# Joint Appendix — Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 568

## Text

No. 86-1461

)
Iu The

Supreme Court of the United S
October Term, 1986

THE EDWARD J. DEBARTOLO CORP.,
Petitwner,
v.

FLORIDA GULF COAST BUILDING AND
CONSTRUCTION TRADES COUNCIL,

and

NATIONAL LABOR RELATIONS BOARD,
Respondents.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JOINT APPENDIX
Lawrence M. C omen Crances Frito Laurence Goto
Martrew K. Dens Solicitor General 815 16th St., N.W.
Fox Ano Grove, Cxarrerzo Department of Wash., D.C. 20006
233 South Wacker Drive mg P (202) 637-5390
Sears Tower—Suite 7818 , D.C. 20530 Attorney for the
Mlincie 60606 anderen Plorde Gulf Coast
Attorneys for ‘he Genera! Counsel! Construction Trades
Eowaro J. DeBarrow Nationa) Labor Council
Core Relations Board
Wash., D.C. 20570
Attorneys for the
National Labor
Relations Roard

PETITION FOR CERTIORARI FILED MARCH 11, 1987
CERTIORARI GRANTED JUNE 8, 1987

Pandick Technologies, Inc., Chicago @ (312) 236-0200

Page
Chronological List of Relevant Docket Entries...... 1A
Charge Against Labor Organization ............. 3A
Complaint and Notice of Hearing................ 6A
PR CREOEON Se oeseoseceesédcoenssectéooes 17A
Ce 19A
Joint Exhibit 1 - Sample Standard Lease
re 28A
Joint Exhibit 2- Lease By and Between Eastlake
Square Associates and HJ. Wilson
Dit ede seasececocenees 65A
Joint Exhibit 3- The Handbill................ 4A
Joint Exhibit 5- Plot Plan....... ........... 86A

Joint Exhibit 6 — Letter dated December 20, 1979.. 87A

The following opinions, decisions, judgments, and
orders have been omitted in printing this joint appen-
dix because they appear on the following pages in the
appendix to the printed Petition for Certiorari :

Opinion Below of the United States Court of Appeals

for the Elewenth Circuit ..............0eceeees 1A
Opinion Below of the Nationa! Labor Relations
TTT? CTT TTT TTT TTT 38A
Judgment of the United States Court of Appeals for
PE, cccceeo bess coesscoeseseses 47A
Pn ~ ocsasecuebecaseocceces 49A

Order Extending Time To File Petition For Writ Of
ER ee es 51A

la

CHRONOLOGICAL LIST OF RELEVANT
DOCKET ENTRIES

December 17,1979 Charge, filed

February 4, 1980 Complaint and Notice of Hearing,
dated

February 4, 1980 Union’s Answer, dated

February 7, 1980 Regional Director’s Order Setting
Date, Time and Place of Hearing,
dated

March 20, 1980 Regional! Director’s Order Reschedul-
ing Hearing, dated

April 2, 1980 Stipulation of Facts entered into by
the Parties, dated

May 22, 1980 Board’s Order Approving Stipula-
tion and Transferring Proceeding
to the Board, dated

September 30,1980 Decision and Order issued by the
National Labor Relations Board

October 7, 1980 Board’s Order Correcting Decision
and Order, dated

October 20, 1981 Decision of the United States Court
of Appeals for the Fourth Circuit,
dated

January 26, 1982 Order of the the United States
Court of Appeals for the Fourth
Circuit denying rehearing en banc,
filed

April 23, 1982 Petition for Writ of Certiorari to
the United States Court of Appeals
for the Fourth Circuit, filed

June 28, 1982

October 12, 1982
June 24, 1983

January 15, 1985

March 18, 1985

August 11, 1986

November 12, 1986

November 24, 1986
January 28, 1987
March 11, 1987

June 8, 1987

2a

United States Supreme Court
Order requesting Supplemental
Memoranda regarding the question
of mootness, dated

Petition for a Writ of Certiorari
granted

Decision of the United States
Supreme Court, dated

Supplemental Decision and Order
of the National Labor Relations

Board, filed

Petition for Review of Board’s
Order to the United States Court
of Appeals for the Eleventh Circuit,
filed

Decision of the United States Court
of Appeals for the Eleventh Circuit,
dated

Order of the the United States
Court of Appeals for the Eleventh
Circuit denying rehearing en banc,
filed

Judgment of the the United States
Court of Appeals for the Eleventh
Circuit, issued

Order of the United States
Supreme Court extending time to
file Petition for Writ of Certiorari

Petition for a Writ of Certiorari to

the United States Court of Appeals
for the Eleventh Circuit, filed

Petition for a Writ of Certiorari
granted

3a

UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD

CHARGE AGAINST LABOR ORGANIZATION
OR ITS AGENTS

INSTRUCTIONS: File an original and 3 copies of this
charge and an additional copy for each organization, each
local and each individual named in item 1 with the NLRB

director for the region in which the alleged unfair
labor practice occurred or is occurring.

Do Not Write in This Space
Case No. 12-CC-1062
Date Filed 12/17/79

1. LABOR ORGANIZATION OR ITS AGENTS
AGAINST WHICH CHARGE IS BROUGHT

-a. Name Florida Gulf Coast Building Trades Coun-
cil, AFL-CIO

b. Union Representative to Contact J. G. Cain
c. Phone No. 621-6451 224-0174

d. Address (Street, city, State and ZIP code) 3505
Central Avenue Tampa, Florida 33603

e. The above-named organization(s) or its agents has
(have) engaged in and is (are) engaging in unfair labor
practices within the meaning of section 8(b), subsection (s)
(4) (i) (ii) (B) of the National Labor Relations Act, and
these unfair labor practices are unfair labor practices af-
fecting commerce within the meaning of the Act.

9. Basis of the Charge (Be specific as to facts, names,
addresses, plants involved, dates, places, etc.) Since on or
about December 13, 1979, and continuing to date, the above-
named labor organization has engaged in, or induced or en-

4a

couraged any individual employed by any person engaged
in commerce or in an industry affecting commerce to en-
gage in, a strike or refusal in the course of his employ-
ment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or com-
modities, or to perform any services; and it has threatened,
coerced, or restrained, persons engaged in commerce or in
an industry affecting commerce, where in either case,
an object was to force or require any person to cease us-
ing, selling, handling, transporting, or otherwise dealing
in the products of any other producer, processer, or manu-
facturer, or to cease doing business with any other person.

3. Name of Employer The Edward J. DeBartolo
Corp.

4 Phone No. 621-7575

5. Location of Plant Involved (Street, city, State and
ZIP code) 5701 East Hillsborough Avenue, Tampa, Flor-
ida 33610

6. Employer Representative to Contact Harold E.
Skipper

7. Type of Establishment (Factory, mine, wholesaler,
etc.) Shopping Mall

8. Identify Principal Product or Service Shopping
Mall

9. No.of Workers Employed 25

10. Full Name of Party Filing Charge The Edward
J. DeBartolo Corp.

11. Address of Party Filing Charge (Street, city, State
and ZIP code) 5701 East Hillsborough Avenue, Tampa,
Florida 33610

12. Telephone No. 621-7575

Sa

13. DECLARATION

I declare that I have read the above charge and that
the statements therein are true to the best of my know!l-
edge and belief.

By /s/ Mark E. Levitt
(Signature of representative or person
making charge)
Mark E. Levitt
Hogg, Allen, Ryce, Norton & Blue
First Florida Tower
Suite 2712
Tampa, Florida 33602
Address
Attorney
(Title or office, if any)
229-1341
(Telephone number)
12/17/79
(Date)
Willfully False Statements on This Charge Can Be

Punished by Fine and Imprisonment (U.S. Code,
Title 18, Section 1601)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
REGION 12

Case 12-CC-1062

FLORIDA GULF COAST BUILDING TRADES
COUNCIL, AFL-CIO

and
THE EDWARD J. DeBARTOLO CORP.

COMPLAINT AND NOTICE OF HEARING

(Dated February 4, 1980)

It having been charged by The Edward J. DeBartolo
Corp. (herein called DeBartolo), that Florida Gulf Coast
Building Trades Council (herein called Respondent) has
been engaging in and is engaging in certain unfair labor
practices affecting commerce as set forth and defined in
the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq. (herein called the Act), the General Coun-
sel of the National Labor Relations Board (herein called
the Board), on behalf of the. Roard, by the undersigned
Regional Director for Region 12, pursuant to Section 10(b)
of the Act, and Section 102.15 of the Board’s Rules and
Regulations, Series 8, as amended, hereby issues this Com-
plaint and Notice of Hearing and alleges as follows:

1.

The charge was filed by DeBartolo on December 17,
1979, and a copy thereof was duly served upon Respondent
by registered mail on or about the same date.

7a

(a) DeBartolo is an Ohio corporation with an office and
place of business located in Tampa, Florida, where it is
engaged in the leasing of space and management of shopping
center malls, including East Lake Square Mall, located
Tampa, Florida.

(b) During the past 12 months, a representative period of
ume, DeBartolo derived in excess of $100,000 gross revenue, of
which in excess of $25,000 was derived from Employers, which
im turn meet other than a solely indirect standard for asseruon
of the Board’s jumsdicton.

(c) DeBartolo is now, and has been at al) umes maternal
herein, an Employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.

3.

(a) H. J. High Construction Company (herein High) is a
Florida corporation with an office and place of business located
in Orlando, Florida, where it is engaged as a genera! contractor
in the building and construction industry at jobsites throughout
the State of Florida.

(b) During the past 12 months, a representative period of
tume, High has performed services at its Flonda construction
sites, valued in excess of $50,000 for various Employers,
including Wilson's, which in turn meet a direct jumsdictional
standard of the Board.

(c) High is now, and has been at al] umes maternal herein.

an Employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.

a

(a) H. J. Wilson Co., Inc. (herein Wilson's) is a Louits-
iama corporation with an office and place of business

8a

located in Tampa, Florida, where it is engaged in the busi-
ness of operating retail department stores.

(b) During the past 12 months, a representative pe-
riod of time, Wilson’s hes received revenues in excess of
$500,000, and in addition has received at its Tampa, Florida

facilities, goods valued in excess of $5,000 shipped to it
directly from points located outside the State of Florida.

(c) Wilson’s is now, and has been at all times ma-

terial herein, an Employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.

5.

Respondent is, and has been at all times material here-
in, a labor organization within the meaning of Section 2(5)
of the Act.

6.

At all times material herein, the tenant Employers
of East Lake Square Mall, and each of them, have been and
are now, persons engaged in commerce or in an industry
affecting commerce, within the meaning of Section 8(b) (4)
of the Act.

7.

(a) At all times material herein, and specifically
since on or about December 13, 1979, Respondent has had
a primary labor dispute with High involving the pay-
ment to its employees of alleged substandard wages and
fringe benefits, in its construction of a retail store for
Wilson's in East Lake Square Mall.

(b) At no time material herein has Respondent had
any primary labor dispute with DeBartolo, Wilson’s or
the tenant Employers of East Lake Square Mal].

9a

8.

(a) Between the approximate dates of December 13,
1979 and January 4, 1980, Respondent, in furtherance of its
primary labor dispute with High as described in paragraph
7, subparagraph (a) above, has threatened, coerced or re-
strained, and is threatening, coercing or restraining, various
tenant Employers who are engaged in business at East
Lake Square Mall, and who lease space from DeBartolo in
East Lake Square Mall, by handbilling the general public
not to do business with the above-described tenant Em-
ployers because High allegedly pays substandard wages
and fringe benefits to its employees constructing a retail
store for Wilson's in East Lake Square Mall.

(b) An object of the acts and conduct of Pespondent
set forth in paragraph 8, subparagraph (a) above, was and
is, to force or require the aforesaid tenant Employers in
East Lake Square Mall, and other persons engaged in
commerce or an industry affecting commerce, to cease us-
ing, handling, transporting, or otherwise dealing in prod-
ucts and/or services of, and to cease doing business with
DeBartolo, in order to force DeBartolo and/or Wilson's not
to do business with High.

By the acts and conduct set forth in subparagraph
8(a) above, and by each of said acts, and for the object set
forth in subparagraph 8(b) above, Respondent did engage
in unfair labor practices in violation of Section 8(b) (4)
(ii) (B) and Section 2(6) and (7) of the Act.

10.

The acts of Respondent described in paragraph 8 above,
occurring in connection with the operations of the Em-

The acts of Respondent described above constitute
unfair labor practices affecting commerce within the mean-
ing of Section 8(b) (4) (ii) (B) and Section 2(6) and (7) of
the Act.

PLEASE TAKE NOTICE that on a date and time and
place to be later designated, a hearing will be conducted
before a duly designated Administrative Law Judge of the
National Labor Relations Board on the allegations set forth
in the above complaint, at which time and place you will
have the right to appear in person, or otherwise, and give
testimony. Form NLRB 4668, Summary of Standard Pro-
cedures in Formal Hearings Held Before the National Labor
Relations Board in Unfair Labor Practice Proceedings is
attached.

You are further notified that, pursuant to Section
102.20 and 102.21 of the Board’s Rules and Regulations,
Respondent shall file with the undersigned Regional Di-
rector, an original and four copies of an answer to said
complaint within 10 days from the service thereof, and
that unless it does so, all of the allegations of the com-
plaint shall be deemed to be admitted to be true and may
be so found by the Board. Respondent shall immediately
serve a copy of the answer, as required by the above sec-
tions of the Rules on each of the other parties.

DATED AT Tampa, Florida, this 4th day of February
1980.

/s/ Harold A. Boire
Harold A. Boire
Regional Director
National Labor Relations Board
Region 12
706 Federal Building
500 Zack Street
P. O. Box 3322
Tampa, Florida 33601

(SEAL)

SUMMARY OF STANDARD PROCEDURES IN FORMAL
HEARINGS HELD BEFORE THE NATIONAL LABOR
RELATIONS BOARD IN UNFAIR LABOR PRACTICE
PROCEEDINGS PURSUANT TO SECTION 10 OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED

The hearing will be conducted by an Administrative
Law Judge of the National Labor Relations Board who will
preside at the hearing as an independent, impartial trier
of the facts and the law whose decision in due time will
be served on the parties. The offices of the Administra-
tive Law Judges are located in Washington, D. C., and San
Francisco, California.

At the date, hour, and place for which the hearing is
set, the Administrative Law Judge, upon the joint request
of the parties, will conduct a “prehearing” conference, prior
to or shortly after the opening of the hearing, to assure
that the issues are sharp and clearcut; or the Administra-
tive Law Judge may independently conduct such a con-
ference. The Administrative Law Judge will preside at
such conference, but may, if the occasion arises, permit

l2a

the parties to engage in private discussions. The con-
ference will not necessarily be recorded, but it may weil
be that the labors of the conference will be evinced in the
ultimate record, for example, in the form of statements of
position, stipulations, and concessions. Except under un-
usual circumstances, the Administrative Law Judge con-
ducting the prehearing conference wil] be the one who
will conduct the hearing; and it is expected that the formal
hearing will commence or be resumed immediately upon
completion of the prehearing conference. No prejudice
will result to any party unwilling to participate in or make
stipulations or concessions during any prehearing con-
ference.

(This is not to be construed as preventing the parties
from meeting earlier for similar purposes. To the contrary,
the parties are encouraged to meet prior to the time set for
hearing in an effort to narrow the issues.)

Parties may be represented by an attorney or other
representative and present evidence relevant to the issues.

An official reporter will make the only official transcript
of the proceedings, and all citations in briefs and argu-
ments must refer to the official record. The Board will
not certify any transcript other than the official transcript
for use in any court litigation. Proposed corrections of the
transcript should be submitted, either by way of stipula-
tion or motion, 2o the Administrative Law Judge for ap-

proval.

All matter that is spoken in the hearing room while
the hearing is in session will be recorded by the official
reporter unless the Administrative Law Judge specifically
directs off-the-record discussion. In the event that any
party wishes to make off-the-record statements, a request
to go off the record should be directed to the Administra-
tive Law Judge and not to the official reporter.

All exhibits offered in evidence shal] be in duplicate.
Copies of exhibits should be supplied to the Administrative
Law Judge and other parties at the time the exhibits are
offered in evidence. If a copy of any exhibit is not avail-
able at the time the original is received, it will be the
responsibility of the party offering such exhibit to submit
the copy to the Administrative Law Judge before the close
of hearing. In the event such copy is not submitted, and
the filing thereof has not for good reason shown been
waived by the Administrative Law Judge, any ruling re-
ceiving the exhibit may be rescinded and the exhibit

Judge who will fix the time for such filing.

Attention of the parties is called to the following re-
quirements laid down in Section 102.42 of the Board's Rules
and Regulations, Series 8, as amended, with respect to the

office of Administrative Law Judges, the Deputy Chief
charge of

Administrative Law Judge in such office) at
least 3 days prior to the expiration of time fixed for the
submission of such documents. Notice of request for such
extension of time must be served simultaneously on all
other parties, and proof of such service furnished to the
Chief Administrative Law Judge or Deputy Chief Ad-
ministrative Law Judge, as the case may be. All briefs
or proposed findings filed with the Administrative Law
Judge must be submitted in triplicate, and may be in

and will cause a copy thereof to be served on each of the
parties. Upon filing of this decision, the Board will enter
an order transferring this case to itself, and will serve
copies of that order, setting forth the date of such transfer,
om all parties. At that point, the Administrative Law
Judge's official connection with the case wil] cease

The procedure to be followed before the Board from
that point forward, with respect to the filing of exceptions
to the Administrative Law Judge's decision, the submission
of supporting briefs, requests for oral argument before the
Board, and related matters, is set forth in the Board's Rules
and Regulations, particularly in Section 102.46 and fol-

15a

lowing sections. A summary of the more pertinent of these
provisions will be served on the parties together with the
order transferring the case to the Board.

Adjustments or settlements consistent with the policies
of the Act reduce government expenditures and promote
amity in labor relations. If adjustment appears possible,
the Administrative Law Judge may suggest discussions be-
tween the parties or, upon request, will afford reasonable
opportunity during the hearing for such discussions.

NATIONAL LABOR RELATIONS BOARD
NOTICE

Case No. 12-CC-1062

The issuance of thé notice of formal hearing in this
case does not mean that the matter cannot be disposed of
by agreement of the parties. On the contrary, it is the
policy of this office to encourage voluntary adjustments.
The examiner or attorney assigned to the case will be
pleased to receive and to act promptly upon your sug-
gestions or comments to this end. An agreement between
the parties, approved by the Regional Director, would serve
to cancel the hearing.

However, unless otherwise specifically ordered, the
hearing will be held at the date, hour, and place indicated.
Postponements will not be granted unless good and suf-
ficient grounds are shown and the following requirements
are met:

(1) The request must be in writing. An original and
two copies must be served on the Regional Di-
rector;

(2) Grounds therefor must be set forth in detail;

l6a

(3) Alternative dates for any rescheduled hearing must
be given;

(4) The positions of all other parties must be ascer-
tained in advance by the requesting party and set
forth in the request; and

(5) Copies must be simultaneously served on all other
parties (listed below), and that fact must be noted

on the request.

Except under the most extreme conditions, no request
for postponement will be granted during the three days
immediately preceding the date of hearing.

Florida Gulf Coast Building
Trades Council, AFL-CIO
3505 Central Avenue
Tampa, FL 33603

Mark F. Kelly, Esquire
341 Plant Avenue
Tampa, Florida 33606

The Edward J. DeBartolo Corp.
5701 East Hillsborough Ave.
Tampa, Florida 33610

Mark E. Levitt, Esquire
Hogg, Allen, Ryce, Norton & Blue
First Florida Tower, Suite 2712
Tampa, Florida 33602
ce: Marc Jelovchan
Atlanta Reporting Service
P. O. Box 33
Neptune Beach, FL 32233

17a

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
REGION 12

Case No. 12-CC-1062

FLORIDA GULF COAST BUILDING
TRADES COUNCIL, AFL-CIO,
Respondent,
and

THE EDWARD J. DrEBARTOLO CORP.,
| Employer.

ANSWER
(Dated February 4, 1980)

The Florida Gulf Coast Building Trades Council, AFL-
CIO, the Respondent in the above-styled matter, answers
the complaint pursuant to §102.20 of the Board’s Rules

and Regulations:
L

The Respondent admits the allegations contained with-
in the paragraphs of the complaint numbered 1, 2(a),
2(b), 2(c), 3(a), 3(b), 3(c), 4(a), 4(b), 4(c), 5, amd 7(a).

0.

The Respondent is without knowledge as to the alle-
gations contained within the paragraph of the complaint
numbered 6, with the exception that the Respondent admits
that various premises located at Eastlake Square Mall are
occupied by tenants but the Respondent is without knowl-
edge as to whether such tenants are employers within

18a

the meaning of §2(2) of the Act and it is without knowl-
edge as to whether such tenants are persons engaged in
commerce or in an industry affecting commerce within
the meaning of §§ 2(6) and 2(7) of the Act.

1.

The Respondent denies the allegations contained with-
in the paragraphs of the complaint numbered 7(b), 8(a),
8(b), 9, 10, and 11.

/s/ Richard H. Frank

Richard H. Frank,

Law Offices of Frank, Chamblee
& Kelly, PA.
341 Plant Avenue
Tampa, Florida 33606
(813) 251-0555

Attorneys for Respondent

(Certificate of Service Omitted in Printing)

19a

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
REGION 12

Case 12-CC-1062

FLORIDA GULF COAST BUILDING
TRADES COUNCIL, AFL-CIO

and
THE EDWARD J. DgEBARTOLO CORPORATION

STIPULATION OF FACTS
(Dated April 2, 1980)

Comes now Florida Gulf Coast Building Trades Coun-
cil, AFL-CIO, Respondent; The Edward J. DeBartolo Cor-
poration, the Charging Party; and Counsel for the General
Counsel, being all the parties to this proceeding, and hereby
petition the Board, in order to effectuate the purposes
of the Act and to avoid unnecessary costs and delay, to
exercise its powers under Section 102.50 of the Rules and
Regulations of the National Labor Relations Board, Series
8, as amended, to transfer to and continue this proceeding
before the Board and to accept this Stipulation of Facts.

1.

The parties agree that the charge, complaint, answer,
the instant “Stipulation of Facts”, and Exhibits attached
thereto, constitute the entire record in the case, and that
no oral testimony is necessary or desired by any of the
parties. The parties further stipulate that they waive
a hearing before an Administrative Law Judge, the mak-
ing of findings of facts and conclusions of law by an

20a

Administrative Law Judge and the issuance of an Adminis-
trative Law Judge's Decision, and desire to submit this case for
findings of facts, conclusions of law, and a Decision and Order
directly by the Board. The parties do not waive any rights to
which they may be entitled after the issuance of Decision and
Order of the Board.

2.

In the event the Board accepts this Supulation of Facts and
transfers this proceeding to the Board, the partes request that
the Board set a reasonable period of time for filing of briefs
and/or proposed findings of fact and conclusions of law.

3.

The instant charge was filed on December 17, 1979, by the
Edward J. DeBartolo Corporation (herein DeBartolo), and a
copy thereof was duly served upon Respondent Flonda Gulf
Coast Building Trades Council ( herein the Union) on or about
the same date.

=

DeBartolo is an Ohio corporation with an office and place
of business located in Tampa. Florida, where it is engaged in
the leasing of space and management of shopping center malls,
including East Lake Square Mall, located in Tampa. Flonda.
DeBartolo has nothing to do with the operation or management
of any of the retail stores in the Mall, including Wilson's and
Belk’s, apart from those matters set forth in the applicable
lease, property management or maintenance agreements. Dur-
ing the past twelve months, a representative period of time.
DeBartolo derived in excess of $100,000 gross revenue, of
which in excess of $25,000 was derived from Employ-

2la

ers, which in turn meet other than a solely indirect standard for
asseruon of the Board's junsdicuon. DeBartolo is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act

5.

H. J. Wilson Co., Inc. (herein Wilson's) is a Louisiana
corporation with an office and place cf business located in
Tampa, Florida, where it is engaged in the business of oper-
a representative period of ume, Wilson's has received im excess
of $500,000 in revenues, and in addition has received at its
Tampa, Florida, facilities goods valued in excess of $5,000
shipped to it directly from points located outside the State of
Florida. Wilson's is now, and has been at all umes matenal
herein, an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.

6.

Belk Lindsey of Tampa, Inc. (herein Belk’s) is a Flonda
corporation with an office and a place of business located in
Tampe, Florida, where it is engaged im the business of oper-
a representative penod of ume, Belk’s has received in excess of
$500,000 in revenues, and in addition has received at its
Tampa. Flonda facilities, goods valued in excess of $50,000
shipped to it directly from points located outside the State of
Florida. Belk’s is now, and has been at all umes maternal
here:n, an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.

22a

7

H. J. High Construction Company (herein High) is
a Florida corporation with an office and place of business
located in Orlando, Florida, where it is engaged as a gen-
eral contractor in the building and construction industry
at jobsites throughout the State of Florida. During the
past twelve months, a representative period of time, High
has performed services at its Florida jobsites, valued in
excess of $50,000 for various employers, including Wilson’s,
which in turn meet a direct jurisdictional standard of
the Board. High is now, and has been at all times mate-
rial herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.

8.

Respondent Union is, and has been at all times mate-
rial herein, a labor organization within the meaning of
Section 2(5) of the Act.

At all times material herein, East Lake Square Mall,
located in Tampa, Florida, has been an cperating shopping
center mall, owned and operated by DeBartolo through
its subsidiary, Eastlake Square Associates. At no time
germane to this Complaint has DeBartolo operated a retail
store at East Lake Square Mall, nor does DeBartolo own
any of the property on which the Belk’s is located. East
Lake Square Mall has approximately 85 tenant employers
which, at all times material herein, have leased space
in which to operate their respective stores from DeBartolo.
At all times material herein, said tenant employers have
been, and are now, perrons engaged in commerce or in
an industry affecting commerce, within the meaning of
Section 8(b)(4) of the Act. Wilson's is a tenant of

as well as working conditions and other matters dealing
with labor relations. Copy of a sample standard lease
agreement is attached as Joint Exhibit 1.

Square Mall. Pursuant to the terms of the lease, Wilson's

Wilson’s has contracted with High, a general contractor,
to build its department store. High has empicyed its own
emplo; ees, as well as contracted with various sub-contrac-
tors to build Wilson’s Department Store. High is not
a tenant of DeBartolo, does not engage in the operation
of retail stores and does not have a contract to lease
or purchase any property in or adjacent to the East Lake
Square Mall. Apart from any provisions contained in
Joint Exhibit 2, neither DeBartolo, nor any tenant, nor
Belk’s had or has anything to do with the selection of
High by Wilson’s or of Sub-contractors by High, nor do
they or any of them in any way control, dictate or sug-
gest the wages, hours or working conditions paid by High

11.

At no time germane to this Complaint has Wilson's
operated a retail store at East Lake Square Mall.

12.

Neither DeBartolo, nor any tenant other than Wilson's,
nor Belk’s, has any contract or business relationship of
any type with High. No tenant nor Belk’s has any con-
tract or business relationship with Wilson's.

Between the dates of December 13, 1979, and January
4, 1980, Respondent Union handbilled at the entrances to
East Lake Square Mall (copy of handbill attached as Joint
Exhibit 3). The handbilling ceased only because of an
Order of the Circuit Court of the 13th Judicial Circuit.
Hillsborough County, Florida, enjoining such activity [copy
of Order attached as Joint Exhibit 4).

15.

Joint Exhibit 5 is a plot plan of East Lake Square Mall.
The handbilling took place at all four entrances to the

25a

Mall which are identified by the letter “X” on Joint Ex-
hibit 5. The four entrances are all located on the private
property of DeBartolo but are utilized as means of ingress
and egress to the retail stores located in the Mail.

16.

On December 20, 1979, Charging Party, by and through
its attorney, sent a letter to Mark F. Kelly, attorney for
Respondent, relating to Respondent’s handbilling activity.
[A copy of said letter is attached hereto as Joint Exhibit
6.] Respondent received this letter in due course. There-
after, Respondent refused to agree to alter its activity in
accordance therewith and continued to handbill in the
same fashion as it had done since December 13, 1979.

17.

If it were not for the fact that High was and is per-
forming construction work on the Wilson's store, Respon-
dent would have no dipute with DeBartolo, Belk’s or any
tenant in the Mall and would have no cause to handbill
at East Lake Square Mal).

18.

At all times material herein Belk’s has maintained
and operated a retail establishment within Hillsborough
County, Florida, which is more particularly located at East
Lake Square Mall. That retail establishment is located
on land which Belk’s owns. That land is comprised of
approximately 10.72 acres of property within a larger par-
cel of property o.herwise known as East Lake Square Mall.
The property owned by Belk’s includes the land upon
which the store structure stands and the adjacent side-
walks and parking area.

DeBartolo is that Belk’s pays DeBartolo for maintenance

store with DeBartolo. Belk’s pays no money or thing of
re-
lationship with any of them, except as provided in any

ously distributed at the mal] entrances. The handbilling

by the O's on plot plan, attached as Joint Exhibit 5). The
handbilling ceased only because of an Order of the Circuit
Court of the Thirteenth Judicial Circuit, Hillsborough

County, Florida, enjoining such activity [copy of said Order
attached as Joint Exhibit 7).

ee
27a

Neither DeBartolo, Belk’s nor any tenant has the abil-
ity to remove High as the general contractor on the con-
struction project of the Wilson's store at East Lake Square
Mall.

24

The parties stipulate that the sole issue to be decided
by the Board in this case is whether or not Respondent
Union violated Section 8(b)(4)(B) of the Act by en-
gaging in the handbilling activity detailed above.

This stipulation is made without prejudice to any ob-
jection that any party may have as to the materiality or
relevance of any fact stated herein.

Counsel for the General Counsel moves to amend the
Complaint to conform to the facts recited above.

Florida Gulf Coast Building Trades
Council, AFL-CIO
Dated: 4/2/80 By: /s/ Richard H. Frank
Attorney for Florida Gulf Coast
Building Trades Council, AFL-
CIO, Respondent
The Edward J. DeBartolo Corpora-
tion
Dated: 4/2/80 By: /s/ Mark E. Levitt
Attorney for the Edward J. De-
Bartolo Corporation, Charging
Party
The General Counsel
Dated: 4/2/80 By: /s/ Steven L. Sommers
Counsel for the General Counsel

G2352586 wxas SS<28e 74

poe BEER

pS EEEEEES

29a

3a

ARTICLE Il] —Minimum Rent

Lessee shall pay to Lessor as Minimum Rent for the
Demised Premises the sum of
Dollars ($ ___) per annum in equal monthly installments
of — Dollars ($___.) each,
all in advance, on the first day of every calendar month during
the term hereof. If the term of this Lease shall commence on a
day other than the first day of the month, Lessee shall pay
Minimum Rent equal to one-thirtieth (1/30th) of the monthly
Minimum Rent multiplied by the number of rental days of such
fractional month. In the event any installment of Minimum
Rent or other charges accruing under the Lease shall become
overdue, a “Late Charge” of five cents (5¢) per each dollar so
overdue may be charged by Lessor for the purpose of defraying
the expense incident to handling such delinquent payment.

If the Shopping Center shall at any time during the term of
this Lease, contain in excess of department stores,
the Minimum Rent herein provided for shall automaucally be
increased ten percent ( 10%) upon the date each additional!
department store in excess of 60,000 square feet opens for
business.

ARTICLE IV —Percentage Rent

1. In addition to the payment of Minimum Rent, Lessee
shall pay to Lessor for each Lease Year of the term hereof as
Percentage Rent, an amount, if any, equal to ____ percent
(—_.%) of Adjusted Gross Sales made at. im, on or from the
Demuised Premises during such Lease Year in excess of
(hereinafter referred to as “Percentage Break
Point”). In the event of a Partial Lease Year, the Percentage
Rent will be an amount, if any, equal to ____ percent (____)
of Adjusted Gross Sales made at, in. on or from the Demised
Premises during such Partial Lease Year in excess of the

3la

Percentage Break Point which shall be proportionately reduced
based upon the period of time contained in such Partial Lease
Year. The Percentage Break Point for such Partial Lease Year
shall be determined by multiplying the Percentage Break Point
for the first lease Year by a fraction the numerator of which
shall be the number of days contained in such Partial Lease
Year and the denominator of which shall be 365 days.

2. “Adjusted Gross Sales”, as used herein, shal] mean the
amount of gross sales, income, receipts, revenues and charges
of, in connection with and for all merchandise, services or other
operauons or businesses sold or rendered at, in, on or from the
Demised Premises by Lessee or any subtenants, licensees or
concessionaires, whether for cash or on a charge, credit or time
basis, without reserve or deduction for inability or failure to
collect, including, but not limited to, such sales and services (a)
where orders originate and/or are accepted by Lessee in the
Demised Premises but delivery or performance thereof is made
from or at any place other than the Demised Premises; (b)
pursuant to mail, telegraph, telephone or other similar orders
received or filled at or in the Demised Premises; (c) by means
of mechanical and other vending machines in the Demised
Premises; (d) which Lessee in the normal and customary
course of business would credit or attribute to its business upon
the Demised Premises or any part or parts thereof, adjusted by
the deduction, if onginally included in gross sales or exclusion,
as the case may be, from gross sales of the following, provided
that separate records are maintained for such deductions or
exclusions: (a) amounts of refunds, allowances made on
merchandise claimed to be defective or unsatisfactory or dis-
counts to customers. provided that if such refunds, allowances
or discounts are in the form of credits to customer, such credits
shall be included in gross sales when used; (b) exchanges of
merchandise between stores of Lessee where such exchanges
are made solely for the operation of Lessee's business and not
for the purposes of consummating a sale which has been made

32a

at, in, on or from the Demised Premises and/or for the purpose
of depriving Lessor of the benefit of such sale which otherwise
would have been made at, in, on or from the Demised
Premises; (c) returns to shippers and manufacturers for credit;
(d) sale of trade fixtures or store operating equipment after use
thereof in the conduct of Lessee’s business in the Demised
Premises; (¢) all sums and credits received in settlement of
claims for loss or damage to merchandise; and (f) amount of
any excise or sales tax levied upon retail sales and payable over
to the appropnate governmental authority provided that speci-
fic record is made at the time of each sale of the amount of sales
tax, and the amount thereof is expressly charged to the
customer.

3. Percentage Rent for each Lease Year shall become due
and payable either thirty (30) days after the last day of each
Lease Year or on the |Sth day of the month immediately
following the month during which said Adjusted Gross Sales
exceeds the Percentage Break Point for such Lease Year and
thereafter shall be paid monthly on all additional Adjusted
Gross Sales made during the remainder of such Lease Year,
whichever occurs first. Percentage Rent for a Partial Lease
Year shall become due and payable thirty (30) days after the
last day of such Partial Lease Year. Lessee, or Lessee’s store
manager or designated representauve shall submit to Lessor’s
mall manager at the Shopping Center, on or before the Sth day
of each month of each Lease Year or Partial Lease Year, a
written unaudited statement showing Lessee's gross sales, item-
ized deductions and exclusions for the preceding calendar
month, signed by Lessee, or Lessee’s store manager or desig-
nated representative. In addition to the foregoing, Lessee shal!
submit to Lessor, on or before the 30th day following the end of
each Lease Year and Partial Lease Year, a written audited
statement showing Lessee’s gross sales, itemized deductions and
exclusions for the preceding Lease Year or Partial Lease Year.
signed by Lessee and cerufied under oath to be complete and

ions for the preceding three (3) calendar months, signed by
Lessee and certified under oath to be complete and correct.
Lessor shall not request such statements more than four (4)
times during any Lease Year or Partial Lease Year. If Lessee
shall fail to prepare and deliver any such statement of gross
sales required herein, Lessor, in addition to other nights or
remedies it may have and upon ten (10) days notice to Lessee,

Lessee, and Lessee shall pay on demand all expenses of such
audit and of the preparation of any such statements and all
sums, if any, as may be shown by such audit to be due as
Percentage Rent.

4. Lessee shall keep upon the Demised Premises or at its
pnncipal office, books and records in accordance with generally
accepted accounung pmncipies consistently applied in which
shall be recorded Adjusted Gross Sales for the Demised
Premises. The books and records of account shall also include
al) federal, state and local tax returns and all pertinent orginal
sales records of Lessee relating to Lessee’s sales. Pertinent
onginal sales records shall be separately maintained for the
Demuised Premises and shall include: (a) daily dated cash
register tapes, including tapes from temporary registers; (b)
senally numbered sales slips; (c) the orginals of all mail orders
at and to the Demised Premises; (d) the onginal records of all
telephone orders at and to the Demised Premises; (¢) settle-
ment report sheets of transactions with subtenants, con-
cessionaires and licensees; (f) the onginal records showing that

OO gA=_— La,

34a

merchandise returned by customers was purchased at the
Demised Premises by such customers; (g) memorandum
receipts or other records of merchandise taken out on approval:
(hb) Lessee’s bank accounts [separate bank account(s) shall be
maintained for receipts from the Demised Premises and no
receipts and/or refunds from any other source shall be depos-
ited in such account(s)}; (i) daily and/or weekly transaction
reports, and (j) such other sales records, if any, which would
normally be examined by an independent accountant pursuant
to accepted auditing standards in performing an audit of
Lessee’s sales. Such books and records shall be open to the
imspection of Lessor and Lessor’s duly authorized agents at all
reasonable umes, dumng business hours, at any ume dunng the
term of this Lease and for a period of at least one (1) year after
the termination of this Lease. If Lessor should make an audit
of Lessee’s records and Lessee’s gross sales statement should be
found to be understated by more than two percent (2%) in any
Lease Year, then Lessee, in addition to paying the Percentage
Rent due, if any, for such understa.ement, shall pay to Lessor
the cost of audit. The cost of such audit shall be determined on
a ume and expense basis and the rate per hour shall not exceed
that charged for similar personnel by a national firm of
independent Cerufied Public Accountants.

5. If Lessee shall fail to pay Percentage Rent in an amount
equal to at least twenty-five percent (25%) of the annual
Minimum Rent payable pursuant to Armicie III of this Lease in
at least one (1) of the first five (5) Lease Years of the term of
this Lease, then Lessor may elect to terminate this Lease by
notice to Lessee given within six (6) months after the end of the
fifth Lease Year and this Lease shail terminate and be null and
void ninety (90) days after delivery of such notice; provided,
however, Lessee may render such notice of termination inoper-
auve if Lessee shall, within thirty ( 30) days after receipt of such
notice, agree in wntng to increase the Minimum Rent payable
for the sixth Lease Year and each Lease Year thereafter to an

35a

amount equal to one hundred twenty-five percent (125%) of
the Minimum Rent payabie for the sixth Lease Year and each
Lease Year thereafter.

ARTICLE Vil—Lessee’s Work and Approval of Lessee’s
Pians and Specifications

1. Promptly after Lessor notifies Lessee that the shell of
the Demised Premises is ready for commencement of Lessee’s
work, Lessee shal] commence and thereafter complete with due
diligence its construction work and imstallanon of fixtures in
accordance with its construction obliganons set forth in Exhibit
“A”. Part Il, “Lessee’s Work Done at Lessee’s Expense”,
annexed hereto and im accordance with its Preliminary Plans
and Specificanons and its Working Plans and Specifications, as
provided for herein. If Lessee shall neglect. fail or refuse to
commence its work as aforesaid and thereafter neglects. fails or
refuses to diligently proceed with and complete its work, then
Lessor, in addiuon to other nghts or remedies it may have and.
after thirty (30) days nouce to Lessee, may (a) complete
Lessee’s work at Lessee’s expense and thereupon commence the
term of this Lease, (b) commence the term of this Lease and all
of Lessee’s payment obligations hereunder, norwithstanding the
incompiletion of Lessee’s work, or (c) declare wus Lease
cancelled and of no further force and effect.

2. Lessee may, but only with the consent of Lessor, enter
the Demuised Premuses for preliminary work pmor to the com-
pletion of Lessor’s work, provided that Lesssee’s work shall be
done in such manner so as not to interfere with the compienon
of Lessor’s work, and provided also that Lessee’s work does not
interfere with any of Lessor’s labor agreements.

3. Lessee shall furnish to Lessor all certificates and
approvals with respect to work done by Lessee or on Lessee’s
behalf that may be required from an authonrty for the issuance

36a

of a certificate of occupancy and Lessor shall have no responsi-
bility or liability whatsoever for any loss or damage to any
fixtures or equipment installed or left in the Demised Premises
and Lessee’s entry on and occupancy of the Demised Premises
Prior to the commencement of this Lease shall be governed by
and subject to all the provisions, covenants and conditions of
this Lease other than those requiring the payment of Minimum
Rent and ower charges, except utility charges.

4. Lessee shall furnish Preliminary Plans and Specifica-
uons incorporating Lessee’s construction obligations under Ex-
hibit “A” for Lessor’s prior approval within fifteen (15) days
after Lessor’s architects provide Lessee with an Outline Plan for
the Demised Premises. Within thirty (30) days after approval
by Lessor of Lessee’s Preliminary Plans and Specifications,
Lessee shall submit Working Plans and Specifications for
Lessor’s review and prior approval. The approval by Lessor of
the Preliminary Plans and Specifications and the Working
Plans and Specifications shall not constitute the assumption of
any liability on the part of Lessor for their compliance or
conformity with applicable building codes and the requirements
of this Lease or for their accuracy, and Lessee shall be solely
responsible for such plans and specifications.

5. Lessee may erect illuminated signs on the interior mall
front of the Demised Premises and shal! maintain said signs in
a good state of repair and save Lessor harmless from any loss,
cost or damage as a result of the erection, maintenance.
existence or removal of the same: and shal! repair any damage
which may have been caused by the erection, existence, mainte-
nance or removal of such signs. All signs shall be in accordance
with Lessor’s Sign Specifications, a copy of which will be
attached to the Outline Plan and shall be approved in writing
by Lessor. Upon vacating the Demised Premises, Lessee shall
remove all signs and repair all damage caused by such removal.

Ee

37a

ARTICLE VUlI—Use of Premises

1. Lessee shall operate its business in the Demised
Premises during the term of this Lease under the name
and the Demised Premises shall
be occupied and used for the purpose of

and for no other purpose.

2. Lessee shal] not abandon or leave vacant the Demised
Premises, shail not permit, license, or suffer the occupancy of
any other party in the Demised Premises and shall:

(a) Keep the Demised Premises continuously and
uninterruptediy open for business at least from 10:00 a.m.
to 9:30 p.m. Monday through Saturday and during such
hours on Sunday that at least one (1) department store in
the Shopping Center and fifty percent (50%) of the other
tenants in Lessor’s parcel are open for business, unless
prevented from doing so by strikes, fire, casualty or other
causes beyond Lessee’s control.

(b) Conduct no auction, fire or bankruptcy sales or
similar practice.

(c) Display no merchandise outside the Demised
Premises nor in any way obstruct the malls or sidewalks
adjacent thereto and store all trash and refuse in appropri-
ate containers within the Demised Premises and attend to
the daily disposal thereof in the manner designated by
Lessor. Lessee shail not burn any trash or rubbish in or
about the Demised Premises or anywhere else within the
confines of the Shopping Center. Lessee shall not operate
a garbage grinder without Lessor’s pnor consent. If Lessor
elects to provide refuse compactor service in the Shopping
Center, Lessee shall use said service exclusively for dis-

38a

posal of all waste. In the event compactor service is not
provided, Lessee shall use a refuse disposal service ap-
proved by Lessor.

(d) Load or unload all merchandise, supplies, fix-
tures, equipment and furniture and cause the collection of
rubbish only through the rear service door or doors of the
Demised Premises. No deliveries of any kind shall be
made through the front entrance.

(e) Keep the Demised Premises in a careful, safe,
clean and proper manner; and not permit any rubbish or
refuse of any nature emanating from the Demised Prem-
ises to accumulate in the mall areas or rear delivery area.

(f) Not solicit business in the Common Areas or
distribute any handbills or other advertising matter in the
Common Areas.

(g) Prevent the Demised Premises from being used in
any way which will injure the reputation of the same or of
the Shopping Center of which it is a part or from being
used in any way which may be a nuisance, annoyance,
inconvenience or damage to the other tenants or occupants
of the Shopping Center, including, without limiting the
generality of the foregoing, the operation of any in-
strument or apparatus or equipment or the carrying on of
any trade or occupation which emits an odor discernible
outside of the Demised Premises and which may be
deemed offensive in the nature or noise by the playing of
any musical instrument or radio or television or the use of a
microphone, loud speaker, electrical equipment or other
equipment which may be heard outside of the Demised
Premises.

(h) Display or affix no sign, advertising, placard,
name, trademark, insignia, decal, advertising matter or any

el

39a

other item or items on any exterior door, wall or window or
within any display window space in the Demised Premises
or within five (5) feet of the front of the Demised Premises
in the case of an open storefront, or within any entrance to
the Demised Premises. Lessor shall have the right, without
notice to Lessee and without any liability for damage to
the Demised Premises reasonably caused thereby, to re-
move any items displayed or affixed in violation of the
foregoing provisions.

(i) Abide by all reasonable rules and regulations
established by Lessor, from time to time, with respect to
the common areas, facilities, improvements and sidewalks.

3. Upon the commencement of the term of this Lease,
Lessee shall proceed with due dispatch and diligence to open
for business in the Demised Premises and shall thereafter
conunuously, actively and diligently operate its said business on
the whole of the Demised Premises, in a high grade and
reputable manner maintaining in the Demised Premises an
adequate staff of employees and a full and complete stock of
merchandise, during business hours throughout the term of this
Lease unless prevented from so doing by fire, strikes or other
contingencies beyond the control of Lessee. If Lessee fails to
open for business within thirty (30) days after the com-
mencement of the term or fails to thereafter keep the Demised
Premises open each business day during the hours specified
herein, then Lessee shall pay as rent during each day the
Demised Premises are not open or in which such hours are not
maintained an amount equa! to one hundred twenty-five per-
cent (125%) of the Minimum Rent determined on a per diem
basis pursuant to Article III. Said amount shall be in addition
to other charges due under this Lease and shall represent the
agreed liquidated damages to Lessor as the exact amount of
damages to Lessor cannot be ascertained with certainty. The
right to receive such liquidated damages shall be in addition to
all other nghts or remedies Lessor may have.

40a

4. Lessee shall not use, occupy, suffer or permit the
Demised Premises or any part thereof to be used or occupied
for any purpose contrary to law or the rules or regulations of
any public authority or the requirements of amy insurance
underwriters or rating bureaus or in any manner so as to
increase the cost of insurance to Lessor over and above the
normal cost of such insurance for the use above permitted for
the type and location of the building of which the Demised
Premises are a part. Lessee shall, on demand, reimburse Lessor
for all extra premiums caused by Lessee’s use of the Demised
Premises, whether or not Lessor has consented to such use.
Nothing contained herein shall permit a use other than the use
hereinbefore provided. Lessee shall promptly comply with all
present and future laws, regulations or rules of any county,
state, federal and other governmental authority and any bureau
and department thereof, and of the National Board of Fire
Underwriters or any other body exercising similar function
which may be applicable to the Demised Premises, including
the making of any required structural changes thereto. If
Lessee shall install any electrical equipment that overloads the
lines in the Demised Premises, Lessee shall make whatever
changes are necessary to comply with the requirements of the
insurance underwnriters and governmental authorities having
jurisdiction thereover.

ARTICLE IX — Merchants Association

Lessee shall become a member of any Merchants associ-
ation formed by the tenants of the Shopping Center and
approved by Lessor, abide by all rules and regulations estab-
lished by said Merchants Association and maintain such
membership. Lessee shall cooperate in any Merchants Associ-
ation’s Shopping Center wide sales and promotions and adver-
tise annually in at least four (4) Shopping Center wide
Merchants Association newspaper sections or advertisements as
from time to time determined by the Board of Directors of the

- ee ee

4la

Merchants Association. The minimum size of such advertise-
ments shall be either one-eighth (1/8) page in a full-sized
newspaper section, or one-fourth (1/4) of a page of a tabloid
size advertisement. In addition to the foregoing, Lessee shall
pay as its share of the cost of the activities conducted by the
Merchants Association the sum of twenty-five cents (25¢) per
year for each square foot of Floor Area contained in the
Demised Premises, hereinafter referred to as “Merchants Asso-
ciation Payment”, payable in advance in quarter annual in-
stallments, plus a nonrecurring fee of twenty-five cents (25¢)
for each square foot of Floor Area contained in the Demised
Premises as an initial membership fee in such Merchants
Association. Commencing with the second Lease Year (or first
Lease Year in the event of a Partial Lease Year), and each
Lease Year thereafter, the Merchants Association Payment
shall be adjusted upward or downward in the manner set forth
below, but never less than the above amount. The amount of
the Merchants Association Payment for each Lease Year,
commencing with the second Lease Year (or first Lease Year in
the event of a Partial Lease Year), shall be determined as
follows: Using the All Items portion of the “Consumer Price
Index for All Urban Consumers” (1967100), published by
the Bureau of Labor Statistics of the United States Department
of Labor, applicable on the date of this Lease as the denomina-
tor and the index number for the first month of each Lease
Year thereafter as the numerator and multiplying said resulting
fracuon times the above stated Merchants Association Pay-
ment. In the event that the Bureau of Labor Statistics shall
change the base penod, the new index numbers shall be
substituted for the old index numbers in making the above
computation. In the event such Consumer Price Index of the
Bureau of Labor Statistics of the United States Department of
Labor is discontinued, Lessor shall select another index pub-
lished by a department or agency of the United States Govern-
ment to be substituted for the pnor index, with any appropriate
adjustment required because of the predecessor index. This

42a

procedure shall continue until such time as no such index is so
published, at which time Lessor shall reasonably substitute an
index prepared by any appropriate government, corporation or
other entity.

ARTICLE XII—Common Areas

. Lessor hereby grants to Lessee, during the term of this
. a nonexclusive use of the Common Areas for pedestrian
and vehicular traffic. The Common Areas shall be subject to
the exclusive control and management of Lessor and to such
rules and regulations as Lessor may, from time to time, adopt
and Lessor reserves the right to change the areas, locations and
arrangement of parking areas and other Common Areas; to
enter into, modify and terminate easements and other agree-
ments pertaining to the maintenance and use of the parking
areas and other Common Areas; to close any or all portions of
the Common Areas to such extent as may, in the opinion of
Lessor’s counsel, be legally sufficient to prevent a dedication
thereof or the accrual of any rights to amy person or to the
public therein; to close temporarily, if necessary, any part of the
Common Areas in order to discourage noncustomer parking:
and to make changes, additions, deletions, alterations or im-
provements in and to such Common Areas, provided that there
shall be no unreasonable obstruction of Lessee’s right of ingress
to or egress from the Demised Premises.

2. Lessor shall operate, maintain and repair the Common
Areas in such manner as Lessor shall in its sole discretion
determine. For these services Lessee shall pay its proportionate
share of the cost and expense to Lessor of operating, maintain-
ing and repairing the Common Areas (hereinafter referred to
as “Common Area Maintenance Costs”) during the term of this
Lease, including any period during which Lessee shall transact
business in the Demised Premises prior to the commencement

43a

of the term of this Lease. For the purposes of this Article, the
term “Common Area Maintenance Costs” shall mean all sums
incurred in connection with the operation, maintenance and
repair of the Common Areas, and shall include, but not be
limited to, the costs and expenses of [the following subpara-
graphs (a) through (j) are for definition only and are not to be
construed so as to impose any obligations on Lessor]:

(a) snow, ice, garbage and trash removal; maintenance,
repair and replacement of all parking lot surfaces,
service areas and courts, including cleaning, sweeping,
painting, striping and repaving; maintenance, repair
and replacement of sidewalks, curbs, guardrails,
bumpers, fences, screens, flagpoles, bicycle racks,
Shopping Center identification signs, directional signs,
traffic signals, and other traffic markers and signs;

(b) maintenance, repair and replacement of the (i) storm
and sanitary drainage systems, including disposal
plants and lift stations and retention ponds or basins;
(ii) irrigation systems; (iii) electrical, gas, water and
telephone systems; (iv) lighting systems (including
bulbs, poles and fixtures); (v) emergency water and
sprinkler systems; (vi) other utlity systems; (vi)
heating, ventilating and air conditioning systems; and
( viii) security systems, including any utility charges in
connection with any of the foregoing systems;

(c) imtenor and exterior planting, replanting and repla-
cing of flowers, shrubbery, plants, trees and other
landscaping;

(d) maintenance, repair and replacement of all portions of
the buildings, both interior and exterior, on Lessor’s
Parcel (excluding the Demised Premises and premises
leased to other tenants), including, but not limited to,

(e)

(f)

44a

floors, floor coverings, ceilings, walls, roofs and roof
flashings, canopies, skylights, signs, planters, benches,
fountains, elevators, escalators and stairs, fire exits,
doors and hardware, windows, glass and glazing:

premiums or contributions for insurance, including,
without limitation, liability insurance for personal
injury, death and property damage; insurance against
liability for defamation and claims of false arrest
occurring in and about the Common Areas; work-
man’s compensation; broad form all peril insurance
covering the Common Areas in the Shopping Center
which may include flood insurance, earthquake insur-
ance, boiler insurance and/or rent insurance [for the
purposes of this provision of subparagraph (e), Com-
mon Areas shall be deemed .to include the Demised
Premises and premises leased to other tenants]; _

maintenance, repair and acquisition cost (rental fees

and/or purchase price or in lieu of purchase price, the

annual depreciation allocable thereto) of all security
devices, machinery and equipment used in the oper-
ation and maintenance of the Common Areas, and all
personal property taxes and other charges incurred in
connection with such security devices, machinery and
equipment;

(g) all license and permit fees, and all parking surcharges

that may result from any environmental or other laws.
rules, regulations, guidelines or orders; the cost of
obtaining and operating public transportation or
shuttle bus systems as used in connection with bring-
ing customers to the Shopping Center or if required by
any environmental or other laws, rules, regulations,
guidelines or orders;

(h) the cost of installation and operation of music pro-

gram services and loudspeaker systems;

45a

(i) personnel, including, without limitation, security and
maintenance people on the Shopping Center, the mail
manager and assistant mall manager, secretaries and
mall management bookeepers (including, without
limitation, the payroll taxes and employee benefits of
such personnel); and

(j) Lessor’s administrative costs in an amount equal to
fifteen percent (15%) of the total Common Area
Maintenance Costs.

Notwithstanding the foregoing provisions, Common Area
Maintenance Costs shall not imclude:

(a) depreciation (other than depreciation as above speci-
fied );

(b) costs of repairing and replacing to the extent that
proceeds of insurance or.condemnation awards are
received therefor, and

(c) costs of a capital nature to the extent they improve the
Common Areas beyond their onginal condition or
utility as they may be put from ume to ume by Lessor.

In calculating Lessee’s proportionate share of the Common
Area Maintenance Costs, the contributions, if any, paid by
department stores and “variety or specialty stores” to Lessor
towards Common Area Maintenance Costs shall be subtracted
from Common Area Maintenance Costs before determination
of Lessee’s proportionate share thereof. For the purposes of
this Lease, a “variety or specialty store’ is an occupant which
leases or occupies 15,000 square feet or more of building space
in the Shopping Center. If Lessor from time to time acquires, or
makes available, additional land for parking or other common
area purposes, then Common Areas shall include such addition-
al land.

3. Lessee’s proportionate share of the Common Area
Maintenance Costs shall be computed by multiplying the total

46a

amount of the Common Area Maintenance Costs each year by
a fraction, the numerator of which shall be the Floor Area of
the Demised Premises and the denominator of which shall be
the average of the total square feet of all building space open
for business in Lessor’s Parcel (excluding all building space
leased to department stores and “variety or specialty stores”)
on the first day of each month of the calendar year in which
such cost was incurred.

Lessee’s proportionate share of Common Area Mainte-
nance Costs for each full calendar year and partial calendar
year shall be paid in monthly installments on the first day of
each calendar month, in advance, in an amount estimated by
Lessor from time to time, hereinafter referred to as “Common
Area Maintenance Payment”. Subsequent to the end of each
full calendar year or partial calendar year, Lessor shall noufy
Lessee of Lessee’s proportionate share of Common Area
Maintenance Costs for such full calendar year or partual
calendar year. Lessor shall] include in such notice, a certifica-
tion of the Common Area Maintenance Costs by an independ-
ent Certified Public Accounting firm designated by Lessor, and
such certification shall be deemed conclusive as to the actual
amount of Common Area Maintenance Costs. The fee for such
ceruficaion of Common Area Maintenance Costs shall be
included in the Common Area Maintenance Costs. If the
Common Area Maintenance Payment paid by Lessee pursuant
to this Article for any full or partial calendar year shall be less
than the actual amount due from Lessee for such year as shown
on such notice, Lessee shall pay to Lessor the difference
between che amount paid by Lessee and the actual amount due.
within ten (10) days after receipt of such notice. If the total
amount paid by Lesese for any full or partial calendar year
shall exceed the actuai amount due from Lessee for such full or
partial calendar year, such excess shall be credited against the
next Common Area Maintenance Payment due from Lessee to
Lessor pursuant to this Article. If the date that the term of this

47a

Lease commences or the date Lessee opens for business in the
Demised Premises, whichever date shall first occur, ( hereinafter
referred to as “Effective Date”) is a day other than the first day
of the calendar year, or if the term of this Lease shall end on a
day other than the last day of the calendar year, then Lessee’s
proportionate share of Common Area Maintenance Costs shall
be billed and adjusted on the basis of such fraction of a
calendar year. If the Effective Date occurs in the calendar year
during which the Shopping Center initially opens for business,
then the Common Area Maintenance Costs for such partial
calendar year shall be reduced by a fraction, the numerator of
which shall be the number of days from the Effective Date
through the following December 31 and the denominator of
which shall be the number of days from the date the Shopping
Center opened for business through the following December
3 Ist.

4. Lessor shall protect, indemnify and save harmless
Lessee against and from all claims, loss, cost, damage or
expense arising out of or from any accident or other occurrence
on that portion of the Common Areas located on Lessor’s
Parcel, except for the willful acts or negligence of Lessee, its
agents, subtenants, employees, contractors or assignees.

5. Lessor shall provide public liability insurance (either
through the purchase of insurance or a funded self-insurance
plan) on that portion of the Common Areas located on Lessor’s
Parcel providing coverage of not less than Five Hundred
Thousand Dollars ($500,000) against liability for injury to or
death of any one person and One Million Dollars ($1,000,000 )
for any one occurrence, or in lieu of the foregoing a combined
single bond of at least One Million Dollars ($1,000,000).

6. Lessee shall cause it and its employees to park only in
the outer areas of the parking lot or such places as provided and
designated by Lessor for employee parking. Within ten (10)
days after the request by Lessor, Lessee shall deliver to Lessor a

48a

list of Lessee’s and its employees’ automobiles which such list
shall set forth the description of and the state automobile
license numbers assigned to such automobiles. Thereafter,
Lessee shall advise Lessor of any changes, additions or dele-
tions in such list. If any automobile appearing on said list is
parked in any area of the Shopping Center other than the area
designated by Lessor at any time after Lessor has given notice
to Lessee or Lessee’s store manager that the same automobile
has previously been parked in violation of this provision, then
Lessee shall pay to Lessor the sum of Ten Dollars ($10) per
day for each such automobile for each day (or part thereof) it
is parked in violation of this provision. Lessee shall pay such
sum to Lessor within ten (10) days after receipt of notice from
Lessor.

ARTICLE XVIII — Utilities

1. Lessee shall contract for, in its own name, and shall pay
before delinquency, for all utility services rendered or furnished
to the Demised Premises, including heat, water, gas, electricity,
fire protection, sewer rental, sewage treatment facilities and the
like, together with all taxes levied or other charges on such
utilities. If Lessor shall supply any such services, or if any such
services are required to be paid for by Lessor under a master
meter, Lessee shall purchase same from Lessor at charges not in
excess of the charges for the service in question made by any
public utility corporation or governmental agency supplying
such utilities in the area plus an additional ten percent ( 10%)
for Lessor’s overhead costs. Any such charges for service
supplied by Lessor shall be due and payable within ten (10)
days after billings therefor are rendered to Lessee. In no event
shall Lessor be liable for the quality, quantity, failure or
interruption of such service to the Demised Premises.

2. Lessor may, with notice to Lessee, or without notice in
the case of an emergency, cut off and discontinue gas, water,

49a

electricity and any or all other utilities whenever such dis-
continuance is necessary in order to make repairs or alterations.
No such action by Lessor shall be construed as an eviction or
disturbance of possession or as an election by Lessor to
terminate this Lease, nor shall Lessor be in any way responsible
or liable for such action.

ARTICLE XXV—Quiet Enjoyment

Lessor agrees that if Lessee pays the Minimum and
Percentage Rent and other charges herein provided and shall
perform all of the covenants and agreements herein stipulated
to be performed on Lessee’s part, Lessee shall, at all times
during said term, have the peaceable and quiet enjoyment and
possession of the Demised Premises without any manner of
hindrance from Lessor or any persons lawfully claiming
through Lessor, except as to such portion of the Demised
Premises as shall be taken under the power of eminent domain.

ARTICLE XXVIII—Changes and Additions to Shopping
Center

1. Lessor shall have the exclusive nght to use all or any
part of the roof over the Demised Premises and exterior walls
of the Demised Premises for any purpose; to erect in connection
with the construction thereof temporary scaffolds and other aids
to construction on the extenor of the Demised Premises,
provided that access to the Demised Premises shall not be
denied; and to install, maintain, use, repair and replace pipes,
ducts, conduits and wires leading through the Demised Prem-
ises and serving other parts of the Shopping Center in locations
which will not materially interfere with Lessee’s use thereof. In
addition to the foregoing, Lessor may make any use it desires of
the side and rear walls of the Demised Premises, provided that

50a

there shall be no encroachment upon the interior of the
Demised Premises. Lessor hereby reserves the right at any time
to make alterations or additions to, and to build additional
stories on, the building in which the Demised Premises are
contained and to build adjoining the same. Lessor also reserves
the right to construct other buildings or improvements in the
Shopping Center from time to time and to make alterations
thereof or additions thereto and to build additional stories on
such building or buildings and to incorporate additional land
into Lessor’s Parcel and build thereon and to construct deck or
elevated parking facilities.

2. If at amy time (a) Lessor is required by any laws,
ordinances, rules or regulations of any governmental agency
having jurisdiction over the Shopping Center to provide addi-
uonal parking in Lessor’s Parcel, or (b) Lessor proposes to
increase the total.rentable building space within the Shopping
Center which would require additional parking in the Shopping
Center, Lessor may elect to provide such additional parking by
constructing deck or elevated parking facilities, hereinafter
referred to as “Deck Parking”. In the event Lessor so elects,
Lessee shal] pay its proportionate share of the capital expense
of providing such Deck Parking. Lessee’s proportionate share
shall be determined by (a) multiplying the total capital expense
of providing such Deck Parking by a fraction, the numerator of
which shall be the Floor Area of the Demised Premises and the
denominator of which shall be the total rentable building space
in Lessor’s Parcel, either existing, or proposed by Lessor, as the
case may be, at the ume of providing such Deck Parking; and
(b) multuplying the figure derived as aforesaid by a fraction.
the numerator of which is the number of full calendar months
remaining in the term of this Lease, and the denominator of
which shall be the number of months required to amortize the
permanent financing obtained by Lessor to finance the capital
expense of providing such Deck Parking. Lessee shall pay its
Proporuonate share of the capital expense of providing such

Sla

\
Deck Parking in equal monthly installments on the first day of
every calendar month during the remaining term hereof, plus
interest thereon at the rate of nine percent (9%) per annum.

ARTICLE XXXIV —Relationship of Parties

Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create
the relationship of principal and agent or of partnership or of
joint venture or of any association whatsoever between Lessor
and Lessee, it being expressly understood and agreed the:
neither the computation of rent nor any other provisions
contained in this Lease nor any act or acts of the parties hereto
shall be deemed to create any relationship between Lessor and
Lessee other than the relationship of landlord and tenant.

EXHIBIT “A”
ALTAMONTE MALL

Construction Exhibit For Shell & Allowance Lease In A
Two Story Structure ( Upper & Lower Levels).

Descriptiou of Landlord ( Lessor’s and/or Developer) and
Tenant ( Lessee’s) work as follows:

PART I—LANDLORD’S WORK DONE AT LANDLORD'S
EXPENSE

A. STRUCTURE: The Landlord will provide a multi-
level shell structure constructed in accordance with local
building codes.

1. LOWER LEVEL FLOOR: Slab on grade, hard
troweled finished concrete surface. The Tenant
should pay close attention to “open” floor slab areas
indicated on Landlord’s Blockout Plan of leased

52a

area. These “open” areas were provided by Land-
lord so that Tenant may complete the toilet in-
stallation according to local code requirements. Do-
wels and keyway shall be provided in these “open”
areas by Landlord. (See Page 5 of Exhibit “A”)

UPPER LEVEL FLOOR: Consists of structural
framing system and concrete fill with hard troweled

finished concrete surface. (See Page 5 of Exhibit

. COLUMNS: Both upper and lower levels, unprimed

structural steel shapes.

OVERHEAD STRUCTURE. Cemrain areas of the
upper level and roof structures have been over-
designed to facilitate installation of condensing and
combination roof top units. These areas are in-
dicated in plan view on Landlord’s Blackout Plan.
All Tenant Unit locations subject to Landlord’s final
approval.

ROOF: Shall be insulated built-up roof of a twenty
(20) year bonded type with a .15 U Factor.

- WALLS AND PARTITIONS:

Exterior walls shall be of masonry or such other
matenals selected by Landlord.

Exterior walls of shell construction are exposed
when in Tenant areas.

Interior walls between tenants and/or between ten-
ant and corridor shall be exposed wood or metal
studs or masonry at Landlord's option. Firewalls
shall be provided as required by code.

A minimum 3’-0’ x 7’-0” hollow metal door and
frame with Landlord’s standard hardware shal] be
provided at service/exit corridors at locations desig-
nated by Landlord.

53a

C. FLOORS:. Upper and lower levels, troweled concrete.
See PART I—ITEM A—STRUCTURE.

D. CEILINGS: Upper and lower level areas will be left
exposed to the structural systems overhead.

E. UTILITIES; VENTILATION AND EXHAUST AIR:
If Lessor elects to provide any such utilities, the follow-
ing utilities shall be located approximately 6” within the
demised premises at locations designated by Landlord:

l.

PYF P&P FP

Domestic water

Sprinkler supply line

Sanitary sewer ( below floor for upper level tenants )
Electricity (empty conduit only)

Telephone (empty conduit only)

Fresh air ductwork for ventilation shall be supplied
to lower level tenant spaces to satisfy a maximum
rate equal to o.l. cfm/square foot. Ductwork for
fresh air supply shall be within the tenant space or
within the adjoining service/exit corridors. Location
and method of supplying fresh air will be deter-
mined by Landlord.

Exhaust air ductwork will be available for each
lower level tenant space to satisfy a maximum
exhaust rate of 0.1. cfm/square foot. Ductwork shall
be within the tenant space or within the adjoining
service/exit corridors. Location and method of
exhausting air will be determined by Landlord.

PART I1— TENANT’S WORK DONE AT TENANT'S EX-

EXPENSE

The Tenant’s work shall conform to all applicable

governing codes and shall include, but not be limited to the
following:

S4a

Tenant to construct and equip the demised premises in
accordance with the following, the requirements of the
Tenant Handbook, and complete plans and specifications
approved in writing by the Landlord prior to com-
mencement of said construction as provided for in this
Lease. The Tenant must follow the provisions of the
Landlord’s Tenant Handbook in the submission of prelimi-
nary and complete construction plans to the Landlord
Tenant Handbook will be supplied to Tenant with Land-
lord’s Blockout Plan.

A. STRUCTURE:

1. LOWER LEVEL FLOOR: Should Tenant desire to
locate toilet in areas other than that designated, the
Tenant shail fill in the “open” area and remove
existing concrete and replace with minimum 4”
thick, 3000 psi concrete—23 day—reinforced with
#3 bars #12” c/o each way. Any cutting and
patching of this lower level slab requires written
approval by Landlord before Tenant begins work.

2. UPPER LEVEL FLOOR: System is designed to
support a total allowable live load (including part-
tions) of 95 pounds per square foot. No allowance
shall be made for reductions allowed by code. The
Tenant is required to make all floor penetrations to
facilitate his installations. All upper floor pene-
trations must be clearly shown on Tenant’s plans for
Landlord’s approval. All Floor penetrations shall be
completely filled-in to seal the floor to prevent odors
or liquid from penetrating the floor.

3. OVERHEAD STRUCTURE: Should the over-
designed areas provided by Landlord not satisfy
Tenant’s requirements, structural modifications can
be made at Tenant’s expense, subject to Landlord's
approval. Lower level Tenants are allowed a mis-

55a

cellaneous loading equivalent to 5 pounds per
square foot on the upper level floor system.

4. ROOF: All Tenant required penetrations of the
roofing system shall be held to a minimum. Tenant
shall employ a licensed Roofing Contractor to repair
and complete all penetrations of the roofing system.
Tenant shall provide all openings, reinforcing, curbs,

flashings, etc.

. WALLS AND PARTITIONS:

1. Where masonry does not occur, the Landlord will
provide only the studs (wood or metal) for the
partitions separating one Tenant from another.
Each Tenant must furnish and install 5/8” firerated
gypsumboard, taped, bedded, airtight against the
deck above, on his side of all common dividing
partutions.

2. Walls may or may not coincide with column center-
lines; columns being thicker than the walls will
extend into the Tenant’s areas. All treatments,
finishes, or furring desired by Tenant shall be by
Tenant at Tenant's expense.

3. No deduction in leased area is allowed for columns.

4. Local codes require all demising partitions to be
constructed having a one hour rating. Interior
partitions shall be constructed of non-combustible
materials in accordance with applicable sections of
the code. If non-combustible wood is permitted, al!
material shall bear the Underwriter’s Laboratones
stamp indicating material is Treated And Labied
Combusuble matenal of any nature Wil] Not be
permitted above finished ceilings.

5. The storefront area will be left open between the
Tenant’s common dividing partitions and mall fin-

S6a

ished floor to the under side of the common cornice
soffit. The Tenant shall be responsible for construct-
ing a complete storefront the full width and height
(including corners, if applicable). Swinging doors
not permitted to swing beyond building line. No

C. FLOORS:

l.

Expansion joints are installed as a necessary function
of this structure. These joints do not occur in all
Tenant spaces and those spaces in which they occur
shall be clearly identified. The expansion joint shall
be a complete installation by the Landlord, and it
shall be the Tenant's responsibility to install finish
floor covering material to this joint in a workmanlike
manner.

Sanitary cleanouts are installed as a necessary func-
tion of the sanitary sewer system. These cleanouts
do not occur in all Tenant spaces and those spaces in
which they occur shall be clearly identified. The
cleanouts shall be a complete installation by the
Landlord, and it shall be the Tenant’s responsibility
to imstall finish floor covering material to these
cleanouts in a workmanlike manner.

D. CEILINGS:

2.

All interior finishes beyond the exposed structural
systems will be by Tenant at Tenant’s expense.

Certain pipes, conduits, ducts, and utilities are pass-
ing through tenant spaces and are supported by the
overhead structure. These items service other Ten-
ants and building areas and are engineered to

guarantee the Tenant a minimum ceiling height of
10’-0".

57a

3. In addition to the certain pipes, conduits, ducts, etc.
covered under item 2 above, lower level tenants
agree and recognize that the upper level tenants will
have certain pipes, conduits or other related items
located in the ceiling space of the lower ievel tenants
leased space. Lower level tenants further agree and
recognize that upper level tenants have the nght to
install the above mentioned pipes, conduits or other
related items from within the lower level tenants
space.

The lower level tenant shall cooperate with the
upper level tenant for the installation of these items.
In the event the lower level tenant’s space is “near-
ing completion”, “completed” and/or “opened for
business”, the upper level tenant shall simplify his
installation problems by “initial design”, “re-
design” or install his items at the hours and times as
he and the lower level tenant can agree on.

In the event the tenants cannot agree to a reasonable
solution, Landlord shall arbitrate and the Landlord’s
judgment shall be final.

4. All pipes, conduits ane other related items that
upper level tenants install in the ceiling space of the
lower level tenants shall be run tight to the structural
steel members in order to provide the lower level
tenant maximum working space for the installation
of his pipes, conduits, ducts, ceilings and/or other
related items.

Exception to items run tight to the structural steel
would be pipes or lines required to slope by code or
function. In this event, upper level tenants shall,
where possible, confine these lines to follow the line
of the lower level tenants dividing partitions.

58a

E. UTILITIES,-FRESH AIR, EXHAUST AIR:

l.

Connections to the following utilities, including
meters, equipment, hook-up and extensions to make
a complete, approved and operating system:

a. Domestic water

b. Sprinkler supply line
c. Sanitary sewer

d. Electric

e. Telephone

Lower level tenants shzil connect to the fresh air
ductwork at location provided by Landlord. Re-
quired external static pressure of Tenant’s aiur-
conditioning unit must be increased a minimum of
0.2” w.g. to facilitate utilization of the fresh air
ductwork.

Lower level tenants shall connect to the exhaust
system ductwork at location provided by Landlord.
Required external static pressure of tenants exhaust
fan must be increased a minimum of 0.25” w.g. to
facilitate utilization of exhaust ductwork.

Food service operations located on lower level can
connect only toilet room exhaust systems to the
exhaust system provided. However, exhaust and
make-up air systems from kitchen, preparation, and
other special exhaust systems shall be extended
vertically thru the roof at a location designated by
Landlord.

. Beauty salons, pet shops or any other areas on lower

level which require special exhaust and make-up air
systems shall be responsible for providing all neces-
sary equipment and matenals to accommodate these
systems. These special exhaust systems will not be

59a

permitted to connect to exhaust ductwork provided
by Landlord but must be extended thru roof. Sys-
tem design subject to approval of Landlord.

6. Penetrating exterior walls for mechanical equipment
will not be permitted.

7. Upper level tenants shall satisfy fresh air and ex-
haust requirements by carrying their systems thru
the roof and terminating them with appropriate
devices to satisfy design requirements. Roof pene-
trations shall be kept to a minimum.

8. Lower level tenants must run sanitary sewer vents to
the vent stub provided by Landlord within leased
space. Upper level tenants will extend vent(s) from
their plumbing and thru roof as required.

F. HEATING, VENTILATING AND
AIR-CONDITIONING:

1. Tenant shall design the heating, ventilating and air-
conditioning system in accordance with the follow-
ing minimum design requirements:

a. Cooling calculations shall be based on maintain-
ing 78°F dry bulb and 50% relative humidity
inside with Ashrae design conditions (24% col-
umn) outside. Internal loads shall be based on
actual light loads, equipment loads (if any) and
minimum occupancy of 50 square foot per person
based on aggregate leased area or actual seating
capacity, whichever is larger. Outside air load
shall be based on o.l. cfm/square foot or total
exhaust air, whichever is larger.

b. Heating calculations shall be based on maintain-
ing 70°F dry bulb inside with Ashrae design
condition (99% column ) outside.

60a

2. Air Distribution System:

a. The Tenant shall provide a complete air-
conditioning system in tenant’s space. Two types
of systems shall be furnished depending on the
tenant’s location in the center. One system will
consist of a fan and coil air handling unit com-
plete with matching condensing unit, piping,
automatic temperature controls, supply, return
and outside air duct-work with required grilles,
registers, diffusers, and fire dampers when re-
quired. The other type of system used shall be a
roof mounted package unit complete with
automatic temperature controls, supply, return
and outside air ductwork with required grilles,
registers, diffusers and fire dampers when re-
quired. The type of system to be utilized sk2ll be
as follows:

1. Lower Level—Fan—Coil
2. Upper Level—Fan—Coil or roof top package

b. Fan and coil units shall be located in an acces-
sible manner in the tenant’s space. Units shall be
suspended from the structural steel in ceiling
space within practical physical limits. Larger
units shall be floor mounted when suspension is
impractical or when weight dictates.

c. Roof mounted equipment (package and con-
densing units) shall be located over extra steel
provided by Landlord (unless otherwise desig-
nated ).

d. Roof mounted equipment (package and con-
densing units) shall be located on prefabricated
unit curbs or equipment supports. Mounting
systems requiring roof penetrations or wood run-
ners will not be permitted.

6la

e. Show windows shall be air-conditioned or venti-
lated.

G. PLUMBING: All plumbing and fixtures ihcluding a

H.

minimum six (6) gallon water heater for toilet rooms.

TOILET FACILITIES: Complete toilet rooms sepa-
rate for each sex shall be provided, equipped with a
floor drain and all required fixtures, partitions, floor
and wall finishes, ventilation, etc. In the event that the
occupancy requires only one toilet room, rough-in pro-
visions shall be made for the second toilet room.

SPRINKLER SYSTEM: Complete sprinkler system
including all branch lines, heads, etc. System subject to
Landlord’s, Landlord’s Insurance Company and State
Rating Bureau approval.

ELECTRIC EQUIPMENT. All light fixtures, meters,
wiring, service, lamps and equipment including in-
stallation, hook-up and support. Lighting fixtures with
exposed fluorescent tubes not permitted in sales areas
or areas accessible to the public.

. TELEPHONE EQUIPMENT: All conduits for tele-

phone wires. Tenants shall make all necessary arrange-
ments with telephone company for service.

. SPECIAL EQUIPMENT: Alarm systems or other

protective devices; public address system; fire ex-
tinguishers; conveyors; elevators; escalators; dumb wait-
ers; umeclocks; delivery door buzzers; storm and screen
doors; storm enclosures; dry chemical fire protection
systems; pilot light for heating, ventilating and air-
conditioning equipment, etc.

M. ROOF OPENINGS: All roof openings, reinforcing,

curbs, flashing, etc. for heating, ventilating, air-
conditioning, plumbing and electrical equipment.

N. SIGNS: Shall be in accordance with Landlord’s sign

restrictions.

62a

O. FIXTURES: All store fixtures, cases, paneling, corn-
ices, etc..
P. Tenant agrees that only Union Labor affiliated with the

A.F.L./C.LO. Building Trades will be used in perform-
ance of Tenant’s work.

Q. Tenant and/or his contractor and/or subcontractors to
obtain and pay for all permits and comply with all
building codes, ordinances, O.S.H.A. regulations, regu-
lations and requirements of Fire Insurance Rating
Bureau. Landlord’s approval of plans does not release
Tenant from this obligation.

R. Tenant agrees to require his contractor and/or subcon-
tractors to furnish Landlord evidence of adequate insur-
ance cc erage prior to Tenant’s contractors performing
any work in Tenant’s premises, and Tenant agrees to
indemnify and hold harmiess Landlord from and
against any claims, actions or damages resulting from
acts or neglects of Tenant, his agents, employees,
contractors or subcontractors in the performance of
Tenant’s work.

S. Tenant and/or his contractors and/or subcontractors
are limited to performing their work including any
Office or storage for construction purposes within the
demised premises only. Tenant and/or his contractors
and/or subcontractors shall each be responsible for
daily removal from the project of all trash, rubbish and
surplus materials resulting from construction, fixtunng
and merchandising of the demised premises. The
Tenant is cautioned against having trash accumulated
within his-space. Should this develope, Landlord's
Project Manager will remove Tenants, and Tenant's
contractors trash and the charge will be 1.5 times
Landlord’s cost.

63a

T. Tenant and/or his contractors and/or subcontractors
are responsible for temporary utiliues for their work
including payment of utility charges.

Landlord has made provision for temporary electric

within the Mall, Tenant and/or his contractors may

avail themselves of this temporary service under the
following conditions:

1. That service is available only dumng Landlord's
working hours.

2. That termination of this service is at Landlord’s sole
election.

3. Service charge is $100.00 per month.

4. One store—One hook-up.

5. If Landlord does not elect to provide service from
said temporary, Tenant must make his own arrange-
ment for same.

U. Upon approval by Landlord of Tenant’s working plans,
Tenant shall cause construction to promptly commence
and will use every effort to cause the demised premises
to be completed in time for the Grand Opening date of
the project unless otherwise dictated by lease.

V. Landlord will require Tenant to erect temporary barn-
cades to close off the demised premises from the mall
unul Tenant’s heaung and air-conditioning system is
Operative; or, to screen Tenant’s premises from public
view during construction if the mall is open to the
public. Said temporary barncade or screen to be
constructed and painted in accordance with Landlord’s
plans that are in the possession of the Resident Project
Manager.

W.The Tenant and/or his contractor must present to the
Landlord’s Project Manager at the project one (1)
complete set of working drawings and specifications
approved by the Landlord and applicable governing
authonties before permission will be given to start
construction in the demised premises.

PART I—Al (Cont'd)

Floor slabs for this project will be placed on a
continuing and sequenual basis as scheduled with a//
slab work for the entire project being completed well
in advance of the center opening. Wherever possi-
ble, forty-five (45) days written notice will be given
to each lower level tenant by Landlord prior to
placing the concrete slab to permit installation of
electrical floor boxes, conduits, piping and other
related items. These items must be set in place
within this forty-five (45) day period.

If the lower level Tenant is unable to complete this
installation within this period, the slab will be placed
regardless. The Tenant, at his own expense, will
then be required to cut and channel the slab as
necessary, instal] his electrical floor boxes, conduits,
piping and other related items and repair the slab to
accept his floor covering material.

PART I—A2 (Cont'd)

This structural floor of composite design will be
placed pnor to Tenant starting construction.
Depressions in the slab for carpeting, terrazzo, etc.
can not be permitted. Electncal floor boxes must be
installed by core drilling through the concrete slab to
the lower level tenant’s ceiling space. No piping,
conduits and other related items will be permitted to
be placed in the concrete slab or on the steel
decking.

Conduit for electrical floor boxes, piping and other
related items must be run tight to the structural in
the lower level tenant’s ceiling space: refer to Part II-
D Ceilings of the lease exhibit.

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JOINT EXHIBIT 2

LEASE
BY AND BETWEEN

EASTLAKE SQUARE ASSOCIATES

and
H. J. WILSON CO., INC.

TABLE OF CONTENTS

ARTICLE I PREMISES—OPERATING AGREEMENT

ARTICLE II TERM

ARTICLE Ill RENT

ARTICLE IV TAXES AND OTHER CHARGES

ARTICLE V ASSIGNMENT AND SUBLETTING

ARTICLE VI USE OF DEMISED PREMISES AND OPER-
ATING COVENANTS

ARTICLE VII LEASEHOLD FINANCING BY TENANT

ARTICLE VIII MAINTENANCE AND REPAIRS—
ALTERATIONS

ARTICLE IX INDEMNITY AND PUBLIC LIABILITY IN-
SURANCE

ARTICLE X OTHER INSURANCE

ARTICLE XI DAMAGE AND DESTRUCTION

ARTICLE XI CONDEMNATION

ARTICLE XIll COMPLIANCE

ARTICLE XIV MECHANICS’ LIENS

ARTICLE XV LANDLORD'S ACCESS TO
PREMISES

ARTICLE XVI EASEMENTS

ARTICLE XVII DEFAULT BY TENANT

ARTICLE XVIII MISCELLANEOUS

ARTICLE XIX LANDLORD'S ESTATE

ARTICLE XX SUBORDINATION OF LEASEHOLD

ARTICLE XXI COMMENCEMENT OF TENANT'S CON-

STRUCTION, OPENING AND RENT
COMMENCEMENT

PAGE

ARTICLE XXII CONSTRUCTION OF TENANT'S _IM-

PROVEMENTS 4)

ARTICLE XXIll a CLAUSE AND REPRESENTA- .
4

ARTICLE XXIV MERCHANTS’ ASSOCIATION \ 42

ARTICLE XXV__ SIGNS 43

ARTICLE XXVI SURRENDER OF DEMISED PREMISES 43

ARTICLE XXVII_ LANDLORD'S WAIVER OF LIEN RIGHTS 44

EXHIBITS

EXHIBIT “A” LEGAL DESCRIPTION OF “DEMISED PREMISES”
EXHIBIT “B” SITE PLAN

EXHIBIT “C” ae DESCRIPTION OF “SHOPPING CENTER
EXHIBIT “D” LEGAL DESCRIPTION OF “DEVELOPER SITE”

EXHIBIT “E” BUILDING IMPROVEMENTS BY TENANT ON
DEMISED PREMISES AND DEVELOPER SITE

EXHIBIT “F” TITLE EXCEPTIONS

LEASE

THIS LEASE, made as of the 7th day of August, 1979, by
and between EASTLAKE SQUARE ASSOCIATES, a Florida
General Partnership composed of Eastlake Square, Inc., a
Florida corporation, having its principal office at 7620 Market
Street, Youngstown, Ohio 44512, and JCP Realty, Inc., a
Delaware corporation, having its principal office at 1301 Ave-
nue of the Americas, New York, New York 10019 (“Land-
lord”), and H. J. WILSON CO., INC., a Louisiana corporation,
having its principal office at 5825 Flonda Boulevard, Baton
Rouge, Louisiana 70896 (“Tenant’’);

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ARTICLE Ill
RENT

Section 1. Commencing with the date as provided in
Article XXI, Tenant shall pay to Landlord minimum rent
(“Minimum Rent”) per annum in the amount of Fifty Thou-
sand and 00/100 Dollars ($50,000.00), payable in equal
monthly installments of Four Thousand One Hundred Sixty-six
and 67/100 Dollars ($4,166.67) in advance on or before the
first day of each calendar month after such date. If Minimum
Rent shall be payable for a fraction of a calendar month, it
shall be prorated for that month on a daily basis.

Section 2. In addition to Minimum Rent, Tenant shall pay
to Landlord, as percentage rent (“Percentage Rent”) for each
Lease Year (as defined in Section 3 of this Article III) a sum
equal to one per cent (1%) of the amount by which Adjusted
Gross Sales (as defined in Section 4 of this Article III) in such
Lease Year shall have exceeded the product of One Hundred
and 00/100 Dollars ($100.00) times the Floor Area (as
defined in Section 3 of this Article III) of the structure to be
constructed by Tenant hereunder (“Percentage Rent Base”).
In the event any Lease Year is less than a full twelve (12)
month period (“Partial Lease Year”), Tenant shall pay Per-
centage Rent for such period, computed as above provided,
except that the Percentage Rent Base shall be reduced to a
figure obtained by multiplying the Percentage Rent Base by a
fraction, the numerator of which shall be the number of days
contained in such Partial Lease Year and the denominator of
which shall be three hundred sixty-five (365). In the event that
the Improvements shall be completely or substantially closed to
business with the public for any period of time for any reason
other than regularly scheduled daily or weekly closing periods,
Percentage Rent Base for the Lease Year in which such closing
shall have taken place shall be reduced or abated in the same
manner as for a Partial Lease Year.

68a

Section 4. “Adjusted Gross Sales”, as such term is used
herein, shall mean the total amount of gross sales, income,
receipts, revenues and charges of, in connection with and for all
merchandise, services or other operations or business sold or
rendered at, in, on, or from the Demised Premises and Im-
provements by Tenant or by any subtenants, licensees or
concessionaires (whether or not such entities are permitted
under the terms of this Lease), whether for cash or on a charge.
credit or ume basis, without reserve or deduction for inability or
failure to collect, and including, but not limited to, sales and
services (a) where orders originate and/or are accepted by
Tenant on the Demised Premises but delivery or performance
thereof is made from or at any place other than the Demised
Premises; (b) pursuant to mail, telegraph, telephone or other
similar orders received or filled at or in the Demised Premises;
(c) by means of mechanical and other vending machines in the
Demised Premises, except those used primarily by employees;
(d) which Tenant in the normal and customary course of
business would credit or attribute to its business upon the
Demised Premises or any part or parts thereof. All of the
foregoing shall be adjusted by the deduction, if originally
included in gross sales, or exclusion, as the case may be, from
gross sales of the following, to the extent that separate records
are maintained for such deductions or exclusions: (a) amounts
of refunds and allowances made on merchandise claimed to be
defective or unsatisfactory, provided that if such refunds or
allowances are in the form of credits to customers, such credits
shall be included in gross sales when used; (b) exchanges of
merchandise between stores of Tenant where such exchanges
are made solely for the operation of Tenant's business and not
for the purpose of consummating a sale which has been made
at, in, on, or from the Demised Premises and/or for the purpose
of depnving Landlord of the benefit of such sale which
otherwise would have been made at, in, on, or from the

69a

Demised Premises; (c) returns to shippers and manufacturers
for credit; (d) sales of trade fixtures or store operating equip-
ment after use thereof in the regular conduct of Tenant's
business in the Demised Premises; (¢) sums and credits re-
ceived in settlement of claims for loss or damage to merchan-
dise; (f) amounts of any excise or sales tax levied upon retail
sales and payable over to the appropriate governmenta! author-
ity provided that specific record is made at the ume of each sale
of the amount of tax, and the amount thereof is expressly
charged to the customer, (g) bad debts, including credit card
charge-backs not later credited and uncollected checks not later
collected, not in excess of one per cent (1%) of Tenant's total
sales; (h) interest received on customer charge accounts; ind
(i) actual credit card company service charges, but not in excess
of the greater of three per cent (3%) or one-half (1/2) of the
actual credit card company service charge.

ARTICLE IV
TAXES AND OTHER CHARGES

Section 1. Tenant shall pay and discharge punctually as
and when the same shall become due and payable, all taxes

and assessments, water rents, sewer rents and charges, duties,
impositions, license and permit fees, charges for public utiliues
of any kind, payments and other charges of every kind and
mature whatsoever, ordinary and extraordinary, foreseen or
unforeseen, general or special, in said categories, together with
any interest or penalties lawfully imposed upon the late pay-
ment thereof, which, pursuant to present or future law or
otherwise, during the term hereby granted shall have been or
shall be levied, charged, assessed, imposed upon or grow or
become due and payable out of or for or have become a lien on
the Demised Premises or any part thereof, the Improvements
and the property therein and the appurtenances thereto, the

70a

rents received by Landlord from the Demised Premises or any
use of the Demised Premises and such franchises as may be
appurtenant to the use and occupation of the Demised Prem-
ises. All the items referred to in this Section | are sometimes
and hereinafter called “Impositions”.

Section 5. Tenant's Contribution to Impositions for Im-
provements on the Demised Premises.

B. If Tenant's Improvements are not separately assessed
or if the Impositions applicable thereto cannot be determined
from an examination of the tax assessor’s records, Landlord
shall pay all Impositions to the taxing authority, and Tenant
shall reumburse Landlord for its allocable portion determined
pursuant to this Section, of the Impositions for any tax year or
poruon thereof during the period in which Tenant is obligated
for the payment of Impositions applicable to its Improvements,
within twenty (20) days after Tenant shall have received copies
of the tax bills from Landlord with an itemized statement of the
allocation to Tenant of Impositions applicable to Tenant's
Improvements.

Tenant shall use all reasonable efforts to have Tenant's
Improvements separately assessed. In the event that Tenant’s
Improvements are not separately assessed, but are assessed as
part of the Developer Site and the Impositions applicable to
Tenant's Improvements cannot be determined from an exam-
inanon of the tax assessor's records, to both parties’ satisfaction
as set forth above, the Impositions applicable to Tenant's
Improvements shall mean the Impositions assessed with respect
to any tax year ( during the penod in which Tenant is obligated
to pay Impositions) against the buildings and improvements
located on the Developer Site multiplied by a fraction, the
numerator of which shall be the number of square feet of Floor

Tila

Area located within the Demised Premises and the denomina-
tor of which shall be the average number of square feet of Floor
Area during such calendar year in all of the buildings and
improvements so assessed which are located on the Developer
Site. The allocation formula provided for herein shall not take
effect until the first year in which Tenant’s Improvements are
fully assessed; prior to such time, Tenant shall reimburse
Landlord for Impositions applicable to its Improvements as
then partially completed, if any.

ARTICLE V
ASSIGNMENT AND SUBLETTING

Section 1. Except as provided in Section 2 and Section 3 of
this Article V, Tenant shall not, voluntarily, involuntarily or by
operation of law, sell, mortgage, pledge or in any manner
transfer or assign this Lease, in whole or in part, or sublet the
whole or any part of the Demised Premises, or permit any other
person to occupy same without the consent of Landlord,
references elsewhere herein to assignees, subtenants, licensees
or other persons notwithstanding, and any of the foregoing
shall be of no force or effect. In the event that Tenant requests
permission to assign this Lease, sublet the whole or any part of
the Demised Premises or to do anything referred to in the
immediately preceding sentence, then Landlord may, in its sole
and absolute discretion, e!ect to consent or withhold consent.
Subject to Tenant’s operating covenant, Tenant shall have the
right to sublease any portion of the Demised Premises or to
license concessions therein, not to exceed 15,000 square feet,
without Landlord’s consent. Except as provided in Section 2 of
this Article V, any assignment or subletting, even with consent
of Landlord, shall not relieve Tenant from liability for payment
of rent and other sums herein provided or from the obligation
to keep and be bound by all the terms, conditions and

‘

72a

covenants of this Lease. The acceptance of rent from any other
person shall not be deemed to be a waiver of any of the
provisions of this Lease, a consent to the assignment of this
Lease or a subletting of the Demised Premises. The prohibi-
tions and other provisions of this Section | of this Article V shall
also be applicable with respect to a lease of the Improvements
or any part thereof.

Section 2. Subsequent to the period of fifteen (15) years
after the Wilson store opens for business in the shopping center
(“Initial Operating Period”), Tenant may assign this Lease or
sublet the whole of the Demised Premises to any entity
(“Permissible Entity”) which shall, at the time of the assign-
ment or sublease, meet both of the following requirements:

(a) have a net worth in excess of Twenty Million Dollars
($20,000,000.00 ); and

(b) operate eight (8) or more Department Stores (as
herein defined) in the continental United States. As
used in this subparagraph (b), the term “Department
Store” shall mean a retail store containing a number
of departments for the sale of hard and soft goods and
miscellaneous merchandise and such services as are
customarily sold and performed by department stores
from time to time, including a general line of apparel
and housewares, whether or not a full-line of each
category is carried, or a catalog store similar to the
type to be operated under this Lease by H. J. Wilson
Co., Inc.

Tenant shall have the right, without the necessity of obtaining
Landlord’s consent, to assign this Lease or sublet the Premises
to any wholly owned or affiliated or parent corporation, but in
the case of an assignment, the original Tenant shall continue as
guarantor of Tenant’s obligations hereunder. If there shall be
an assignment of this Lease or subletting of the Demised

73a

Premises to any wholly owned or affiliated corporation and
thereafter as a result of one or more assignments, sales or
transfers of the shares of stock of such previously wholly owned
or affiliated corporation, H. J. Wilson Co., Inc. does not
thereafter own in excess of fifty per cent (50%) of both the
voting shares and more than twenty-five per cent (25%) of all
shares, the assignments, sales or transfers of those shares which
were in excess of the number required to retain controlling
interest by H. J. Wilson Co., Inc. shall be deemed to be void
and of no force and effect. Notwithstanding the provisions of
the immediately preceding sentence, more than fifty per cent
(50%) of the voting shares and more than twenty-five per cent
(25%) of all shares of stock of any previously wholly owned or
affiliated corporation may be owned by either of the following:

(a) a Permissible Entity; or

(b) an entity which shall acquire all of the stock of every
corporation operating all of the retail stores of H. J.
Wilson Co., Inc., its subsidiaries and affiliates in the
State of Florida, but in no event less than four (4)
such stores.

In addition to the foregoing, H. J. Wilson Co., Inc. shall have
the right to assign this Lease in the event of a merger or a
consolidation with another corporation, or in the event of a sale
or transfer of all or substantially all of said company’s assets
without the necessity of obtaining Landlord’s prior consent;
provided the acquiring or surviving corporation has a net worth
at least equal to the greater of (i) Tenant’s net worth as of the
date of execution of this Lease, or (ii) Tenant’s net worth as of
the date immediately prior to such assignment. Tenant agrees
that it shall notify Landlord of its intention so to do and shall
deliver a satisfactory assumption of Tenant’s liabilities by such
assignee, whereupon Tenant’s liability hereunder (except for
acts in default occurring prior to such assumption) shall
terminate. The prohibitions and limitations upon assignment

74a

and/or subletting of this Lease and the operating covenant of
Tenant under Article VI, Section 2, shall not apply to any
person, firm or corporation who has succeeded to the interest of
Tenant under this Lease by foreclosure or deed in lieu of
foreclosure (dation en paiement) or to any assignee of this
Lease in connection with an assignment and leaseback or
sublease to H. J. Wilson Co., Inc. or an affiliate or subsidiary in
the event Tenant’s possessory interest shall terminate by reason
of a default under the terms of such leaseback or sublease or to
the assignees of such person, firm or corporation, except the
entire building must be used only for a single store engaged in
retail merchandising to the general public.

Section 3. Anything in this Lease to the contrary norwith-
standing, Tenant may assign or transfer its interest in this Lease
and/or the Improvements, provided it shall simultaneously
become vested with a subleasehold estate or similar possessory
interest in the Demised Premises by virtue of a sublease made
by the assignee, or if, in order to secure an indebtedness,
Tenant shall mortgage its leasehold estate and retain a posses-
sory interest in the Demised Premises, in which event the
assignee of this Lease or the trustee, beneficiary or mortgagee
under any such deed of trust or mortgage shall not be deemed
to have assumed or be bound by any of Tenant’s obligations
hereunder for so long as Tenant shall retain a possessory
interest and all obligations shall continue to remain those of
Tenant alone. So long as Tenant retains such possessory
interest, performance by Tenant of any act required to be
performed under this Lease by it or fulfillment of any condition
of this Lease by Tenant shall be deemed the performance of
such act or the fulfillment of such condition by such assignee,
trustee, beneficiary or mortgagee, as the case may be, and shall
be acceptable to Landlord with the same force and effect as if
performed or fulfilled by such assignee, trustee, beneficiary or
mortgagee, as the case may be. Anything in this Lease to the
contrary notwithstanding, if any mortgage of the leasehold or

75a

the Improvements is foreclosed or deed delivered in lieu of
foreclosure, or if Tenant, having entered into an assi,nment
and subleaseback involving the Demised Premises shall be
deprived of possession thereof by reason of its failure to comply
with the terms of such subleaseback or the leasehold mortgage,
anyone who has acquired or shall thereafter acquire title to the
Demised Premises or the Improvements shall hold the same
free of any requirement of this Lease that a “Wilson's” catalog
showroom department store be operated, but Tenant shall not,
in such a case, be deemed released from its obligations under
Article VI. Notwithstanding any assignment, nothing contained
in this Section 3 or Section 2 (except in the case of a merger or
consolidation ) shall be deemed to release H. J. Wilson Co., Inc.
from liability for the obligations of Tenant. If any mortgage of
the leasehold or Improvements is foreclosed or deed delivered
in lieu of foreclosure, or if Tenant, having entered into an
assignment and subleaseback involving the Demised Premises
shall be deprived of possession thereof by reason of its failure to
comply with the terms of such leaseback or the leasehold
mortgage, any person, firm or corporation succeeding to the
possessory interest of Tenant in the Demised Premises shall not
be obligated to undertake or perform any duties, obligations or
responsibilities of any kind or nature imposed upon Tenant
which accrued prior to the date such person, firm or corporauon
succeeds to such possessory interest, and shall be liable for such
duties, obligations and responsibilities of Tenant only so long as
such person, firm or corporation retains a possessory interest in
the Demised Premises.

76a

ARTICLE VI

USE OF DEMISED PREMISES AND
OPERATING COVENANTS

Section 1. Landlord agrees with Tenant that until Tenant
is in breach of any of the terms and conditions imposed upon
Tenant under this Lease, subject to the provisions of the
Operating Agreement, Landlord will comply with any obliga-
uon imposed upon Landlord under the provisions of Section
16.1 of the Operating Agreement.

Section 2. Provided, (i) Landlord is not in default of its
operating covenant under Section 16.1 of the Operating Agree-
ment, and (uj) any two (2) of J. C. Penney Company, Inc.,
Montgomery Ward Development Corporation and Belk-
Lindsey of Tampa, Florida, are operating department stores in
their premises under their respective names, Tenant agrees, for
all of the Initial Operating Period, as that term is defined in
Article V, Section 2, to operate a typical Wilson’s store, having
in excess of 50,000 square feet of Floor Area, under the trade
name “Wilson's”, or such other trade name as is employed by
the majority of the catalog showroom department stores oper-
ated by H. J. Wilson Co., Inc. and its subsidiary or affiliated
corporations in the State of Florida. During the balance of the
term, Tenant shall operate or cause to be operated (to the
extent permitted by the provisions of Article V) a department
store (but mot under any specific name) in the Demised
Premises containing a customer mall entrance on both levels,
vertical transportation within the Demised Premises and not
less than 3,000 square feet of retail sales area on the upper
level.

Notwithstanding the foregoing, a department store need
not be operated durng such time as either of the following shail
occur subsequent to the Initial Operating Penrod:

(a) less than two (2) department stores shall be operated
on the respective premises now operated by Mont-

77a

gomery Ward Development Corporation, J. C.
Penney Company, Inc. and Belk-Lindsey Company of
Tampa, Florida, for any reason other than “Force
Majeure”; or

(b) less than fifty per cent (50%) of the gross leasable
area of the mall shops shall be open for business to the
public for a period in excess of six (6) months after
specific notice from Tenant to Landlord.

At no time during the term hereof may the Demised Premises
be used for other than retail and related purposes.

Section 3. From and after the day on which Tenant shall
open for business and throughout the enure balance of the term
hereof, Tenant shall, in good faith, continuously, actively and
diligently maintain, conduct and operate all of the Improve-
ments on two (2) levels, in a high grade and reputable manner,
maintaining in the Demised Premises a full staff of employees,
and equipment for the protection of the person and property of
the general public, and shall expend all necessary, proper and
reasonable efforts consistent with good business practice to that
end. The words “continuously”, “actively” and “diligently”, as
used herein, shall] mean uninterruptedly at least from 10:00
A.M. to 9:30 P.M. on Monday through Saturday, provided that
at least two (2) other department stores in the shopping center
and fifty per cent (50%) of the mall tenants on the Developer
Site are opened for business; and during such hours on Sunday
as the aforesaid department stores and mall tenants are oper-
ating. Notwithstanding the foregoing, Tenant shall not be
required to operate on any Monday following a Sunday
holiday. Any temporary cessation of such operation (other
than as may be contemplated or permitted under the provisions
of this Lease entitled “Condemnation” and “Damage and
Destruction”, and in Section 13 of Article XVIII defining
“Force Majeure”), for amy cause incident to the conduct of a
retail catalog department store business or the temporary
cessation of such operation because of remodeling of or the

78a

making of Improvements to the Wilson store, at any ume shall
not be considered as a default under this Article, so long as
Tenant is using due diligence to resume operation.
Section 4. Tenant shall conduct no auction, fire or
bankruptcy sales or similar practice on the Demised Premises
and shall display no merchandise outside the Improvements or
the Demised Premises nor in any way obstruct the malls or
sidewalks adjacent thereto and shall store all trash and refuse in
appropniate containers within the Improvements and attend to
regular disposal thereof; use or permit to be used any adverts-
ing medium that might constitute a nuisance, such as
loudspeakers, sound amplifiers, phonographs or radios which
can be heard outside of the Demised Premises. Tenant shall
not burn any trash or rubbish in or about the Demised Premises
or anywhere else within the confines of the shopping center
complex. Tenant shall not operate a garbage grinder without
Landlord’s prior consent, but may operate a trash compactor.

ARTICLE VIII
MAINTENANCE AND REPAIRS—ALTERATIONS

Section 1. Tenant shall put, keep and maintain in good
order and first-class condition the Demised Premises and the
Improvements, including, without limitation, the exterior and
intenor portions of all doors and windows, electrical, plumbing,
heating and air conditioning equipment and facilities, and signs
of Tenant, wherever located, permitted by this Lease. In
addiuon, Tenant shall prompty make all repairs, intenor and
extenor, structural and nonstructural, foreseen and unforeseen,
latent and patent, ordinary and extraordinary, howsoever the
necessity may occur, and of every kind and nature. All repairs
shall be equal to the onginal in class and quality. Tenant shall
keep the Demised Premises and the Improvements in a clean,
Sanitary and safe condition, free of dirt, rubbish, snow and ice

79a

and obstructions and in accordance with the requirements of all
public authorities having jurisdiction thereof. “Repairs” shall
include replacements, whenever necessary. Landlord shall not
be required to make any repair, maintain anything or provide
any facility or service, except as specifically provided herein.

Section 2. Tenant shall not make any exterior or struc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1164%3A08. Public record. Not legal advice.