required, if the Space is in the Common Area.
(c) Keep the Premise/Space free of debris, boxes, coats, purses, additional personal items and other storage containers.
(d) Keep all trash receptacles out of customer’s sight.
(e) Clean windows of in-line store inside and out, if Premises are in-line premises.
(f) Keep cash wrap areas uncluttered.
2.2. Tenant/Licensee is fully responsible for any damage to the store interior, common area display units, fixtures, signage or additional pieces
while in use and will be billed for any and all repairs or replacements needed.
3. Advertising and Solicitation.
3.1. Tenant/Licensee shall not solicit business in the common area by distributing handbills or other advertising materials unless prior approval is
given by Center Management. Obstructing traffic flow of shoppers or interfering with other common area businesses is strictly prohibited and will not
be tolerated.
3.2. Any Tenant/Licensee wishing to participate in or conduct any type of special marketing event or promotion (ex: guest/celebrity appearances,
demonstration of product, etc.) within its Premises/Space must obtain the prior written approval of Center Management.
3.3. The following types of sales shall not be conducted on or about the Premises/Space:
(a) Sales using the auction, hawking/badgering method of selling;
(b) Fire Sales; and
(c) Closing Out, Lost Lease, Moving, Going Out-of-Business, or any similar sales.
4. Set-Up & Tear Down. All set-ups, deliveries, restocking, loading, unloading and tear downs must be done through the Center service corridors
before or after the Center opens for business each day. An After-Hours Permit is required for access to the Center prior to or after Center Hours of
Operation. If Tenant/Licensee needs to be in the Center more than two (2) hours before the Center opens or two (2) hours after the Center closes,
Tenant/Licensee must obtain an After-Hours Permit as described in Section 14.5 of these Rules and Regulations.
5. Stocking & Delivery. The Premises/Space must be kept fully stocked at all times. Cardboard boxes and merchandise are not allowed on the
floor or in customer’s view while the Center is open for business. All deliveries must use dry, rubber wheels and not scratch, pierce, or damage the
floors. Tenant/Licensee is responsible for all costs to repair such damage.
6. Fixtures & Alterations.
6.1. Tenant/Licensee shall not make any alteration to the Premises/Space, including, but not limited to, those made by driving or attaching nails,
tape, staples, glue, bolts or other materials to any part of the Center or its equipment without the prior written approval of Center Management.
Tenant/Licensee shall be responsible for the cost to repair any damage to the Center or its property caused by the Tenant/Licensee, its employees
or agents, including cost of materials and labor. Tenant/Licensee is not permitted to make changes to the physical structure of the Premises/Space
without the prior written approval of Center Management.
6.2. Any and all fixtures, accessories or props provided by Landlord/Licensor must be returned in their original condition at the time of
Lease/License expiration or termination. Any damage noted upon return will result in Tenant/Licensee being required to pay for repair and/or
replacement. Damage during tenancy is Tenant/Licensee’s responsibility to report as soon as possible, including tears/rips to any retail
merchandising unit (“RMU(s)”) security tarp.
6.3. No additional floor fixtures including racks and tables are permitted in conjunction with RMUs or Kiosks unless approved in advance by Center
Management.
6.4. Tenant/Licensee may not place or install any aerial, antenna, satellite, tower, etc. on the roof, exterior walls of, or within the Space or the
Center without, in each instance, the prior written approval of Landlord/Licensor. Any unapproved installation shall be subject to removal, at
Tenant/Licensee’s sole cost and expense, by Landlord/Licensor, at its discretion, at any time, without notice and without liability for damage resulting
from such removal.
6.5. Tenant agrees that any and all merchandise, display equipment, and other items will remain within the confines of the Premises/Space.
7. Seating. Each RMU is provided with one (1) chair. It is Tenant/Licensee’s responsibility to ensure that the chair stays at the RMU and is
secured when the Center is closed. Kiosks and in-line stores must provide their own chair if needed, which should be approved in advance by Center
Management. No other seating is permitted unless approved by Center Management.
8. Fines. Fines are at the discretion of Center Management. Any violation of these Center Rules and Regulations may incur a fine and potentially
jeopardize Tenant/Licensee’s position in the Specialty Leasing Program. In the event that a rule or regulation is not observed, a Tenant/Licensee
violation notice indicating the type of violation will be issued. All fines are due upon receipt of notice.
Deal ID: WPG-072995 10
9.2. Eating, drinking and reading are not permitted in or around the Space.
9.3. Absolutely NO SMOKING is permitted in the common areas, corridors, restrooms, in-line stores and back rooms or entrance areas. Smoking
is only permitted in the various areas designated for such purpose on the exterior of the Center property.
9.4. Loitering by friends and family at the Space will not be permitted, nor are they permitted to cover for any employee absence or break.
Tenant/Licensees and their employees are not permitted to babysit their own children or children belonging to others while on duty.
9.5. Personal belongings of RMU Tenant/Licensees, such as coats and purses, must be stored out of sight. The back of the stool cannot be used
for hanging purses, coats, bags or briefcases.
10. Return and Exchange Policy. Tenant/Licensee must have a return policy clearly posted at the point of sale and professionally signed. Policies
are at the discretion of each individual merchant; however, Landlord/Licensor strongly encourages doing everything possible to satisfy the customer.
11. Parking. Tenant/Licensee and its employees should restrict parking to areas designated by Center Management. Tenant/Licensee shall not
park any camper, recreation vehicle, trailer, bus, large truck or other vehicles that exceed the size of an individual parking space. Tenant/Licensee
may not use any portion of the Center property for lodging purposes. Failure to follow designated parking rules may result in a Tenant/Licensee
violation or employee car being towed.
12. Merchandise Content. Any and all material determined by Center Management to be inappropriate and/or in poor taste for the community
and/or Center is prohibited. Refusal to remove merchandise at the request of Center Management will result in termination of the Lease/License
Agreement.
13. Trash Disposal.
13.1. The disposal of trash is the responsibility of the Tenant/Licensee. No trash or debris is to be placed inside interior trash receptacles.
Tenant/Licensee is responsible for setting up an account directly with the trash removal contractor for the use of the trash compactors located on the
Center’s property. Cardboard must be broken down and separated from all other waste material and placed in the cardboard recycling dumpster.
Trash should not be left outside the compactors or cardboard recycling dumpsters. If there is a problem with the compactor, Tenant/Licensee should
notify Center Management. Trash articles of any type are not permitted in service hallways at any time day or night. This is a fire hazard and violates
fire code.
13.2. Tenant/Licensees are required to participate in the recycling program for fluorescent bulbs as per federal guidelines. For more information
on fluorescent bulb disposal or other hazardous materials, please contact Center Management office.
13.3. Violators may incur a fine for improper trash removal.
14. Security.
14.1. Tenant/Licensee assumes full responsibility for protecting itself from theft, robbery and pilferage. Incidents should be reported to Center
Management as soon as possible, or 9-1-1 in the event of an emergency.
14.2. All RMU’s are equipped with a security tarp for use at Center closing, Tenant/Licensee must provide padlocks to secure the tarp. Employees
should remain at their RMU, kiosk or store during Center hours to help avoid theft.
14.3. The keys to the Premises/Space must be returned to Center Management upon expiration or earlier termination of the Lease/License
Agreement. Storage space and inline store space keys must be returned to Center Management during a walk-through of the Premises/Space upon
conclusion of tenancy/occupancy.
14.4. Tenant/Licensees shall furnish Center Management Office with a 24-hour emergency telephone number(s) and contact person(s). This
information must be kept current in the Center Management Office, and is the responsibility of the Tenant/Licensee to update as necessary.
14.5. After-hours access to the Premises will require an After-Hours Permit. To obtain an After-Hours Permit, Tenant/Licensee is required to give
at least 24 hours’ notice to Center Management and provide the reason for access, names of personnel, and the time of entry/exit needed. Anyone
entering the Center Management before Hours of Operation or after Center lock-up, may be denied access without an After-Hours Permit and proper
identification, as determined by Landlord/Licensor.
14.6. Tenant/Licensee must contact Center Security at least 24 hours in advance, to make arrangements for any work to be performed in the
Space by third parties before or after Center Hours of Operation.
15. PROHIBITED ACTIVITIES AND USES.
15.1. The following are PROHIBITED:
(a) Operation of audio/visual equipment without the approval of Center Management;
(b) Emission of excessive noise or odors or use of any device or paraphernalia such as sirens, bells, amplifiers, flashing lights, megaphones,
musical instruments, headphones, radio or any equipment which may constitute a nuisance.
(c) Use of Space in any manner or for any purpose that might invalidate or increase the rate of insurance;
(d) Use of Space for any purpose whatsoever which might create a nuisance or injure the reputation of the Center;
(e) Use the name of the Center or use pictures of the Center, except as the address of Tenant/Licensee's business.
The Landlord/Licensor may amend, repeal or create new rules and regulations from time to time and all such amendments, repeals and/or new rules
and regulations shall be binding upon the Tenant/Licensee receipt of a copy thereof.
Tenant/Licensee Signature: Date:
DocuSign Envelope ID: 64504EA4-2548-4E3E-927A-62B419184276
5/22/2023
9. Employee Standards.
9.1. Tenant/Licensee and all employees in the Premises/Space will adhere to and maintain the dress code set forth by Center Management.
Tenant/Licensee and its employees are expected to be neat, clean and well-groomed while on duty. Extremely low-rise jeans, sweat suits, short
shorts, halter tops, short skirts or other questionable or revealing clothing styles are NOT permitted. Tenant/Licensees who do not meet this dress
code will be asked to leave the Center until they are appropriately attired.
DocuSign Envelope ID: 64504EA4-2548-4E3E-927A-62B419184276
DocuSign Envelope ID: 64504EA4-2548-4E3E-927A-62B419184276
DocuSign Envelope ID: 64504EA4-2548-4E3E-927A-62B419184276