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CAUSE NO. 302710
COLONY LAKES CENTER, LTD. INTHE DISTRICT COURT OF
vs. FORT BEND COUNTY, TEXAS
MJ STAR
TEA INC and CHANGXIAN
JIANG JUDICIAL DISTRICT
FIRST AMENDED PETITION
TO TH ABLE JUDGE OF SAID COURT:
Plaintiff, Colony Lake Center, Ltd. Landlord), files this First Amended Petition
against Defendant MJ StarTeaInc Tenan and Changxian Jiang ( Guarantor and would
respectfully show the Court the following:
47S EMENT AND DISCOVERY CONTROL PLAN
Pursuant to Tex. R. Civ. P. 47, Plaintiff is seeking to recover monetary relief
pursuant to a commercial lease agreement. The damages are within the jurisdictional
limits of this Court. Pursuant to Tex. Civ 190.3, this suit is governed by Discovery Control
Plan Level 2.
PARTIES
Plaintiff, Colony Lakes Center, Ltd., is a Texas limited partner , which may be
contacted through its counsel, Rothfelder & Falick, L.L.P.
Defendant, Star Tea Inc, is a domestic corporation which has been served
gh its registered agent, Changxian Jiang, at 1239 S Maple Drive, Katy, Texas 77493
Defendant, Changxian Jiang, is an individual, who has already made an
appearance in this matter.
Plaintiff's First Amended Petition Page
I. JURISDICTIONAND
VENUE
5. The Court has jurisdiction over Defendants because Tenant entered into and
breached the Shopping Center Lease at issue in this case in Fort Bend County, Texas, and
Guarantor entered into a Guaranty of the Shopping Center Lease at issue in this case in Fort
Bend County, Texas. The Court has jurisdiction over the subject matter because the amount in
controversy is within the Court’s jurisdictional limits.
6 Venue is proper in Fort Bend County, Texas, because that is where the real
property that is the subject of this landlord-tenant dispute is located, and where the causes of
action accrued.
IV. FACTUAL BACKGROUND
7 Landlord and Tenant entered into and executed a Shopping Center Lease (the
“Lease”), providing for Landlord’s leasing to Tenant approximately 1,200 square feet in the
shopping center located at 6250 Highway 6 South, Suite 36, Missouri City, Texas 77459 (the
“Demised Premises”).! The Lease commenced on December 1, 2016, for a term of eighty-four
months.
8 Simultaneous with Tenant’s execution of the Lease, Guarantor entered into a
Guaranty of the Lease.” Pursuant to the Guaranty, Guarantor agreed to jointly and severally,
unconditionally and absolutely guarantee to the Landlord the full, prompt and complete payment
by the Tenant of the rent and all other sums which may be payable by the Tenant under the Lease
and the full, prompt and complete performance by the Tenant of all and singular the terms,
covenants and provisions in the Lease required to be performed by the Tenant without regard to
any forbearance, delay, neglect or failure on the part of Landlord in enforcing same.
1 Exhibit 1 the Lease.
? Exhibit 2 — Guaranty of Lease.
Plaintiff's First Amended Petition Page 2
9 Pursuant to Article III of the Lease, Tenant is required to pay accrued Minimum
Guaranteed Rental and Additional Rental on the first day of each month during the Term of the
Lease. Article III also requires Tenant to pay Tenant’s Pro Rata Share of all Taxes for each
calendar year of the Term. Pursuant to Article VIII of the Lease, Tenant is required to pay
Tenant’s Pro Rata Share of Common Area Expenses on the first day of each month during the
Term of the Lease. Section 19.6 of the Lease also requires Tenant to pay the costs to repair, alter,
remodel or otherwise put the Demised Premises into a condition acceptable to a new tenant
following Tenant’s default.
10. Section 19.1 of the Lease provides that Events of Default shall include the
following:
(a) any failure of Tenant to pay when due any rental or other charges due
hereunder, or
(b) any failure to do business, as defined in Section 7.2(b) hereof, or
(d) Tenant shall abandon, desert or vacate the Demised Premises . . ..
11. Tenant failed to pay the Rent, Common Area Maintenance Charge, and Taxes
owed to Landlord beginning on October 1, 2022. Without notice to Landlord, Tenant vacated,
and ceased doing business in, the Demised Premises in December of 2022.
12. Pursuant to Article XIX of the Lease, Landlord sent written notice of the default
to Tenant and Guarantor on February 2, 2023.3 The notice stated that Tenant was in default and
demanded payment of the delinquent amounts on or before March 3, 2023. The notice further
informed Tenant that failure to comply with the demand would result in Landlord exercising its
right to collect all delinquent amounts without further notice to Tenant.
13. Tenant failed to make any payments in response to the February 2, 2023 default
notice. On April 10, 2023, Landlord entered into a new lease of the Demised Premises, with
3 Exhibit 3 — February 2, 2023 Letter from counsel for Landlord to Tenant and Guarantor.
Plaintiff's First Amended Petition Page 3
monthly rental payments beginning on October 1, 2023. After applying Tenant’s security deposit
and crediting all lawful offsets, Tenant owes Rent, Common Area Maintenance Charges, late
charges, Taxes, and cleanup costs totaling $37,692.61.
V. CAUSES OF ACTIONDAMAGES
A. BREACHOF CONTRACT
14, All payments received from or owed by Tenant in regard to the Lease have been
applied to the outstanding balance owed Landlord. Pursuant to the aforementioned provisions of
the Lease, Tenant did promise to pay the rental amounts and other sums specified in the Lease.
Landlord requested that Tenant pay certain sums due and owing under the Lease. Tenant has
refused and still refuses to pay the requested amounts, thereby constituting a breach and default
of the Lease. After crediting all lawful offsets, Landlord is entitled to be paid Rent, Common
Area Maintenance Charges, late charges, Taxes, and cleanup costs totaling $37,692.61.
B GUARANTY BY CHANGXIANJ IANG
15. Defendant, Changxian Jiang, personally guaranteed the obligations of Tenant
under the terms of the Lease. As a result, Landlord brings this suit against Guarantor. As
Guarantor, Defendant, Changxian Jiang, is responsible for payment of Tenant’s obligation,
which currently totals $37,692.61.
Cc MONETARY DAMAGES
16. Landlord seeks monetary damages from Tenant and Guarantor arising from the
foregoing cause of action. Pursuant to the aforementioned terms of the Lease, Tenant and
Guarantor are jointly and severally liable to Landlord in the amount of $37,692.61, for Rent,
Common Area Maintenance Charges, late charges, Taxes, and cleanup costs.
Plaintiff's First Amended Petition Page 4
D. ATTORNEYS’ FEES
17. Landlord has been required to retain counsel to prosecute this case against Tenant
and Guarantor. Consequently, Landlord also seeks its reasonable and necessary attorneys’ fees,
court costs, and expenses from Tenant and Guarantor pursuant to Section 19.12 of the Lease,
Paragraph 6 of the Guaranty, and Chapter 38 of the Texas Civil Practice and Remedies Code.
VI. CONDITIONS PRECEDENT
18. All conditions precedent have been performed, waived, or excused by law.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Colony Lakes Center, Ltd.,
respectfully requests that it be awarded judgment in the amount of $37,692.61, against
Defendants, MJ Star Tea Inc and Changxian Jiang, along with all post-judgment interest, court
costs, and attorneys’ fees, and such other and further relief, both legal and equitable, to which it
may be justly entitled.
Respectfully submitted,
ROTHFELDER& FALICK, L.L.P.
/s/ Christopher W. Rothfelder
ChristopherW. Rothfelder
Texas Bar No. 24084740
crothfelder@ rothfelderfalick.com
Michael C. Falick
State Bar Number 06794600
mfalick@ rothfelderfalick.com
1201 Louisiana, Suite 550
Houston, Texas 77002
Telephone: (713) 220-2288
Telecopier: (713) 658-8211
ATTORNEYS FOR PLAINTIFF,
CoLony LAKES CENTER, L1p.
Plaintiff's First Amended Petition PageS
CERTIFICATE OF SERVICE
I certify that on July 13, 2023, I served a true and correct copy of this document via
electronic delivery, and/or certified mail, retum receipt requested upon the parties listed below.
MJ Star Tea Inc Via CM, RRR, #7019 2280 0002 1186 1723
Attn: Changxian Jiang
1239 S. Maple Drive
Katy, Texas 77493
Changxian Jiang Via CM, RRR, #7019 2280 0002 1186 1730
13906 Fraser Lake Lane and Email: jackjiang1314@yahoo.com
Houston, Texas 77083
/s/ Christopher W. Rothfelde
Christopher W. Rothfelder
Plaintiff's First Amended Petition Page 6
EXHIBIT 1
SHOPPING CENTER LEASE
This lease (‘"Lease") is entered into as of July 2016, by and between the Landlord and the Tenant hereinafter named.
ARTICLE I. BASIC LEASE PROVISIONS
Section 1.1. Definitions and Certain Basic Provisions. The following Basic Provisions are an integral part of this Lease, are
referred to in other Sections hereof, and are set forth in this Section 1.1 for the convenience of the parties. Each reference in this Lease to a
Basic Provision shall be construed to incorporate all of the terms provided for under such provisions.
(a) “Landlord”: Colony Lakes Center, Lid.
(b) Landlord’s mailing address: Atin: Juan Pablo Boselmann Lahud
Two Allen Center
1200 Smith, 16" Floor
Houston, Texas 77002
with a copy to: CBRE, Inc.
2800 Post Oak Blvd., Suite 2300
Houston, Texas 77056
(c) “Tenant”: M.J STAR TEA INC, a Texas corporation
(d) Tenant’s m wgaddress. 1239 S Maple Dr.
Kat TX 77493
(e) Tenant's Trade Name: Kung Fu Tea
wo Tenant's address in Shopping Center:__ HighWaVO
6250 SHU SHiie36
ou Tex: 77459
(g) “Demised Premises”: approximately 1,200 square fect in area, the approximate location of such Demised Premises
being cross-hatched on Exhibit “A” attached hereto and made a part hereof, in the Colony Lakes Shopping Center (the “Shopping
Center”) located on the real property described on Exhibit allached hereto and made a part hereof.
b) “Commencement Date”: The full execution of this Lease by Landlord and Tenant.
“Rent Commencement Date’: Minimum Guaranteed Rent shall commence on December 1, 2016. Tenant's obligation
to pay Tenant's Pro Rata Share of Common Area Expenses, Tenant's Pro Rata Share of Taxes, and Tenant’s Pro Rata Share of
Insurance shall commence on the earlier of: (i) Tenant opening for business in the Demised Premises or (ii) February 1, 2017.
@ “Lease Term”: Commencing on the December1, 2016 and continuing for eighty four (84) months thereafter.
@ “Minimum Guaranteed Rental”:
Months 1 through 12 $2,350.00 per month.
Months 13 through 24 $2,409.00 per month.
Months 25 through 36 $2,469.00 per month.
Months 37 through 48 $2,531.00 per month.
Months 49 through 60 $2,594,00 per month
Months 61 through 72 $2,659.00 per month.
Months 73 through 84 $2,725.00 per month.
(&) “Percentage Rent Rate”: N/A
wo “Breakpoint”: N/A
(m) Security Deposit: $6,275.00 ($2,950.00) shall be applied to the first full calendar month's Minimum Guaranteed
Rental, Tenant's Pro Rata share of Common Area Expenses, Tenant’s Pro Rata Share of Taxes and Tenant's Pro Rata Share of Insurance).
(n) “Permitted ue The Premises shall be used for the operation of a bubble tea house serving Asian teas and coffees,
oncessionar 2 finger for no other use without Landi s prior written consent, The Pert ct to al
existing restrictions and exclusive uses aj licable to the Shor Center,i limited to. hare listed_on Exhibit H.
‘Tenant is prohibited from being engaged in any way in the sale of alcoholic beverages, either for consumption of alcoholic beverages o
ihe Premises or off the Premises,
(0) “Tenant’s Pro Rata Share of Common Area Expenses”: all sums payable by Tenant pursuant to Section 8.2 hereof,
which amount ally estimated to be $2.55 per month and shall be payable in advance, subject to periodic adjustments, commencing on
the first day of the Lease Term.
) “Tenant's Pro Rata Share of Taxes”: all sums payable by Tenant pursuant to Section 3.4 hereof, which amount is
init ly estimated fo be $3.30 per month and shall be payable in advance, subject to periodic adjustments, commencing on the first day of
the Lease Term.
CANITIAL
LORD TENANT
TV cs
() “Tenant’s Pro Rata Share of lasurance”: all sums payable by Tenant pursuant to Section 11,2(a) hereof, which
amount is initially estimated to be $0.15 per month and shall be payable in advance, subject to periadic adjustments, commiencing on the
first day of the Lease Term.
w “Tenant's Pro Rata Share” means it fraction having as its numerator the number of square feet of Noor area in the
Demised Premises and as its denominator the average annual number of square (eet of Ieasuble area in the Shopping Center as conclusively
established from time to time by the then most recent certificate issued by Landlord's designated architect. Certain tenants in the Shopping
Center may have the option to, a be responsible for, incurring and paying certain expenses directly that are normally incurred by and
reimbursable to Landlord (i.c., garbage coflection, taxes, insurance, etc.). In such instances, Landlord reserves the right to exclude the
premises leased to such tenant(s) from the denominator of the foregoing fraction lor purposes of calculating Tenant's Pro Rata Share with
respect to stich expense(s). Landlord also reserves the right, from time to time, to exclude from the denominator of the foregoing fraction
any space within the Shopping Center thal is not subject to a lease, bas no storefront, and is physically separated from other space in the
‘Shopping Center by a demising wall or other barrier.
Boch of the foregoing definitions and basic provisions shall be construed in conjunction with and limited by the references thereto in the
other provisions ofthis Lease.
ARTICLE Ii, GRANT AND TERM
SECTION 2.1. Demised Premises. Landlord, in consideration of the rent to be paid and the covenants ta be performed by
‘Tenant, does hereby demise and Jease unto Tenant, and Tenant hereby rents from Landlord, the Demised Premises. The Demised Premises
are described in Section 1.1(g) hereol and the square footage for the Demised Premises set forth in Section 1.1(g) shall be the square
footage for the Demised Premises forall purposes under this Lease,
‘The exterior walls and roofof te Demised Premises and the area beneath the Demised Premises are not demised hereunder, and
the use thereof together with the right to install, maintain, use, repair, and replace pipes, ducts, coniluits, wires and structurat elements
leading through the Demised Premises in locations which will not materially interfere with ‘Tenant's use thereof and serving other parts of
the Shopping Center are hereby reserved unto Landlord,
SECTION 2,2. Commencement and Ending Day of Term. ‘The term of this Lease shali commence December 1, 2016, and
shall end on the expiration of the Lease Term unless sooner terminated as hereinafter pravided, The exact Rent Commencement Date and
termination date of this Lease shall be set forth by Landlord ia the form of a "Start Rent Letter” delivered to Tenant by certified mail.
Occupancy of the Demised Premises by Tenant prior to the Rent Commencement Date shal! be subject to all of the terms and provisions of
this Lease excepting only those requiring the payment of rent. Landlord and Tenant cach agree that at the request of either they will,
following the Rent Commencement Date, execute and deliv a feller of agreement, acknowledging that Tenant has accepied possession,
and reciting the exact Rent Commencement Date and termination date of this Lease.
ARTICLE
UJ. RENT
SECTION 3.1. |. The Minimum Guaranteed Rental payable by Tenant cach month during the
entire Lease Term shaft be the amount set forth in Section 1.1(j) hereof, which amount shall be payable on or before the first (Ist) day of
each month, in advance, at the office of Landlord, or such other place as Landlord may designate, without any prior demand therefor and
without any deductions or setoff whatsoever, Should the Lease Term commence on a day other than the first (1st) day of a calendar month,
then the Rent (as hereinafter defined) for such first partial month shall be an amount equal to the Rent specified for the first full calendar
month for which Minimum Guaranteed Rental is due as herein provided prorated upon i daily basis based upon a thirty (30) day calendar
month, and shall be due-and payable on or before the Rent Commencement Date.
SECTION 3.2. Percentage Rent, Intentionally deleted,
SECTION 3.3, Gross Sales. The term "Gross Sales” as used herein shall be construed to include the entire amount of the actual
sales price, whether for cash or otherwise, of all sales of merchandise or services and all other receipts whatsoever of afl business
conducted on or from the Demised Premises, including without limitation, mail or telephone orders received or filled at the Demised
Premises, and including without ti ion, afl deposits not refunded to purchasers, orders taken, although said orders may be filled
elsewhere, and including without tation, sales by any sublessee, concessionaire or licensee or otherwise in the Demised Premises. Each
sale, or layavvay, upon installment or credit shall be treated as a sale for the full price in the month during which such sale was made,
irrespective of the time when Tenant receives payment from its customer. No deduction shall be allowed for uncollected or uncollectible
credit accounts. Said term shaft not include, however, any sums collected and paid out for any sales or direct excise tax imposed by any
duly constituted governmental authority nor shall it include the exchange of merchandise between the stores of Tenant, if any, where such
exchange of goods or erchandise is made solely for the convenient operdtion of the business of Tenant and nat for the purpose of
consummating a sale which has theretofore been made, in or from the Demised Premises and/or for the purpose of depriving Landiord of
the benefit ofa sale which otherwise would be made in or from the Demised Premises, nor shall the term include the umount of returns to
shippets or manufacturers, nor proceeds from (he sale of trade fixtures. There shall he deductible from Gross Sales the amount of any cash
or credit refund made upon any sate in or from the Demised Premises where the merchandise sold, or some part thereof, is thereafter
returned by the purchaser and accepted by Tenant.
SECTION 3.4. Tenant’s Tax Obligations, (a) ‘Tenant agrees to pay to Landlord Tenant's Pro Rata Share of all Taxes (as
hereinafter defined) for each calendar year during the term hereof, With respect to any buildings in the Shopping Center which are
separately assessed, at Landtord’s option the taxes and assessments relating thereto shall not be deemed “Taxes” hereunder and in such
event, the Moor area of such separately assessed building(s) shall not be included in the denominaer of the fraction used in calculating
‘Tenant’s Pro Rata Share of Taxes,
(b) “Taxes” shall mean all taxes and existing and fulure assessments, general and special, and governmental charges of any
kind or nature whatsoever, which may be levied or assessed by any lawful authority during or for each calendar year of the term of this
Lease against the land, buildings, and improvements comprising the Shopping Center, including without limitation, all (i) ad valorem reat
property (axes and assessments (including installments of spccial assessments required to be paid during the calendar year); (ii) other taxes,
other charges and impositions imposed by the State or any subdivision thereof which: (A) are in replacement of or in addition to all or any
JiNTTIAL
TENANT,
OY of
part of ad valorem taxes as sources of revenue, and (B) are based in whole or in part upon the land and building of which the Demised
Premises are a part or any interest therein or the ownership thereof, or the rents, profits or other income therefrom, including, without
limitation, income, single business, Iranchise, excise, license, privilege, sales, usc, and occupancy taxes; i) taxes or surcharges of any
kind or nature upon, against or with respect to the parking areas or the number of parking spaces in the Shopping Center, and (iv) taxes
and/or assessments of any kind or nature upon, against or with respect to the rentals and other charges payable by tenants in the Shopping
Center to Landlord derived from the Shopping Center or with respect to Landlord's, or the individuals’ or entities’ which form Landlord.
hercin, ownership of the Iand or buildings comprising the Shopping Center. Any costs, expenses and altorneys fees (including the costs of
tax consultants) incurred by Landlord in connection with the negotiation for reduction in the assessed yaluation of land, buildings and
iinproyements comprising the Shopping Center and any protest or contest of real estate (axes and/or assessments shall be included within
the (erm “Taxes.” 5
©) Tenant's Pro Rata Share of Taxes tevied or assessed for or during the Lease Term hereof shall be paid in monthly
instatlnents on or before the first (Ist) day of cach calendar month, in advance, in an amount estimated by Landlord; provided, that in the
event Landlord is required uncer any morigage covering the Shopping Center to escrow Taxes, Landlord may, but shall not he obligated t0,
‘use the amount required to be so escrowed as a basis for its estimate of the monthly instalments, due from Tenant hereunder. Upon receipt
of all tax bills and assessment bills or in the event filing of returns is required, prior to the due date for Gling such returns, attributable to
any calendar year during the lerm hereof, Landlord shall furnish Tenant with a weitten statement of the actual amount of Tenant’s Pro Rau
Share of Taxes for such year. In the event no tax bill is available, Landlord may compute the amount of such tax. If the toral amount paid
by Tenant under this Section 3.4 for any calendar year during the term of this Lease shall be less than the actuaf amount due from Tenant
for such year, as shown on such stateme ‘enant shall pay (o Landlord the difference between the amount paid by Tenant and the actual
amount due, such deficiency to be paid within ten (10) days after demand therefor by Landlord; and if the total amount paid by Tenant
hereunder for any such calendar year shail exceed such actual amount due from Tenant for such calendar year, such excess may be credited
against {he next installment of Taxes due from Tenant to Landlord hereunder, For the calendar years in which this Lease commences and
terminates, the provisions of this Section 3.4 shall apply, and Tenant's liability for Tenant's Pro Rata Share of Taxes for such years shall be
subject 0 a pro rata adjustment based on the number of days ofsaid calendar years during which the (erm of this Lease is ineffiect. A copy
of a tax bill or assessment bill submitted by Landlord to Tenant shall at all times be sufficient evidence of the amount of Taxes assessed or
fevied against the property to which stich bill or return relates. Prior to or at the Rent Commencement Date aud from time to time
thereafter throughoot the term hereof, Landlord shall notify Tenant in writing of Landlord’s estimate of Tenant’s monthly installments due
hereunder, Landlord's and Tenant’s obligations under this Section 3.4 shall survive the expiration or the termination of this Lease.
@) If any of the taxes relerred to in Section 22.1 hereof are levied against Landlord or Landlord's property and if Landlord
elects to pay the same of if the assessed value of Larullord's property is increased by inclusion ofTenant's Property (as hereinafter defined)
placed by Tenant in the Demised Premises and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon
demand that part of such taxes relating to Tenant's Praperty.
(ce) ‘Tenant may, alone or along with any other tenants of the Shopping Center, at its or their sote cost and expense, in its or
their own name(s) dispute and contest any ‘Taxes by appropriate proceedings diligently conducted in good faith, but only after Terrant andl
all other tenants, if any, joining with Tenant in such contest have deposited with Landlord the amount so contested and unpaid, or their
proportionate shares thereof as the case may be, which shall be held by Landlord without obligation for interest until the termination of the
proceedings, at which time the amount(s) deposited shall be applied by Landlord toward the payment of the items held valid (plus any
‘court costs, interest, penalties and other liabilities associated with the proceedings), and Tenant's share of any excess shall be returned to
"Tenant, Tenant further agrees to pay to Landlord upon demand Tenant's share (as aniong all tenants who participate in the contest) of all
court costs, interest, penalties and other liabilities relating to such procecdings, Tenant hereby indemnifies and agrees to hold Landtord
harmless from and against any cost, damage or expense (including attorneys’ fees) in connection with any such proceedings.
SECTION 3.5. Payments, ‘Tenant shall pay any and all suins of money or charges required to be paid by ‘Tenant under this
Lease promptly when the sume are dus, without any deductions or setoff whatsoever. Tenant's failure to pay any such amounts or charges
when due shatl cwry with it the same consequences as Tenant’s failure to pay Rent, Al such amounts or charges shall be payable to
Landlord at the place where the Minimum Guaranteed Renial is payable. In the event Tenant fails to pay to Landlord when due any
installment of rental or other sum to be paid to Landlord which may become due hereunder, Landlord will incur additional expenses in an
amount nof readily ascertainable and which has not been elsewhere provided for between Landlord and Tenant. 1f Tenant shoud fail to
pay to Landlord when due any installment of réntal or other sum to be paid hereunder, Tenant shall pay Landlord on demand a late charge
equal to the greater of (i) $100.00, or (ii) five percent (5%) of the past due amount. Failure to pay such late charge upon demand therefor
shall be an event of defanit hereunder. Provision for such late charge shall be in addition to ail other rights and remedies available to
Landlord hereunder or at faw or in equity and shall wot be construed as liquidated damages or limiting Landlord's remedies in any manner.
SECTION 3.6. Definition of Rent, The Minimum Guaranteed Rental, Tenant's Pro Rata Share of Taxes, Tenant’s Pro Rata
Share of Common Area Expenses, Tenant's Pro Rata Share of Insurance, utility services paid by Tenant (o Landlord, any additional rental,
and all other amounts required (o be paid by Tenant to Landlord under this Lease shall be collectively referred to as “Rent.”
RTICLE LY. RECORDS AND BOOKS OF ACCOUNT
SECTION 4.1. Tenant's Records, Intentionally deleied.
SECTION 4.2. Reports by Tenant. Tenant shall furnish to Landlord within thirty G0) days after Landiord’s written request a
complete statement, certified by an independent certified public accountant employed by Tenant, showing in all reasonable detail the
amount of Gross Sales made by Tenant from the Demised Premises during the preceding calendar year or partial calendar year. Tenant
shall require all ofits subtenants, conc jionaires and licensees, if any, to furnish similar statements. Provided however, that Landiord shall
not require Tenant to produce the forgoing statement more than twice (2x) in any calendar year.
ARTICLE V,_ AUDI
SECTION 5.1, Right to Examine Books. Intentionally deleted.
SECTION §.2. Audit, Intentionally deleted
L INITIAL.
LAROLORD TENANT
t #
C4
ARTICLE VL. IMPROVEMENTS TO DEMISED PREMISES
SECTION 6.1. Acceptance
of Demisod Premises, Landlord shall procced to construct improvements upon the Demised
Premises in compliance with the description of “Landlord's Work" in Exhibit “C” attached hereto, with such minor variations as Landlord
may deem advisable, and tender the Demised Premises to Tenant, If Section 2.2 of Part L of Exhibit “C” has been indicated as applicable
to this Lease, then the Demised Premises shall be deemed “Ready for Occupancy” as of the date of this Lease. I Scetion 2,1 of Part Taf
Exhibit “C” has been indicated as applicable to this Lease, then the Demised Premises shall be deemed to be “Ready for Occupancy”
when Landlord cestifies in writing to ‘Tenant that Landtord has substantially completed Landlord's Work, as described in Exhibit “C”.
“Substantial Completion” for the purposes of this Section 6,1 and hereinilter shall be as defined in Exhibit “C”. If the Demised Premises
are not Ready for Occupancy prior to the Estimated Completion Date as sot forth in Exhibit “C”, Landlord shall not be deemed to be in
default hereunder or otherwise Hable in damages to Tenant, nor shall the term of this Lease be affected, except that if for any reason the
Demised Premises are not Rendy for Oceupancy within eighteen (18) months {ollowing the Estimated Completion Date, Tenant may at its
option terminate this lease by written notice to Landlord delivered within thirty (30) days foltowing the expiration of such cighteen (18)
month peri , in which event neither party shall have any further liabilities or obtigations hereunder, except that Landiord shall repay 10
‘Tenant any prepaid rent or security deposit. Tenant agrees that Landlord shall incor no liability to ‘Tenant by reason of any defect in the
Demised Premises, whether apparent or latent, and Tenant's and Landlord's mutual covenants under this Lease are and shall remain
independent of each other and Tenant's covenants, including the duty to pay Rent, shall not be affected by any such alleged defect.
SECTION 6.2. Changes and Additions. Landlord reserves the right al any time ard from tine to lime (a) to make or permit
changes or revisions to the Shopping Center as shown on Exhibit “A” including additions to, subtractions (rom, rearrangements of,
alterations of, modifications of or supplements to the building areas, walkways, parking arcas, driveways or other areas, (b) to construet
other buildings or improvements in the Shopping Center and to make alterations thereofar additions thereto and 10 build additional storics.
on any such building of buildings and (o build adjoining same, and (c) 4o convey portions of the Shopping Center to others for the purpose
of constructing thereon other buildings oF improvements, including additions thereto and alterations thereof; provided, however, that no-
such changes, rearrangements or other construction shall reduce the parking areas provided by Landlord below the number of parking
spaces required by applicable law. Landlord may from time to time substitute for any parking atea shown on Exhibit “A”, other areas or
multi-level parking facilities reasonably aceessibte othe Tenants of the Shopping Center.
SECTION 6.3, Construction of Demised Premises by Tenant. (a) Tenant hereby agrees, in accordance with the
requirements of Exhibit “€, al Tenant's sole cost and expense, t0 (i) prepare its plans and specifications (including, without limitation,
fixturing plan) and detiver same to Landtord for Landlord's approval prior to commencement of any work by Tenant; (i) furnish and
install rade Fixtures as required by Tenant's approved plans and specifications, which Fixtures shall be new, unless otherwise approved in
writing by Landlord; (ii) perforrm the work enumerated on Tenant's approved plans and sp ‘ations and in Exhibit “C” hereto, at
‘Tenant’s sole cost and expense, which work shall comply with Section 9.1(b) hereof; and (iv) furnish and install Tenant's exterior sign,
which sign shall be subject to Landlord's prior written approval and shall comply with Landlasd’s siga criteria set forth in Exhibit “D”
attached hereto and made a part hereof and Section 9.3 hereof (collectively, “Fenant’s Wark"), When the Demised Premises are Ready for
Occupancy, Tenant agrees to accept possession thereof and to proceed with due diligence to perform Tenant's Work and (o install its
fixtures, furniture and equipment. Any Tenant Work involving venting, opening, sealing, waterproofing or any altering of the roof shall be
performed by Landlord's roofing contractor at “Fenant’s expen: >. Tenant shall provide Landlord with a certificate from Landlord's roofing
contractor that all of Tenant's Work involving venting, opening, scaling, waterproofing or in any way altering the roof has been performed
in compliance with Landlord's specifications, Tenant hereby holds Landlord harmless from any damage to the Demised Premises,
resulting, directly or indirectly, from Tenant's venting, opening, sealing, waterproofing or other altering of the roof unless such a certificate
from Landlord's rooting contractor has been del red to Landlord before the date of any such damage. Tenant will be responsible for any
costs W restore the roof lo Landlord's specifications should Tenant fail lo provide such roof inspection certificate. In ihe event of any
dispute as to work performed or required to be performed by Landlord or Tenant, the certificate of Landlord's architect or engineer shall be:
conclusive, Except as otherwise expressly provided in Exhibit “C’” with respect to Punch-List items (as defined in Exhibit “C”), by
performing any Tenant Work in he Demised Premises after Substantial Completion of Landlord's Work, Tenant shall be deemed to have
accepted the same and to have acknowtedged that the same fully comply with Landlord's covenants and obligations heraunder. Tenant
further agrees that, if requested by Landlord, ‘Tenant will furnish Landlord with a written statement that Tenant has accepted the Demised
Premises and that Landlord has fully complied with Landlord's covenants and obtigations hereunder, Tenant agrees to furnish Landlord a
cerlificate of occupancy from applicable focal authorities on or before the Rest Commencement Date,
(by With respect ta any labor perfonned or materials furnished for or at the direction of Tenant at the Demised Premises (if
sany), the foltowing shall apply: afl labor performed and materlals furnished shall be at Tenant's sole cost, expense and risk; all material
utilized in the performance of Tenant’s Work must be confined to within the Demised Premises; ali trash and construction debris nat
Jocated wholly within the Demised Premises must be removed each day from the Shopping Center al the sole cost and expense of Tenant;
fabor and materials used in the performance of Tenant’s Work or the installation of Tenant's furniture and fixtures, and in any other work
on the Demised Premises performed by Tenant, will be subject to Landiord’s prior written approval. Any such approval shall constitute a
revocable ticense authorizing Tenant to permit sich labor and to enter upon the Demised Premises prior to commencement of the Lease
Term, subject to the terms of Exhibit “C”, Prior to commencing business in the Demised Premises, Tenant shall deliver to Landlord a
copy of a ccrlificate of occupancy for the Demised Premises issted by the appropriate governmental authorities.
() With respect to any contra for any such labor ar materials, Tenant acts as principal and not as the agent of Landtord
and Landlord hereby expressly disclaims liabi for the cost of labor performed for or materials furnished ta Tenant. Any approval given
by Landlord with respect (o Tenant's construction or installation of Tenant’s furniture or fixtures or ather interior work shall not (1) make
Landlord tiable or responsible in any say for the condition, quality or function of such matters, Gi) constitute any undertaking, warranty or
representation by Landlord with respect to any of such matters, or (ii) imply that the Demised Premises or Tenant's plans and
specifications comply with any applicable federal, state or local laws, building codes, ordinances, rules or regulations affecting the
Demised Premises. ‘Tenant agrees to indemnify and hold Landlord, the Demised Premises and the Shopping Center harmless from all
claims (including ali cosis and expenses of defending against such claims) arising (or alleged to arise) from any act or omission of Tenant
or Tenant's agents, employees, contractors, subcontractors, architects, designers, engineers, corisultants, laborers, materialmen or invitees,
co arising from any bodily injury or property damage arising (or alleged lo arise) incident to any of Tenant's Work performed with respect
to the Demised Premises.
«@) ‘With respect to any such labor or matcrials, Tenant shall deliver to Landlord within thirty (30) days after completion of
such work, lien releases in recordable form executed by all contractors, subcontractors and materialmen performing such work or
INTIAL,
TENANT,
THY
o5
furnishing mater in connection therewith, Tenant shall keep the Demised Premises and all other parts of the Shopping Center free from
any and all liens arising out of any work performed, materials furnished or obligations incurved by or for Tenant, and agrees to bond
against or discharge any mechanic's or muterialmen’s lien within ten (10) days after written request therefor by Landloré, “Tenant shat!
reimburse Landlord for any and all costs and expenses which may be incurred by Landtord by reason of the filing of any such liens and/or
the removal of same, such reimbursement to be made within ten (10) days after receipt by Tenant from Landlord of a statement setting,
forth the amount of such costs and expenses, The failure of Tenant to pay any such amount to Landlord within said ten (10) day period
shail earry with it the same consequences as failure to pay any installment of Rent,
SECTION 6,4. Sottlement_of Disputes, It is understood and agreed that any disagreement or dispute which may arise
between Landlord and Tenant with reference to the work to be performed with respect to Tenant's Work shall be submitted to Landlord's:
architect
or engineer, whose decision shall be final and binding on both Landlord and Tenant.
SECTION 6.5. Financing. Landlord shall not be obligated to proceed with construction on the Demised Premises or
Shopping Center unless and until acceptable financing and a construction contract acceptable to Landlord are obtained. Unless
commitments for sich financing have been obtained and all conditions to such commitments (other than construction of the Shopping,
Center) shall have been fulfilled within wvelve (12) months following the Estimaied Completion Date, Landlord may so notify Tenant in
writing within thirly (30) days following the expiration of such twelve (12) month period, and this Lease shall thercupon cease and
terminate and each of the parties hereto shail be released and discharged from all liability and responsibility hereunder. No expenditure of
‘any sum or incurring of any liability by Tenant for merchandise, fixtures, equipment, labor, materials or otherwise shall affect the rights of
Landlord hereunder. If Landlord ean obtain aceeptable financing and an acceptable construction contract only upon the basis: of
‘modification of the terms and provisions of this Lease, Landlord shall have the right to cancel this Lease if Tenant refuses (o approve in
writing any such modification within fifleen (15) days atter Landford's request therefor, If such right to cancel is exercised, this Lease shall
thereafter be null and void, any security deposited hereunder shall be returned to Tenant, and neither party shall have any liability to the
other by reason of such cancellation,
RTICLE Vii. CONDUCT OF BUSINESS BY TENANT
SECTION 7.1. Use of Demised Premises. ‘Tenunt shall use and occupy the Demised Premises during the conlinuance of this
Lease solely for the purpose of the Permitted Use set forth in Section 1.1(n) hereaf, and for no other purpose of purposes without the prior
written consent of Landlord, which may be granted or withheld in Landlord's sole and absolute discretion. If any governmental Jicense or
permit shall be required for the proper ond Jawfub conduct of Tenant’s business or other activity carried on in the Demised Premises or if
failure to procure such license ot permit might or woutd, in any way, affect Landlord, the Shopping Center or the Demised Premises, then
‘Tenant, al Tenant's expense, shall duly procure and thereafter maintain such license or permit and submit the same for inspection by
Landdtord. ‘Tenant, at Tenant's expense, shall, at al times, comply with the requirements af each such license or permit,
SECTION 7.2. Qperation ef Business. (a) Tenant agrees to operate onc hundred percent (100%) of the Demised Premises
during the entire Lease Term unless prevented from doing so because of fire, accident, or acts of God, and to conduct its business at all
times in a high class and reputable manner, maintaining at afl times a full staff of employees and a full and complete stock of merchandise.
‘Tenant shall install and maintain at all times a display of merchandise in the display windows, if any, of the Demised Premises and shatl
keep same well lighted from dusk until 2:00 a.m. every day including Sundays and holidays.
(b) Because of the difficulty or impossibility of determining Landlord's damages by way of loss of the anticipated
Percentage Rent from other tenants or ozeupants of the Shopping Center, or by way of loss of value of the Shopping Center because of
diminished saleability or mortgageability or adverse publicity or appearance by Tenant’s action, should Tenant (3) ful to take possession
and open for business in the Demised Premises fully fixtured, stocked and staffed on the Ren! Commencement Date, or (ii) abandon, leave
vacant or desert the Demised Premises, or (fii) cease operating or conducting Tenant's business in accordance with the terms of this
Section 7.2, or (iv) fail or refuse to maintain business hours on soch days or nights or any part thereof as provided in this Section 7.2, then
and in any of such events (hereinafter collectively referred to as “failure to do business”), Landiord shall have the right, in addition to any
and all other rights or remedies Landlord may have under this Lease oF al law or in equity, at Landiord's option (i) to collect not only
Minimum Guaranteed Rental and all items of additional rent herein reserved, but also further additional rent equal to one-half of the
amount of Minimum Guaranteed Rental reserved for the period of Tenant's failure ta do business, computed at a daily rate for each and
every day or part thereof during such period and/or (ii) to treat such failure to do business as a default by Tenant hereunder.
(c) ‘Tenant acknowledges that (i) Tenant’s obligations under this Section 7.2 have been specifically bargained for and are
independent covenants; and (ii) Tenat’s required operation is necessary for Landlord to maintain a proper products, services and specific
merchandise mix in the Shopping Center and is integral to the Shopping Center's proper and successful operation, Tenant further
acknowledges and agrees that Landlord has riot made any express or implied warranties to'Tenant with respect ta the construction and/or
leasing of other space within o adj
Preview
CAUSE NO. 302710 COLONY LAKES CENTER, LTD. INTHE DISTRICT COURT OF vs. FORT BEND COUNTY, TEXAS MJ STAR TEA INC and CHANGXIAN JIANG JUDICIAL DISTRICT FIRST AMENDED PETITION TO TH ABLE JUDGE OF SAID COURT: Plaintiff, Colony Lake Center, Ltd. Landlord), files this First Amended Petition against Defendant MJ StarTeaInc Tenan and Changxian Jiang ( Guarantor and would respectfully show the Court the following: 47S EMENT AND DISCOVERY CONTROL PLAN Pursuant to Tex. R. Civ. P. 47, Plaintiff is seeking to recover monetary relief pursuant to a commercial lease agreement. The damages are within the jurisdictional limits of this Court. Pursuant to Tex. Civ 190.3, this suit is governed by Discovery Control Plan Level 2. PARTIES Plaintiff, Colony Lakes Center, Ltd., is a Texas limited partner , which may be contacted through its counsel, Rothfelder & Falick, L.L.P. Defendant, Star Tea Inc, is a domestic corporation which has been served gh its registered agent, Changxian Jiang, at 1239 S Maple Drive, Katy, Texas 77493 Defendant, Changxian Jiang, is an individual, who has already made an appearance in this matter. Plaintiff's First Amended Petition Page I. JURISDICTIONAND VENUE 5. The Court has jurisdiction over Defendants because Tenant entered into and breached the Shopping Center Lease at issue in this case in Fort Bend County, Texas, and Guarantor entered into a Guaranty of the Shopping Center Lease at issue in this case in Fort Bend County, Texas. The Court has jurisdiction over the subject matter because the amount in controversy is within the Court’s jurisdictional limits. 6 Venue is proper in Fort Bend County, Texas, because that is where the real property that is the subject of this landlord-tenant dispute is located, and where the causes of action accrued. IV. FACTUAL BACKGROUND 7 Landlord and Tenant entered into and executed a Shopping Center Lease (the “Lease”), providing for Landlord’s leasing to Tenant approximately 1,200 square feet in the shopping center located at 6250 Highway 6 South, Suite 36, Missouri City, Texas 77459 (the “Demised Premises”).! The Lease commenced on December 1, 2016, for a term of eighty-four months. 8 Simultaneous with Tenant’s execution of the Lease, Guarantor entered into a Guaranty of the Lease.” Pursuant to the Guaranty, Guarantor agreed to jointly and severally, unconditionally and absolutely guarantee to the Landlord the full, prompt and complete payment by the Tenant of the rent and all other sums which may be payable by the Tenant under the Lease and the full, prompt and complete performance by the Tenant of all and singular the terms, covenants and provisions in the Lease required to be performed by the Tenant without regard to any forbearance, delay, neglect or failure on the part of Landlord in enforcing same. 1 Exhibit 1 the Lease. ? Exhibit 2 — Guaranty of Lease. Plaintiff's First Amended Petition Page 2 9 Pursuant to Article III of the Lease, Tenant is required to pay accrued Minimum Guaranteed Rental and Additional Rental on the first day of each month during the Term of the Lease. Article III also requires Tenant to pay Tenant’s Pro Rata Share of all Taxes for each calendar year of the Term. Pursuant to Article VIII of the Lease, Tenant is required to pay Tenant’s Pro Rata Share of Common Area Expenses on the first day of each month during the Term of the Lease. Section 19.6 of the Lease also requires Tenant to pay the costs to repair, alter, remodel or otherwise put the Demised Premises into a condition acceptable to a new tenant following Tenant’s default. 10. Section 19.1 of the Lease provides that Events of Default shall include the following: (a) any failure of Tenant to pay when due any rental or other charges due hereunder, or (b) any failure to do business, as defined in Section 7.2(b) hereof, or (d) Tenant shall abandon, desert or vacate the Demised Premises . . .. 11. Tenant failed to pay the Rent, Common Area Maintenance Charge, and Taxes owed to Landlord beginning on October 1, 2022. Without notice to Landlord, Tenant vacated, and ceased doing business in, the Demised Premises in December of 2022. 12. Pursuant to Article XIX of the Lease, Landlord sent written notice of the default to Tenant and Guarantor on February 2, 2023.3 The notice stated that Tenant was in default and demanded payment of the delinquent amounts on or before March 3, 2023. The notice further informed Tenant that failure to comply with the demand would result in Landlord exercising its right to collect all delinquent amounts without further notice to Tenant. 13. Tenant failed to make any payments in response to the February 2, 2023 default notice. On April 10, 2023, Landlord entered into a new lease of the Demised Premises, with 3 Exhibit 3 — February 2, 2023 Letter from counsel for Landlord to Tenant and Guarantor. Plaintiff's First Amended Petition Page 3 monthly rental payments beginning on October 1, 2023. After applying Tenant’s security deposit and crediting all lawful offsets, Tenant owes Rent, Common Area Maintenance Charges, late charges, Taxes, and cleanup costs totaling $37,692.61. V. CAUSES OF ACTIONDAMAGES A. BREACHOF CONTRACT 14, All payments received from or owed by Tenant in regard to the Lease have been applied to the outstanding balance owed Landlord. Pursuant to the aforementioned provisions of the Lease, Tenant did promise to pay the rental amounts and other sums specified in the Lease. Landlord requested that Tenant pay certain sums due and owing under the Lease. Tenant has refused and still refuses to pay the requested amounts, thereby constituting a breach and default of the Lease. After crediting all lawful offsets, Landlord is entitled to be paid Rent, Common Area Maintenance Charges, late charges, Taxes, and cleanup costs totaling $37,692.61. B GUARANTY BY CHANGXIANJ IANG 15. Defendant, Changxian Jiang, personally guaranteed the obligations of Tenant under the terms of the Lease. As a result, Landlord brings this suit against Guarantor. As Guarantor, Defendant, Changxian Jiang, is responsible for payment of Tenant’s obligation, which currently totals $37,692.61. Cc MONETARY DAMAGES 16. Landlord seeks monetary damages from Tenant and Guarantor arising from the foregoing cause of action. Pursuant to the aforementioned terms of the Lease, Tenant and Guarantor are jointly and severally liable to Landlord in the amount of $37,692.61, for Rent, Common Area Maintenance Charges, late charges, Taxes, and cleanup costs. Plaintiff's First Amended Petition Page 4 D. ATTORNEYS’ FEES 17. Landlord has been required to retain counsel to prosecute this case against Tenant and Guarantor. Consequently, Landlord also seeks its reasonable and necessary attorneys’ fees, court costs, and expenses from Tenant and Guarantor pursuant to Section 19.12 of the Lease, Paragraph 6 of the Guaranty, and Chapter 38 of the Texas Civil Practice and Remedies Code. VI. CONDITIONS PRECEDENT 18. All conditions precedent have been performed, waived, or excused by law. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Colony Lakes Center, Ltd., respectfully requests that it be awarded judgment in the amount of $37,692.61, against Defendants, MJ Star Tea Inc and Changxian Jiang, along with all post-judgment interest, court costs, and attorneys’ fees, and such other and further relief, both legal and equitable, to which it may be justly entitled. Respectfully submitted, ROTHFELDER& FALICK, L.L.P. /s/ Christopher W. Rothfelder ChristopherW. Rothfelder Texas Bar No. 24084740 crothfelder@ rothfelderfalick.com Michael C. Falick State Bar Number 06794600 mfalick@ rothfelderfalick.com 1201 Louisiana, Suite 550 Houston, Texas 77002 Telephone: (713) 220-2288 Telecopier: (713) 658-8211 ATTORNEYS FOR PLAINTIFF, CoLony LAKES CENTER, L1p. Plaintiff's First Amended Petition PageS CERTIFICATE OF SERVICE I certify that on July 13, 2023, I served a true and correct copy of this document via electronic delivery, and/or certified mail, retum receipt requested upon the parties listed below. MJ Star Tea Inc Via CM, RRR, #7019 2280 0002 1186 1723 Attn: Changxian Jiang 1239 S. Maple Drive Katy, Texas 77493 Changxian Jiang Via CM, RRR, #7019 2280 0002 1186 1730 13906 Fraser Lake Lane and Email: jackjiang1314@yahoo.com Houston, Texas 77083 /s/ Christopher W. Rothfelde Christopher W. Rothfelder Plaintiff's First Amended Petition Page 6 EXHIBIT 1 SHOPPING CENTER LEASE This lease (‘"Lease") is entered into as of July 2016, by and between the Landlord and the Tenant hereinafter named. ARTICLE I. BASIC LEASE PROVISIONS Section 1.1. Definitions and Certain Basic Provisions. The following Basic Provisions are an integral part of this Lease, are referred to in other Sections hereof, and are set forth in this Section 1.1 for the convenience of the parties. Each reference in this Lease to a Basic Provision shall be construed to incorporate all of the terms provided for under such provisions. (a) “Landlord”: Colony Lakes Center, Lid. (b) Landlord’s mailing address: Atin: Juan Pablo Boselmann Lahud Two Allen Center 1200 Smith, 16" Floor Houston, Texas 77002 with a copy to: CBRE, Inc. 2800 Post Oak Blvd., Suite 2300 Houston, Texas 77056 (c) “Tenant”: M.J STAR TEA INC, a Texas corporation (d) Tenant’s m wgaddress. 1239 S Maple Dr. Kat TX 77493 (e) Tenant's Trade Name: Kung Fu Tea wo Tenant's address in Shopping Center:__ HighWaVO 6250 SHU SHiie36 ou Tex: 77459 (g) “Demised Premises”: approximately 1,200 square fect in area, the approximate location of such Demised Premises being cross-hatched on Exhibit “A” attached hereto and made a part hereof, in the Colony Lakes Shopping Center (the “Shopping Center”) located on the real property described on Exhibit allached hereto and made a part hereof. b) “Commencement Date”: The full execution of this Lease by Landlord and Tenant. “Rent Commencement Date’: Minimum Guaranteed Rent shall commence on December 1, 2016. Tenant's obligation to pay Tenant's Pro Rata Share of Common Area Expenses, Tenant's Pro Rata Share of Taxes, and Tenant’s Pro Rata Share of Insurance shall commence on the earlier of: (i) Tenant opening for business in the Demised Premises or (ii) February 1, 2017. @ “Lease Term”: Commencing on the December1, 2016 and continuing for eighty four (84) months thereafter. @ “Minimum Guaranteed Rental”: Months 1 through 12 $2,350.00 per month. Months 13 through 24 $2,409.00 per month. Months 25 through 36 $2,469.00 per month. Months 37 through 48 $2,531.00 per month. Months 49 through 60 $2,594,00 per month Months 61 through 72 $2,659.00 per month. Months 73 through 84 $2,725.00 per month. (&) “Percentage Rent Rate”: N/A wo “Breakpoint”: N/A (m) Security Deposit: $6,275.00 ($2,950.00) shall be applied to the first full calendar month's Minimum Guaranteed Rental, Tenant's Pro Rata share of Common Area Expenses, Tenant’s Pro Rata Share of Taxes and Tenant's Pro Rata Share of Insurance). (n) “Permitted ue The Premises shall be used for the operation of a bubble tea house serving Asian teas and coffees, oncessionar 2 finger for no other use without Landi s prior written consent, The Pert ct to al existing restrictions and exclusive uses aj licable to the Shor Center,i limited to. hare listed_on Exhibit H. ‘Tenant is prohibited from being engaged in any way in the sale of alcoholic beverages, either for consumption of alcoholic beverages o ihe Premises or off the Premises, (0) “Tenant’s Pro Rata Share of Common Area Expenses”: all sums payable by Tenant pursuant to Section 8.2 hereof, which amount ally estimated to be $2.55 per month and shall be payable in advance, subject to periodic adjustments, commencing on the first day of the Lease Term. ) “Tenant's Pro Rata Share of Taxes”: all sums payable by Tenant pursuant to Section 3.4 hereof, which amount is init ly estimated fo be $3.30 per month and shall be payable in advance, subject to periodic adjustments, commencing on the first day of the Lease Term. CANITIAL LORD TENANT TV cs () “Tenant’s Pro Rata Share of lasurance”: all sums payable by Tenant pursuant to Section 11,2(a) hereof, which amount is initially estimated to be $0.15 per month and shall be payable in advance, subject to periadic adjustments, commiencing on the first day of the Lease Term. w “Tenant's Pro Rata Share” means it fraction having as its numerator the number of square feet of Noor area in the Demised Premises and as its denominator the average annual number of square (eet of Ieasuble area in the Shopping Center as conclusively established from time to time by the then most recent certificate issued by Landlord's designated architect. Certain tenants in the Shopping Center may have the option to, a be responsible for, incurring and paying certain expenses directly that are normally incurred by and reimbursable to Landlord (i.c., garbage coflection, taxes, insurance, etc.). In such instances, Landlord reserves the right to exclude the premises leased to such tenant(s) from the denominator of the foregoing fraction lor purposes of calculating Tenant's Pro Rata Share with respect to stich expense(s). Landlord also reserves the right, from time to time, to exclude from the denominator of the foregoing fraction any space within the Shopping Center thal is not subject to a lease, bas no storefront, and is physically separated from other space in the ‘Shopping Center by a demising wall or other barrier. Boch of the foregoing definitions and basic provisions shall be construed in conjunction with and limited by the references thereto in the other provisions ofthis Lease. ARTICLE Ii, GRANT AND TERM SECTION 2.1. Demised Premises. Landlord, in consideration of the rent to be paid and the covenants ta be performed by ‘Tenant, does hereby demise and Jease unto Tenant, and Tenant hereby rents from Landlord, the Demised Premises. The Demised Premises are described in Section 1.1(g) hereol and the square footage for the Demised Premises set forth in Section 1.1(g) shall be the square footage for the Demised Premises forall purposes under this Lease, ‘The exterior walls and roofof te Demised Premises and the area beneath the Demised Premises are not demised hereunder, and the use thereof together with the right to install, maintain, use, repair, and replace pipes, ducts, coniluits, wires and structurat elements leading through the Demised Premises in locations which will not materially interfere with ‘Tenant's use thereof and serving other parts of the Shopping Center are hereby reserved unto Landlord, SECTION 2,2. Commencement and Ending Day of Term. ‘The term of this Lease shali commence December 1, 2016, and shall end on the expiration of the Lease Term unless sooner terminated as hereinafter pravided, The exact Rent Commencement Date and termination date of this Lease shall be set forth by Landlord ia the form of a "Start Rent Letter” delivered to Tenant by certified mail. Occupancy of the Demised Premises by Tenant prior to the Rent Commencement Date shal! be subject to all of the terms and provisions of this Lease excepting only those requiring the payment of rent. Landlord and Tenant cach agree that at the request of either they will, following the Rent Commencement Date, execute and deliv a feller of agreement, acknowledging that Tenant has accepied possession, and reciting the exact Rent Commencement Date and termination date of this Lease. ARTICLE UJ. RENT SECTION 3.1. |. The Minimum Guaranteed Rental payable by Tenant cach month during the entire Lease Term shaft be the amount set forth in Section 1.1(j) hereof, which amount shall be payable on or before the first (Ist) day of each month, in advance, at the office of Landlord, or such other place as Landlord may designate, without any prior demand therefor and without any deductions or setoff whatsoever, Should the Lease Term commence on a day other than the first (1st) day of a calendar month, then the Rent (as hereinafter defined) for such first partial month shall be an amount equal to the Rent specified for the first full calendar month for which Minimum Guaranteed Rental is due as herein provided prorated upon i daily basis based upon a thirty (30) day calendar month, and shall be due-and payable on or before the Rent Commencement Date. SECTION 3.2. Percentage Rent, Intentionally deleted, SECTION 3.3, Gross Sales. The term "Gross Sales” as used herein shall be construed to include the entire amount of the actual sales price, whether for cash or otherwise, of all sales of merchandise or services and all other receipts whatsoever of afl business conducted on or from the Demised Premises, including without limitation, mail or telephone orders received or filled at the Demised Premises, and including without ti ion, afl deposits not refunded to purchasers, orders taken, although said orders may be filled elsewhere, and including without tation, sales by any sublessee, concessionaire or licensee or otherwise in the Demised Premises. Each sale, or layavvay, upon installment or credit shall be treated as a sale for the full price in the month during which such sale was made, irrespective of the time when Tenant receives payment from its customer. No deduction shall be allowed for uncollected or uncollectible credit accounts. Said term shaft not include, however, any sums collected and paid out for any sales or direct excise tax imposed by any duly constituted governmental authority nor shall it include the exchange of merchandise between the stores of Tenant, if any, where such exchange of goods or erchandise is made solely for the convenient operdtion of the business of Tenant and nat for the purpose of consummating a sale which has theretofore been made, in or from the Demised Premises and/or for the purpose of depriving Landiord of the benefit ofa sale which otherwise would be made in or from the Demised Premises, nor shall the term include the umount of returns to shippets or manufacturers, nor proceeds from (he sale of trade fixtures. There shall he deductible from Gross Sales the amount of any cash or credit refund made upon any sate in or from the Demised Premises where the merchandise sold, or some part thereof, is thereafter returned by the purchaser and accepted by Tenant. SECTION 3.4. Tenant’s Tax Obligations, (a) ‘Tenant agrees to pay to Landlord Tenant's Pro Rata Share of all Taxes (as hereinafter defined) for each calendar year during the term hereof, With respect to any buildings in the Shopping Center which are separately assessed, at Landtord’s option the taxes and assessments relating thereto shall not be deemed “Taxes” hereunder and in such event, the Moor area of such separately assessed building(s) shall not be included in the denominaer of the fraction used in calculating ‘Tenant’s Pro Rata Share of Taxes, (b) “Taxes” shall mean all taxes and existing and fulure assessments, general and special, and governmental charges of any kind or nature whatsoever, which may be levied or assessed by any lawful authority during or for each calendar year of the term of this Lease against the land, buildings, and improvements comprising the Shopping Center, including without limitation, all (i) ad valorem reat property (axes and assessments (including installments of spccial assessments required to be paid during the calendar year); (ii) other taxes, other charges and impositions imposed by the State or any subdivision thereof which: (A) are in replacement of or in addition to all or any JiNTTIAL TENANT, OY of part of ad valorem taxes as sources of revenue, and (B) are based in whole or in part upon the land and building of which the Demised Premises are a part or any interest therein or the ownership thereof, or the rents, profits or other income therefrom, including, without limitation, income, single business, Iranchise, excise, license, privilege, sales, usc, and occupancy taxes; i) taxes or surcharges of any kind or nature upon, against or with respect to the parking areas or the number of parking spaces in the Shopping Center, and (iv) taxes and/or assessments of any kind or nature upon, against or with respect to the rentals and other charges payable by tenants in the Shopping Center to Landlord derived from the Shopping Center or with respect to Landlord's, or the individuals’ or entities’ which form Landlord. hercin, ownership of the Iand or buildings comprising the Shopping Center. Any costs, expenses and altorneys fees (including the costs of tax consultants) incurred by Landlord in connection with the negotiation for reduction in the assessed yaluation of land, buildings and iinproyements comprising the Shopping Center and any protest or contest of real estate (axes and/or assessments shall be included within the (erm “Taxes.” 5 ©) Tenant's Pro Rata Share of Taxes tevied or assessed for or during the Lease Term hereof shall be paid in monthly instatlnents on or before the first (Ist) day of cach calendar month, in advance, in an amount estimated by Landlord; provided, that in the event Landlord is required uncer any morigage covering the Shopping Center to escrow Taxes, Landlord may, but shall not he obligated t0, ‘use the amount required to be so escrowed as a basis for its estimate of the monthly instalments, due from Tenant hereunder. Upon receipt of all tax bills and assessment bills or in the event filing of returns is required, prior to the due date for Gling such returns, attributable to any calendar year during the lerm hereof, Landlord shall furnish Tenant with a weitten statement of the actual amount of Tenant’s Pro Rau Share of Taxes for such year. In the event no tax bill is available, Landlord may compute the amount of such tax. If the toral amount paid by Tenant under this Section 3.4 for any calendar year during the term of this Lease shall be less than the actuaf amount due from Tenant for such year, as shown on such stateme ‘enant shall pay (o Landlord the difference between the amount paid by Tenant and the actual amount due, such deficiency to be paid within ten (10) days after demand therefor by Landlord; and if the total amount paid by Tenant hereunder for any such calendar year shail exceed such actual amount due from Tenant for such calendar year, such excess may be credited against {he next installment of Taxes due from Tenant to Landlord hereunder, For the calendar years in which this Lease commences and terminates, the provisions of this Section 3.4 shall apply, and Tenant's liability for Tenant's Pro Rata Share of Taxes for such years shall be subject 0 a pro rata adjustment based on the number of days ofsaid calendar years during which the (erm of this Lease is ineffiect. A copy of a tax bill or assessment bill submitted by Landlord to Tenant shall at all times be sufficient evidence of the amount of Taxes assessed or fevied against the property to which stich bill or return relates. Prior to or at the Rent Commencement Date aud from time to time thereafter throughoot the term hereof, Landlord shall notify Tenant in writing of Landlord’s estimate of Tenant’s monthly installments due hereunder, Landlord's and Tenant’s obligations under this Section 3.4 shall survive the expiration or the termination of this Lease. @) If any of the taxes relerred to in Section 22.1 hereof are levied against Landlord or Landlord's property and if Landlord elects to pay the same of if the assessed value of Larullord's property is increased by inclusion ofTenant's Property (as hereinafter defined) placed by Tenant in the Demised Premises and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon demand that part of such taxes relating to Tenant's Praperty. (ce) ‘Tenant may, alone or along with any other tenants of the Shopping Center, at its or their sote cost and expense, in its or their own name(s) dispute and contest any ‘Taxes by appropriate proceedings diligently conducted in good faith, but only after Terrant andl all other tenants, if any, joining with Tenant in such contest have deposited with Landlord the amount so contested and unpaid, or their proportionate shares thereof as the case may be, which shall be held by Landlord without obligation for interest until the termination of the proceedings, at which time the amount(s) deposited shall be applied by Landlord toward the payment of the items held valid (plus any ‘court costs, interest, penalties and other liabilities associated with the proceedings), and Tenant's share of any excess shall be returned to "Tenant, Tenant further agrees to pay to Landlord upon demand Tenant's share (as aniong all tenants who participate in the contest) of all court costs, interest, penalties and other liabilities relating to such procecdings, Tenant hereby indemnifies and agrees to hold Landtord harmless from and against any cost, damage or expense (including attorneys’ fees) in connection with any such proceedings. SECTION 3.5. Payments, ‘Tenant shall pay any and all suins of money or charges required to be paid by ‘Tenant under this Lease promptly when the sume are dus, without any deductions or setoff whatsoever. Tenant's failure to pay any such amounts or charges when due shatl cwry with it the same consequences as Tenant’s failure to pay Rent, Al such amounts or charges shall be payable to Landlord at the place where the Minimum Guaranteed Renial is payable. In the event Tenant fails to pay to Landlord when due any installment of rental or other sum to be paid to Landlord which may become due hereunder, Landlord will incur additional expenses in an amount nof readily ascertainable and which has not been elsewhere provided for between Landlord and Tenant. 1f Tenant shoud fail to pay to Landlord when due any installment of réntal or other sum to be paid hereunder, Tenant shall pay Landlord on demand a late charge equal to the greater of (i) $100.00, or (ii) five percent (5%) of the past due amount. Failure to pay such late charge upon demand therefor shall be an event of defanit hereunder. Provision for such late charge shall be in addition to ail other rights and remedies available to Landlord hereunder or at faw or in equity and shall wot be construed as liquidated damages or limiting Landlord's remedies in any manner. SECTION 3.6. Definition of Rent, The Minimum Guaranteed Rental, Tenant's Pro Rata Share of Taxes, Tenant’s Pro Rata Share of Common Area Expenses, Tenant's Pro Rata Share of Insurance, utility services paid by Tenant (o Landlord, any additional rental, and all other amounts required (o be paid by Tenant to Landlord under this Lease shall be collectively referred to as “Rent.” RTICLE LY. RECORDS AND BOOKS OF ACCOUNT SECTION 4.1. Tenant's Records, Intentionally deleied. SECTION 4.2. Reports by Tenant. Tenant shall furnish to Landlord within thirty G0) days after Landiord’s written request a complete statement, certified by an independent certified public accountant employed by Tenant, showing in all reasonable detail the amount of Gross Sales made by Tenant from the Demised Premises during the preceding calendar year or partial calendar year. Tenant shall require all ofits subtenants, conc jionaires and licensees, if any, to furnish similar statements. Provided however, that Landiord shall not require Tenant to produce the forgoing statement more than twice (2x) in any calendar year. ARTICLE V,_ AUDI SECTION 5.1, Right to Examine Books. Intentionally deleted. SECTION §.2. Audit, Intentionally deleted L INITIAL. LAROLORD TENANT t # C4 ARTICLE VL. IMPROVEMENTS TO DEMISED PREMISES SECTION 6.1. Acceptance of Demisod Premises, Landlord shall procced to construct improvements upon the Demised Premises in compliance with the description of “Landlord's Work" in Exhibit “C” attached hereto, with such minor variations as Landlord may deem advisable, and tender the Demised Premises to Tenant, If Section 2.2 of Part L of Exhibit “C” has been indicated as applicable to this Lease, then the Demised Premises shall be deemed “Ready for Occupancy” as of the date of this Lease. I Scetion 2,1 of Part Taf Exhibit “C” has been indicated as applicable to this Lease, then the Demised Premises shall be deemed to be “Ready for Occupancy” when Landlord cestifies in writing to ‘Tenant that Landtord has substantially completed Landlord's Work, as described in Exhibit “C”. “Substantial Completion” for the purposes of this Section 6,1 and hereinilter shall be as defined in Exhibit “C”. If the Demised Premises are not Ready for Occupancy prior to the Estimated Completion Date as sot forth in Exhibit “C”, Landlord shall not be deemed to be in default hereunder or otherwise Hable in damages to Tenant, nor shall the term of this Lease be affected, except that if for any reason the Demised Premises are not Rendy for Oceupancy within eighteen (18) months {ollowing the Estimated Completion Date, Tenant may at its option terminate this lease by written notice to Landlord delivered within thirty (30) days foltowing the expiration of such cighteen (18) month peri , in which event neither party shall have any further liabilities or obtigations hereunder, except that Landiord shall repay 10 ‘Tenant any prepaid rent or security deposit. Tenant agrees that Landlord shall incor no liability to ‘Tenant by reason of any defect in the Demised Premises, whether apparent or latent, and Tenant's and Landlord's mutual covenants under this Lease are and shall remain independent of each other and Tenant's covenants, including the duty to pay Rent, shall not be affected by any such alleged defect. SECTION 6.2. Changes and Additions. Landlord reserves the right al any time ard from tine to lime (a) to make or permit changes or revisions to the Shopping Center as shown on Exhibit “A” including additions to, subtractions (rom, rearrangements of, alterations of, modifications of or supplements to the building areas, walkways, parking arcas, driveways or other areas, (b) to construet other buildings or improvements in the Shopping Center and to make alterations thereofar additions thereto and 10 build additional storics. on any such building of buildings and (o build adjoining same, and (c) 4o convey portions of the Shopping Center to others for the purpose of constructing thereon other buildings oF improvements, including additions thereto and alterations thereof; provided, however, that no- such changes, rearrangements or other construction shall reduce the parking areas provided by Landlord below the number of parking spaces required by applicable law. Landlord may from time to time substitute for any parking atea shown on Exhibit “A”, other areas or multi-level parking facilities reasonably aceessibte othe Tenants of the Shopping Center. SECTION 6.3, Construction of Demised Premises by Tenant. (a) Tenant hereby agrees, in accordance with the requirements of Exhibit “€, al Tenant's sole cost and expense, t0 (i) prepare its plans and specifications (including, without limitation, fixturing plan) and detiver same to Landtord for Landlord's approval prior to commencement of any work by Tenant; (i) furnish and install rade Fixtures as required by Tenant's approved plans and specifications, which Fixtures shall be new, unless otherwise approved in writing by Landlord; (ii) perforrm the work enumerated on Tenant's approved plans and sp ‘ations and in Exhibit “C” hereto, at ‘Tenant’s sole cost and expense, which work shall comply with Section 9.1(b) hereof; and (iv) furnish and install Tenant's exterior sign, which sign shall be subject to Landlord's prior written approval and shall comply with Landlasd’s siga criteria set forth in Exhibit “D” attached hereto and made a part hereof and Section 9.3 hereof (collectively, “Fenant’s Wark"), When the Demised Premises are Ready for Occupancy, Tenant agrees to accept possession thereof and to proceed with due diligence to perform Tenant's Work and (o install its fixtures, furniture and equipment. Any Tenant Work involving venting, opening, sealing, waterproofing or any altering of the roof shall be performed by Landlord's roofing contractor at “Fenant’s expen: >. Tenant shall provide Landlord with a certificate from Landlord's roofing contractor that all of Tenant's Work involving venting, opening, scaling, waterproofing or in any way altering the roof has been performed in compliance with Landlord's specifications, Tenant hereby holds Landlord harmless from any damage to the Demised Premises, resulting, directly or indirectly, from Tenant's venting, opening, sealing, waterproofing or other altering of the roof unless such a certificate from Landlord's rooting contractor has been del red to Landlord before the date of any such damage. Tenant will be responsible for any costs W restore the roof lo Landlord's specifications should Tenant fail lo provide such roof inspection certificate. In ihe event of any dispute as to work performed or required to be performed by Landlord or Tenant, the certificate of Landlord's architect or engineer shall be: conclusive, Except as otherwise expressly provided in Exhibit “C’” with respect to Punch-List items (as defined in Exhibit “C”), by performing any Tenant Work in he Demised Premises after Substantial Completion of Landlord's Work, Tenant shall be deemed to have accepted the same and to have acknowtedged that the same fully comply with Landlord's covenants and obligations heraunder. Tenant further agrees that, if requested by Landlord, ‘Tenant will furnish Landlord with a written statement that Tenant has accepted the Demised Premises and that Landlord has fully complied with Landlord's covenants and obtigations hereunder, Tenant agrees to furnish Landlord a cerlificate of occupancy from applicable focal authorities on or before the Rest Commencement Date, (by With respect ta any labor perfonned or materials furnished for or at the direction of Tenant at the Demised Premises (if sany), the foltowing shall apply: afl labor performed and materlals furnished shall be at Tenant's sole cost, expense and risk; all material utilized in the performance of Tenant’s Work must be confined to within the Demised Premises; ali trash and construction debris nat Jocated wholly within the Demised Premises must be removed each day from the Shopping Center al the sole cost and expense of Tenant; fabor and materials used in the performance of Tenant’s Work or the installation of Tenant's furniture and fixtures, and in any other work on the Demised Premises performed by Tenant, will be subject to Landiord’s prior written approval. Any such approval shall constitute a revocable ticense authorizing Tenant to permit sich labor and to enter upon the Demised Premises prior to commencement of the Lease Term, subject to the terms of Exhibit “C”, Prior to commencing business in the Demised Premises, Tenant shall deliver to Landlord a copy of a ccrlificate of occupancy for the Demised Premises issted by the appropriate governmental authorities. () With respect to any contra for any such labor ar materials, Tenant acts as principal and not as the agent of Landtord and Landlord hereby expressly disclaims liabi for the cost of labor performed for or materials furnished ta Tenant. Any approval given by Landlord with respect (o Tenant's construction or installation of Tenant’s furniture or fixtures or ather interior work shall not (1) make Landlord tiable or responsible in any say for the condition, quality or function of such matters, Gi) constitute any undertaking, warranty or representation by Landlord with respect to any of such matters, or (ii) imply that the Demised Premises or Tenant's plans and specifications comply with any applicable federal, state or local laws, building codes, ordinances, rules or regulations affecting the Demised Premises. ‘Tenant agrees to indemnify and hold Landlord, the Demised Premises and the Shopping Center harmless from all claims (including ali cosis and expenses of defending against such claims) arising (or alleged to arise) from any act or omission of Tenant or Tenant's agents, employees, contractors, subcontractors, architects, designers, engineers, corisultants, laborers, materialmen or invitees, co arising from any bodily injury or property damage arising (or alleged lo arise) incident to any of Tenant's Work performed with respect to the Demised Premises. «@) ‘With respect to any such labor or matcrials, Tenant shall deliver to Landlord within thirty (30) days after completion of such work, lien releases in recordable form executed by all contractors, subcontractors and materialmen performing such work or INTIAL, TENANT, THY o5 furnishing mater in connection therewith, Tenant shall keep the Demised Premises and all other parts of the Shopping Center free from any and all liens arising out of any work performed, materials furnished or obligations incurved by or for Tenant, and agrees to bond against or discharge any mechanic's or muterialmen’s lien within ten (10) days after written request therefor by Landloré, “Tenant shat! reimburse Landlord for any and all costs and expenses which may be incurred by Landtord by reason of the filing of any such liens and/or the removal of same, such reimbursement to be made within ten (10) days after receipt by Tenant from Landlord of a statement setting, forth the amount of such costs and expenses, The failure of Tenant to pay any such amount to Landlord within said ten (10) day period shail earry with it the same consequences as failure to pay any installment of Rent, SECTION 6,4. Sottlement_of Disputes, It is understood and agreed that any disagreement or dispute which may arise between Landlord and Tenant with reference to the work to be performed with respect to Tenant's Work shall be submitted to Landlord's: architect or engineer, whose decision shall be final and binding on both Landlord and Tenant. SECTION 6.5. Financing. Landlord shall not be obligated to proceed with construction on the Demised Premises or Shopping Center unless and until acceptable financing and a construction contract acceptable to Landlord are obtained. Unless commitments for sich financing have been obtained and all conditions to such commitments (other than construction of the Shopping, Center) shall have been fulfilled within wvelve (12) months following the Estimaied Completion Date, Landlord may so notify Tenant in writing within thirly (30) days following the expiration of such twelve (12) month period, and this Lease shall thercupon cease and terminate and each of the parties hereto shail be released and discharged from all liability and responsibility hereunder. No expenditure of ‘any sum or incurring of any liability by Tenant for merchandise, fixtures, equipment, labor, materials or otherwise shall affect the rights of Landlord hereunder. If Landlord ean obtain aceeptable financing and an acceptable construction contract only upon the basis: of ‘modification of the terms and provisions of this Lease, Landlord shall have the right to cancel this Lease if Tenant refuses (o approve in writing any such modification within fifleen (15) days atter Landford's request therefor, If such right to cancel is exercised, this Lease shall thereafter be null and void, any security deposited hereunder shall be returned to Tenant, and neither party shall have any liability to the other by reason of such cancellation, RTICLE Vii. CONDUCT OF BUSINESS BY TENANT SECTION 7.1. Use of Demised Premises. ‘Tenunt shall use and occupy the Demised Premises during the conlinuance of this Lease solely for the purpose of the Permitted Use set forth in Section 1.1(n) hereaf, and for no other purpose of purposes without the prior written consent of Landlord, which may be granted or withheld in Landlord's sole and absolute discretion. If any governmental Jicense or permit shall be required for the proper ond Jawfub conduct of Tenant’s business or other activity carried on in the Demised Premises or if failure to procure such license ot permit might or woutd, in any way, affect Landlord, the Shopping Center or the Demised Premises, then ‘Tenant, al Tenant's expense, shall duly procure and thereafter maintain such license or permit and submit the same for inspection by Landdtord. ‘Tenant, at Tenant's expense, shall, at al times, comply with the requirements af each such license or permit, SECTION 7.2. Qperation ef Business. (a) Tenant agrees to operate onc hundred percent (100%) of the Demised Premises during the entire Lease Term unless prevented from doing so because of fire, accident, or acts of God, and to conduct its business at all times in a high class and reputable manner, maintaining at afl times a full staff of employees and a full and complete stock of merchandise. ‘Tenant shall install and maintain at all times a display of merchandise in the display windows, if any, of the Demised Premises and shatl keep same well lighted from dusk until 2:00 a.m. every day including Sundays and holidays. (b) Because of the difficulty or impossibility of determining Landlord's damages by way of loss of the anticipated Percentage Rent from other tenants or ozeupants of the Shopping Center, or by way of loss of value of the Shopping Center because of diminished saleability or mortgageability or adverse publicity or appearance by Tenant’s action, should Tenant (3) ful to take possession and open for business in the Demised Premises fully fixtured, stocked and staffed on the Ren! Commencement Date, or (ii) abandon, leave vacant or desert the Demised Premises, or (fii) cease operating or conducting Tenant's business in accordance with the terms of this Section 7.2, or (iv) fail or refuse to maintain business hours on soch days or nights or any part thereof as provided in this Section 7.2, then and in any of such events (hereinafter collectively referred to as “failure to do business”), Landiord shall have the right, in addition to any and all other rights or remedies Landlord may have under this Lease oF al law or in equity, at Landiord's option (i) to collect not only Minimum Guaranteed Rental and all items of additional rent herein reserved, but also further additional rent equal to one-half of the amount of Minimum Guaranteed Rental reserved for the period of Tenant's failure ta do business, computed at a daily rate for each and every day or part thereof during such period and/or (ii) to treat such failure to do business as a default by Tenant hereunder. (c) ‘Tenant acknowledges that (i) Tenant’s obligations under this Section 7.2 have been specifically bargained for and are independent covenants; and (ii) Tenat’s required operation is necessary for Landlord to maintain a proper products, services and specific merchandise mix in the Shopping Center and is integral to the Shopping Center's proper and successful operation, Tenant further acknowledges and agrees that Landlord has riot made any express or implied warranties to'Tenant with respect ta the construction and/or leasing of other space within o adj