CRANE REALTY SERVICES
SHOPPING CENTER LEASE
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THIS LEASE is made this 25th day of January 1995 by and between Xxxxxx
Xxxxx, Receiver under Case #713942, State of California, Superior Court, County
of Orange ("Lessor") and Xxxxxxx Xxxxxxxx, Dba; Futon World ("Lessee").
BASIC LEASE PROVISIONS
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The words and figures set forth in paragraphs A to M, inclusive, are
part of this Lease and relate to the numbered artic1es which follow:
A. Premises.
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The Premises shall consist of that certain area indicated on Exhibit
"A", attached hereto and made a part hereof, consisting of approximately 3,392
square feet of Ground Floor Area plus approximately 877 square feet of Mezzanine
Floor Area for an approximate Total Floor Area of 4,269 square feet, located on
real property and within that certain Shopping Center commonly known as TUSTIN
FREEWAY CENTER and located at 00000 Xxxxxxx Xxxxxx, Xxxxx X, Xxxxxx, XX 00000
("Building and/or Property"). (See Article 1)
B. Permitted Use of the Premises.
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Exclusive sale of Futon furniture along with the non-exclusive sale of
other related furnishings. (See Article 2)
C. Term.
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The term shall be for Sixty (60) months (See Article 3)
D. Commencement Date. February 1, 1995
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Expiration Date. The last day of the month of January 2000. (See
Article 4)
E. Annual Basic Rent.
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$42,000.00 ($3,500.00 per month). (See Article 5)
F. Rental Adjustments. (See Rider No. 1)
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G. Percentage Rent. Intentionally Omitted from Lease.
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H. Security Deposit.
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$5,609.00. Transferred and assigned from that Lease dated June 15, 1992
by and between DEV IX/TUSTIN FREEWAY CENTER ASSOCIATES, A CALIFORNIA LIMITED
PARTNERSHIP, as Landlord and Xxx Xxxxxxxx, as Tenant. (See Article 8)
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I. Lessor's Address for Notices and Payments.
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Crane Realty Services
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000X0000
(000) 000-0000 Fax (000) 000-0000
(See Article 60)
J. Lessee's Address for Notices.
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Xxxxxxx Xxxxxxxx
Futon World
00000 Xxxxxxx Xxxxxx, Xxxxx X
Xxxxxx, XX 00000
(714)-________ or (000) 000-0000 Fax (000) 000-0000
(See Article 60)
K. Broker.
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Crane Realty Services represents both the Lessor and Lessee in this
transaction and both parties agree thereto. (See Article 62)
L. Exhibits.
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The following exhibits are attached hereto and made a part hereof:
Exhibit "A" - Premises Location
Exhibit "B" - Tustin Freeway Master Sign Program
Exhibit "C" - Rules & Regulations
Exhibit "D" - Lessee Improvements
M. Riders.
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The following Riders are attached hereto and made a part hereof:
Rider Nos. 1 - 6
Rider No. 1 - Increases in Basic Rental
Rider No. 2 - ADA Disclosure
Rider No. 3 - Hazardous Waste
Rider No. 4 - Exclusive Use
Rider No. 5 - Option To Lease
Rider No. 6 - Early Lease Termination
Guarantee of Lease
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This Lease is subject to the terms, covenants and conditions herein set forth,
and Lessor and Lessee covenant to perform their respective obligations under
this Lease.
Article 1 - Premises.
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Lessor does hereby lease to Lessee and Lessee hereby leases from Lessor
that certain building space more particularly defined in Paragraph A of the
Basic Lease Provisions and referred to in this Lease as the "Premises" and which
are located in the Shopping Center (herein called the "Building and/or
Property"). The location of the Premises is outlined on the Plot Plan attached
hereto as Exhibit "A" and hereby incorporated herein by reference (it being
understood, however, that such Plot Plan does not constitute a representation of
the measurement of the Premises, and/or Building and/or Property). Lessee agrees
that Lessor may, at any time and from time to time, and additional. property and
improvements to the Shopping Center and that the uses and locations of the
building and parking areas shown on Exhibit "A" are subject to change, as is
hereinafter provided.
Article 2 - Use.
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Lessee shall use the Premises for the specific use set forth in Paragraph B
of the Basic Lease Provisions and shall not use or permit the Premises to be
used for any other purpose.
Article 3 - Term.
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The Lease shall be for the number of years, months and/or days set forth in
Paragraph C of the Basic Lease Provisions from and after the Commencement Date.
Article 4 - Commencement Date and Expiration Date
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Commencement Date shall be the date upon which it is presently estimated
that the Premises will be ready for Lessee's use pursuant to this Lease, as set
forth in paragraph D of the Basic Lease Provisions. If Lessor cannot deliver
possession of said Premises to Lessee at the Commencement Date, this Lease shall
not be void or voidable, nor shall Lessor be liable to Lessee for any loss or
damages resulting therefrom; provided, however, that if the described Premises
are rot available for Lessee's occupancy within ninety (90) days after the
Commencement Date, Lessee may terminate this Lease. In the event that Lessor
shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of strikes, lockouts, labor troubles, inability to
procure materials, failure of power, restrictive government laws or regulations,
riots, insurrections, war or other reasonable like nature not the fault of
Lessor, then any such delay in the delivery of possession of the subject
Premises shall be excused for the period of said delay, and the above-mentioned
ninety (90) day period shall be extended for a period equivalent to the period
of such delay. If Lessee is not in any way responsible for such delay, then all
rent hereunder shall be abated during the period between commencement of said
term and the time when said Premises are substantially complete and Lessor
delivers possession of the Premises to Lessee. There shall be no abatement of
rent if Lessor is delayed in delivering possession of the Premises to Lessee due
to Lessee's failure to comply with any and all of the terms, conditions or
provisions contained hereafter, or if Lessor is delayed in delivering possession
of the Premises to Lessee due to any act or omission of Lessee. Notwithstanding
anything hereinabove to the contrary, it is understood and agreed that no such
delay shall extend the term of this Lease beyond the Expiration Date set forth
in paragraph D of the Basic Lease Provisions.
Article 5 - Rental.
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Lessee shall pay to Lessor Annual Basic Rent for the Premises in the amount
set forth in paragraph E of the Basic Lease Provisions, subject to adjustment as
provided in Article 6 hereof. Said Annual Basic Rent shall be paid in advance on
or before the first day of each and every calendar month during the term hereof
in the amount per month set forth in paragraph E of the Basic Lease Provisions.
If the Commencement Date is other than the first day of a calendar month, the
rent payable hereunder shall be prorated for such partial month. All payments
requiring proration shall be prorated on the basis of a thirty (30) day month.
Any amounts payable by lessee to Lessor under this Lease in addition to the
above-described basic rent shall be deemed additional rent, regardless of
whether any such additional amounts are specifically designated as "additional
rent". However, any such additional amounts shall be deemed additional rent
solely for the purpose of clarifying that if Lessee fails to timely pay any such
additional amounts to Lessor, then Lessor shall have the same rights with
respect to such failure as it has with respect to any failure by Lessee to
timely pay basic rent.
Said rent shall be paid to Lessor without reduction or set-off, in lawful
money of the United States of America, to Lessor or its agent at the address set
forth in paragraph I of the Basic Lease Provisions, or to such other person or
at such other place as Lessor may from time to time designate in writing.
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Article 6 - Adjustment to Minimum Rent ( See Rider No. 1)
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THIS SECTION IS CROSSED OUT AND DELETED
Article 7 - Percentage Rent
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THIS SECTION IS CROSSED OUT AND DELETED
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Article 8 - Security Deposit.
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Lessee has deposited with Lessor the sum set forth in Paragraph H of the
Basic Lease Provisions. Said sum shall be held by Lessor as security for the
faithful performance by Lessee of all the terms, covenants, and conditions of
this Lease to be kept and performed by Lessee during the term hereof. If Lessee
defaults with respect to any provision of this Lease, including, but not limited
to the provisions relating to the payment of rent, Lessor nay (but shall not be
required to) use, apply or retain all or any part of this security deposit for
the payment of any rent or any other sum in default, or for the payment of any
amount which Lessor may spend or become obligated to spend by reason of Lessee's
default, or to compensate Lessor for any other loss or damage which Lessor may
suffer by reason of Lessee's default. If any portion of said deposit is so used
or applied, Lessee shall, within five (5) days after written demand therefor,,
deposit cash with Lessor in an amount sufficient to restore the security deposit
to its original amount and Lessee's failure to do so shall be a default under
this Lease. Lessor shall not be required to keep this security deposit separate
from its general funds, and Lessee shall not be entitled to interest on such
deposit. If Lessee shall fully and faithfully perform every provision of this
Lease to be performed by it, the security deposit or any balance thereof shall
be returned to Lessee (or, at Lessor's option, to the last assignee of Lessee's
interest hereunder) within ten (10) days fol1owing expiration of the lease term.
In the event of termination of Lessor's interest in this Lease, Lessor shall
transfer said deposit to Lessor's successor in interest.
Article 9 - Additional Charges.
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REAL PROPERTY TAXES. (a) Lessee agrees to pay, as additional rent, all real
property taxes and assessments levied or assessed upon the Premises and the
underlying real property and all improvements thereon during the term hereof.
Any tax or assessment relating to a fiscal period, a part of which is not
included within the term of this Lease, shall be prorated so Lessee shall pay
only that portion thereof which relates to the tax periods included within the
term of this Lease. In the event that said real property taxes and assessments
are not separately levied or assessed against the Premises and the underlying
land, Lessor shall prorate the real property taxes and assessments levied or
assessed against either the Shopping Center or any smaller tax parcel in which
the Premises are situated, at Lessor's sole discretion, to the Premises in any
reasonable manner. An allocation based upon a proration or information obtained
from the County Assessor, or upon construction costs, or an allocation based
upon the ratio that the total floor area within the Premises bears to the total
floor area within the relevant tax parcel or parcels, as to that portion of such
tax or assessment allocable to building improvements, and based on the ratio
between the number of square feet of floor area within the Premises to the
number of square feet of land area covered by the relevant tax statement or
statements, as to that portion of such tax or assessment allocable to land,
exclusive of building improvements, or any combination thereof, shall be cleared
to be a reasonable allocation for the purposes of this Article.
Lessee agrees to pay, as additional rent, any tax or excise on rent or
other tax, however described, that is levied or assessed by the State of
California, or any political subdivision thereof, against Lessor on account of
or measured by the rentals and/or other charges payable to Lessor hereunder. If
this lease is a sublease, Lessee further agrees to pay, as additional rent,
Lessee's pro rata share of any such tax or excise on rent or other tax paid by
Lessor based on the rental and other charges payable by Lessor, based on the
ratio between the floor area in the Premises to the floor area in the Shopping
Center, or the portion thereof demised to Lessor. If, under the laws of the
State of California, or any political subdivision thereof, at any tine during
the term hereof, the methods of taxation shall be altered so as to impose in
lieu of current methods for the assessment and taxation of real property, in
whole or in part, taxes based on other standards or in lieu of any increase
therein, such tax shall be deemed to be a real property tax and assessment
levied or assessed upon the Premises and the underlying real property for the
purposes of this Lease. Nothing contained in this Section shall obligate Lessee
to pay any net income, inheritance, estate, gift or transfer tax which nay be
assessed or levied against Lessor. Lessee shall make the payments required by
this Article directly to Lessor pursuant to Article 9 (e) below.
LESSOR INITIAL /S/
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(b) INSURANCE. Lessee agrees to pay, as additional rent, Lessee's pro rata
share of all insurance premiums paid by Lessor for or with respect to the
building and improvements with which the Premises are insured. Said insurance
shall include all insurance premiums for public liability and property damage
insurance and for fire and extended coverage insurance (which shall include, if
avai1able from Lessor's insurer, a waiver of subrogation in favor of Lessee) and
rental loss and vandalism and malicious mischief endorsements and any other
insurance or endorsements that Lessor deems necessary on or with respect to the
use and occupancy of the Premises and such other buildings for Lessor's benefit.
Said insurance premiums for the purposes of this Article shall be reasonably
apportioned to the Premises in accordance with the total floor area of the
Premises as it relates to the total floor area of the building or buildings with
which the Premises are insured. Lessee shall make the payments required by this
Article directly to Lessor pursuant to Article 9 (e) below.
(c) COMMON AREA EXPENSES. Lessee agrees to pay, as additional rent,
Lessee's pro rata share of the following costs:
(1) All real estate taxes including assessments and all insurance costs
with respect to and all costs to maintain, manage, repair, and replace the
common areas of the Shopping Center, including, but not limited to, restriping,
lighting costs, police and fire protection (but Lessor shall not be required to
provide or be responsible for police or fire protection), all utility costs,
landscaping, gardening, sweeping and cleaning, real property management fees and
charges, depreciation or rental of equipment, sound and music systems, if any,
and personnel used in such operation. The term common areas as used herein shall
mean those portions of the Shopping Center which have at the time in question
been designated and improved for common use by or for the benefit of more than
one tenant or occupant of the Shopping Center, including, without limitation,
parking areas, landscaped areas, access and perimeter roads, truck passage ways
and loading platforms, driveways, service corridors and stairways, sidewalks,
elevators, directory equipment, washrooms, drinking fountains, and like areas so
designated by Lessor.
(2) All costs to supervise and administer the common areas, including
labor, payroll and taxes. Said costs shall include such fees as nay be paid to a
third party in connection with same and shall in any event include a fee to
Lessor to supervise and administer same in an amount equal to fifteen percent
(15%) of the total costs of (1) above.
(3) Any parking charges, utilities surcharges, regulatory fees or any other
costs levied, assessed or imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by any
governmental authority in connection with the use or occupancy of the Premises
or the parking facilities serving the Premises.
Lessee's pro rata share of the above costs shall be based upon the ratio
between Lessee's floor area and the total floor area from time to tine
constructed and occupied within the Shopping Center. Lessee shall make the
payments required by this Article directly to Lessor pursuant to Article 9 (e)
below.
(d) EXTERIOR BUILDING MAINTENANCE. Lessee agrees to pay, as additional
rent, Lessee's pro rata portion of all costs incurred by Lessor pursuant to
Article 9(e) below for painting and maintaining the exterior of the building
within which the Premises are situated (the "Building") including roof repairs,
based on the ratio that the floor area within the Premises bears to the total
floor area of the Shopping Center. Lessee shall make the payments required by
this Article directly to Lessor pursuant to Article 9 (e) below.
(e) Payment of Additional Charges. Upon the commencement of the lease term,
Lessor shall submit to Lessee a statement of the anticipated charges described
in Sections 9 (a) through 9 (d) above (hereinafter collectively referred to as
"Adjustments") and of Lessee's pro rata share thereof for the period between
such commencement and the following January and Lessee shall pay such charges,
based upon such estimate, monthly in advance, in equal monthly payments,
concurrently with the payment of minimum rent. Lessee shall continue to make
said monthly payments until notified by Lessor of a change thereof. Lessor may,
at any time, increase or decrease such estimated monthly payments in the event
that Lessor reasonably determines that such estimated payments are incorrect or
the percentage to be allocated to Lessee is adjusted.
By April 1 of each year Lessor shall endeavor to give Lessee a statement
showing the total Adjustments for the prior calendar year and Lessee's allocable
share thereof, prorated from the commencement of rental. In the event the total
of the monthly payments which Lessee has made for the prior calendar year be
less than the Lessee's actual share of such Adjustments than Lessee shall pay
the difference in a lump sum within ten (10) days after receipt of such
statement from Lessor and shall concurrently pay one-twelfth (1/12) of such
difference for each monthly payment theretofore made in the then calendar year
and the amount of monthly payments which are then calculated as monthly
Adjustments based on the prior year's experience nay be appropriately adjusted
by Lessor. Any overpayment by Lessee shall be credited towards the monthly
Adjustments next coming due. The actual Adjustments for the prior year shall be
used for purposes of calculating the anticipated monthly Adjustments for the
then year with actual determination of such Adjustments after each calendar year
as above provided; excepting
LESSOR INITIAL /S/
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that in any year in which resurfacing or repainting of building exterior is
contemplated Lessor shall be permitted to include the anticipated cost of same
as part of the estimated monthly Adjustments. Even though the term has expired
and Lessee had vacated the Premises, when the final determination is made of
Lessee's share of said Adjustments for the year in which this Lease terminates,
Lessee shall immediately pay any increase due over the estimated Adjustments
previously paid and, conversely, any overpayment made shall be immediately
rebated by Lessor to Lessee.
(f) FLOOR AREA. The term "Floor Area" as used herein means the actual
number of square feet of floor space (exclusive of any space on mezzanines, in
basements or on exterior balconies unless used for the sale or display of
merchandise) within the exterior faces of building walls and measured from the
center of common walls, but excluding any such space (i) not intended by Lessor
for the exclusive occupancy by lessees, (ii) outside sales areas whether or not
roofed and/or exposed, (iii) truck ramps and/or docks, trash storage and
compaction areas, box and bottle yards, whether or not roofed and/or enclosed,
and (iv) space within any kiosk building. For the purpose of making any
proration or allocation to be made under this Article 9, Lessor nay conclusively
assume that the floor area of the Premises is the estimated floor area specified
in Paragraph A of the Basic Lease Provisions.
(g) EXCLUSIONS. In the event and to the extent that any lessee in the
Shopping Center or any owner of any portion of the Shopping Center pays any
Adjustment with respect to that portion of the Shopping Center leased or owned
by such party, rather than an allocable share of any Adjustment, Lessor may, in
such event and to such extent, exclude the square footage of floor leased or
owned by such party for the purposes of computing Adjustments pursuant to this
Article 9. Lessor may, at Lessor's option, specially allocate parking lot
lighting charges to Lessees of the Shopping Center including Lessee, remaining
open after operating hours for the parking lot established by Lessor, on any
reasonable basis.
Article 10 - Uses Prohibited.
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Lessee shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which will in any way increase the existing
rate of or affect any fire or other insurance upon any building within the
Shopping Center or any of its contents, or cause a cancellation of any insurance
policy covering any such building or any part thereof or any of its contents,
without the consent of Lessor and the amount of such increase, if any, shall be
paid by Lessee to Lessor upon demand. Lessee shall not do or permit anything to
be done in or about the Premises which will in any way obstruct or interfere
with the rights of other Lessees or occupants of the Shopping Center or injure
or annoy them or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Lessee cause, maintain or permit
any nuisance in, on or about the Premises. Lessee shall rot commit or allow to
be committed any waste in or upon the Premises.
Article 11 - Compliance with Law
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Lessee shall not use the Premises, or permit anything to be done in or
about the Premises, which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated.. Lessee shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances arid governmental rules, regulations
or requirements now in farce or which any hereafter be in force and with the
requirements of any board of fire underwriters or other similar bodies now or
hereafter constituted relating to or affecting the condition, use or occupancy
of the Premises, excluding structural changes to related to or affected by
Lessee's improvements, acts or use of the Premises. The judgement of any court
of competent jurisdiction or the admission of Lessee in any action against
Lessee, whether Lessor be a party thereto or not, that Lessee has violated any
law, statute, ordinance or governmental rule, regulation or requirement, shall
be conclusive of that fact as between the Lessor and Lessee. Lessee has made its
own investigation as to the governmental laws, rules arid regulations applicable
to the Premises and/or to the uses to be made of the Premises by Lessee and
agrees that Lessor is to have no responsibility in connection therewith. Lessee
shall pay all license fees, levies or other governmental charges assessed or
imposed by law or ordinances upon the Premises and/or Lessee's business.
Article 12 - Alterations and Additions.
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Lessee shall not make or allow to be made any alterations, additions or
improvements to or of the Premises or any part thereof including without
limitation, any change in the appearance or color of Lessee's store front,
without the written consent of Lessor first had and obtained. Any alterations,
additions or improvements to or of said Premises, including but not limited to,
wall covering, paneling, air conditioning and heating equipment, and built-in
cabinet work, but excepting movable furniture and trade fixtures, shall at once
became a part of the realty and belong to the Lessor and shall be surrendered
with the Premises. In the event Lessor consents to the making of any
alterations, additions or improvements to the Premises by Lessee, the same shall
be made by Lessee at Lessee's sole cost and expense. Upon the expiration or
sooner termination of the terms hereof, Lessee shall, upon written demand by
Lessor, given at least thirty (30) days prior to end of the term, at Lessee's
sole cost and expense, forthwith and with all due diligence, remove any
alterations, additions, or improvements made by Lessee,
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designated by Lessor to be removed, and Lessee shall, forthwith and with all due
diligence, at its sole cost and expense, repair any damage to the Premises
caused by such removal. At least fifteen (15) days prior to the commencement of
any work or construction of any alterations, additions, replacements or
substantial repairs in or about the Premises, Lessee shall notify Lessor and/or
any party designated by Lessor to receive such notice in writing of the intended
work and expected data of commencement thereof, and shall, for and an behalf of
Lessor, prepare and post such notices of nonresponsibility and other similar
notices as are permitted by 1aw. Lessor may also post any such notices for
itself and any other party or parties entitled to the protection afforded by
virtue of any such notice. Any work performed by Lessee to or upon the Premises
pursuant to this Article shall be under the supervision of a competent architect
or competent licensed structural engineer and made in accordance with plans and
specifications with. respect thereto, which shall be approved in writing by
Lessor before the commencement of work. All such work must be done in good and
workmanlike manner strictly in accordance with the laws and ordinances relating
thereto. In performing any such work, Lessee shall rot obstruct the access to
the premises of any other Lessees in the Shopping Center.
Lessor reserves the right to alter and/or remodel the roof, exterior walls
including canopy, sign can and parapet of the Premises and/or the sidewalks
adjacent to the Premises in connection with any exterior remodeling of the
building of which the Premises are a portion, at Lessor's sole cost and expense;
and in such event, to require that Lessee alter and/or replace its exterior
building sign with a new sign approved by Lessor.
Article 13 - Repairs.
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(a) LESSEE'S REPAIRS. By entry hereunder, Lessee shall be deemed to have
accepted the Premises, including without limitation the hearing and air
conditioning system as being in good, sanitary order, condition and repair.
Lessee shall, at Lessee's sole cost and expense, keep the Premises and every
part thereof in good condition and repair (except as hereinafter provided with
respect to Lessor's obligations) including without limitation, the maintenance,
replacement and repair of any storefront, doors, window casements, glazing,
hearing and air-conditioning system (when there is an air-conditioning system,
Lessee shall obtain and maintain in full force and effect at all times during
the term of this lease a service contract for repairs amid maintenance of said
system, said maintenance contract shall conform to the requirements under the
warranty, if any, on said system and shall be in a form approved and with a
company designated by lessor, unless Lessor elects to obtain such a contract, in
which event the cost of such contract shall be included as an Adjustment under
Article 9 - upon request, Lessee shall deposit with Lessor reasonably
satisfactory evidence that any such contract to be maintained by Lessee has been
obtained by Lessee and then is in full force and effect, including without
limitation, a copy of such contract), plumbing pipes, electrical wiring and
conduits. Lessee shall, upon the expiration or sooner termination of this Lease
hereof, surrender the Premises to the Lessor in good condition, broom clean,
ordinary wear and tear and damage from causes beyond the reasonable control of
Lessee excepted. Lessee shall also sweep and maintain in a neat and sightly
condition the sidewalks adjacent to the Premises and any exterior trash
enclosure provided for Lessee's use. Any damage to adjacent premises caused by
Lessee's use of the Premises shall be repaired at the sole cost and expense of
Lessee. Lessee hereby waives any right to make repairs at the expense of Lessor
pursuant to Section 1942 of the Civil Code of the State of California and all
rights provided for by Section 1941 of said Civil Code.
(b) LESSORS REPAIRS. Notwithstanding the provision of Article 13 (a)
hereinabove, Lessor shall repair and maintain the structural portions of the
Building, and the exterior walls (except Lessee's store front) and roof of the
Building, provided that in the event such maintenance and repairs are caused in
part or in whole by the act, neglect, fault or omission of any duty by the
Lessee, its agents, servants, employees, invitees, or any damage caused by
breaking and entering into the Premises, Lessee shall pay to Lessor the
reasonable cost of such maintenance and repairs. Lessor shall not be liable for
any failure to make any such repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Lessor by Lessee, which period shall
not be less than thirty (30) days. Except as provided in Article 26 hereof,
there shall be no abatement of rent and no liability of Lessor by reason of any
injury to or interfere with Lessee's business arising from the making of any
repairs, alterations or improvements in or to any portion of the Building or the
Premises or in or to Building or the Premises or in or to fixtures,
appurtenances and equipment therein. Lessee waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
(c) LIENS. Lessee shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work performed,
material furnished or obligations incurred or to have been incurred by or under
Lessee. Lessor may require, at Lessor's sole option, that Lessee provide to
Lessor, at Lessee's sole cost and expense, a lien and completion bond in an
equal to one and one-half (1-1/2) tines the estimated cost of any improvements,
additions, or alterations in the Premises which the Lessee desires to make1,
issued by a surety satisfactory to Lessor, to insure Lessor against any
liability for mechanics' and materialmen's liens and to insure completion of
such work.
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Article 14 - Assignment and Subletting.
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(a) LESSOR'S CONSENT REQUIRED. Lessee shall not, either voluntarily or by
operation of law, assign, sell, encumber, p1edge or otherwise transfer all or
any part of Lessee's leasehold estate hereunder, or permit the Premises to be
occupied by anyone other than Lessee or Lessee's employees or sublet the
Premises or any portion thereof, without Lessor's prior written consent in each
instance. Consent by Lessor to the or more assignments of this Lease or to one
or more sublettings of the Premises shall not operate to exhaust Lessor's rights
under this Paragraph. The voluntary or other surrender of this Lease by Lessee
or a mutual cancellation hereof shall not work a merger, and shall at the option
of Lessor, terminate all or any existing subleases or subtenancies or shall
operate as an assignment to Lessor of such subleases or subtenancies. If Lessee
is a corporation which, under the then current guidelines published by the
Commissioner of the Corporations of the State of California, is not deemed a
public corporation, or is an unincorporated association or partnership, the
transfer, assignment or hypothecation of any stock or interest in such
corporation, association or partnership in the aggregate in excess of
twenty-five percent (25%) shall be deemed an assignment within the meaning and
provisions of this Article. Lessee agrees to reimburse Lessor for Lessor's
reasonable accounting and attorney's fees incurred in connection with the
processing and documentation of any such requested assignment, subletting,
transfer, change of ownership or hypothecation of this Lease or Lessee's
interest in and to the Premises, together with a minimum fixed fee equal to the
greater of FIVE HUNDRED DOLLARS ($500.00) or one-half (1/2) of the then minimum
monthly rent.
(b) REQUEST FOR CONSENT. If Lessee desires at any tine to assign this lease
or to sublet tie Premises or any portion thereof, it shall first notify Lessor
of its desire to do so and shall submit in writing to Lessor (i) the name of the
proposed sublessee or assignee; (ii) the nature of the proposed sublessee or
assignee's business to be carried on in the Premises; (iii) the proposed
sublease or assignment and all of the contracts, instruments and agreements
relating to the proposed sublease or assignment; and (iv) such reasonable
financial and other information as Lessor any request concerning the proposed
sublessee or assignee.
(c) LESSOR'S RIGHTS. At any tine within thirty (30) days after Lessor's
receipt of the information specified in Article 14 (b) above, Lessor may by
written notice to Lessee elect to (i) consent to the subletting or assignment
upon the terms and to the sublessee or assignee proposed; (ii) refuse to give
its consent; (iii) sublease the Premises or the portion thereof so proposed to
be subleased by Lessee or take an assignment of Lessee's leasehold estate
hereunder upon the same terms (excluding terms relating to the use of Lessee's
name or the continuation of Lessee's business) as those offered to the proposed
sublessee or assignee, as the case may be; or (iv) terminate this Lease
effective as of the date such proposed assignment or sublease would have become
effective, but not more than sixty (60) days nor less than thirty (30) days
following Lessor's receipt of such information, in its entirety, in the case of
an assignment, or as to the portion (including all) of the Premises so proposed
to be subleased, with a proportionate abatement in the rent payable hereunder
effective upon the last to occur of (1) the date that Lessee installs a
partition wall separating such portion of the Premises proposed to be subleased
and the ba1ance of the Premises satisfying Lessor's reasonable requirements for
such work, which work shall be so completed by Lessee within sixty (60) days of
such election by Lessor, or (2) the effective date of such termination, in the
case of a sublease. Lessee agrees that Lessor nay refuse to consent to any
proposed assignment for any reason or reasons deemed sufficient by Lessor
without regard to any objective standard of reasonableness and may consent to a
proposed assignment subject to such conditions as Lessor, in its sole
discretion, deems appropriate, including without limitation the requirement that
the assignees assume in writing the obligations of Lessee under this Lease. If
Lessor does not elect alternative (iii) or (iv) above following Lessee's request
that Lessor consent to a sublease, Lessor's consent to any such proposed
sublease shall not unreasonably be withheld. In the event this Lease is
terminated pursuant to this article, the rents and other charges payable
hereunder shall be prorated and paid to and from the date of such termination.
If lessor consents to such assignment or subletting, Lessee nay, within ninety
(90) days after the date of Lessor's consent, enter into a valid assignment or
subletting, of the Premises or portion thereof upon the terms and conditions
described in the information required to be furnished by Lessee to Lessor
pursuant to Article 14 (b) above, or under other terms not more favorable to
Lessee; provided, however, that any material change in such terms shall be
subject to Lessor's consent as provided in this Article 14. Failure of Lessor to
exercise any option set forth in clauses (i) through (iv) above within such
thirty (30) day period shall be deemed refusal of Lessor to consent to the
proposed subletting or assignment.
(d) NO RELEASE. No subletting or assignment, even with the consent of
Lessor,, shall relieve Lessee of its obligations to pay the rent and to perform
all of the other obligations to be performed by Lessee hereunder. The acceptance
by Lessor of any payment due hereunder from any other person shall not be deemed
to be a waiver by Lessor of any provision of this Lease or to be a consent to
any assignment or subletting.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-7-
(e) PAYMENTS BY LESSEE. In the event Lessor consents to a sublease, Leases
shall pay Lessor the excess if any, of the rent reserved in such sublease over
the allocable portion of the rent for that portion of the Premises subject to
such sublease, as determined by Lessor, in any reasonable manner For the
purposes of this Article, the rent reserved in such sublease shall be deemed to
include any lump sum payment or other consideration given to Lessee in
consideration for such sublease. Lessee shall, pay this additional rent together
with the monthly installments of rent due hereunder, in advance, based upon such
excess sublease rental payable during each calendar month. In the event that any
assignment, sublease or other occupancy proposed by Lessee would result in the
Shopping Center, or any portion thereof other than the Premises, being
reassessed by the County Assessor at a higher full cash value than would
otherwise be permissible under Article XIII-A of the California Constitution,
Lessor may also condition its consent thereto upon Lessee and the proposed
assignee, sublessee or occupant agreeing to pay that portion of the ad valorem
tax levied or assessed against the Shopping Center from and after and resulting
from such reassessment and higher full cash value.
(f) SUBLEASE RENTALS. If a default under this Lease should occur while the
Premises or any portion thereof are then subleased, Lessor, in addition to any
other remedies provided herein or by law or in equity, may at its option have a
receiver appointed to collect, or itself collect, directly from the sublessee
under which sublease all rent or other consideration then due or becoming due to
Lessee from such sublessee and apply such rent or other consideration against
any sums due to Lessor by Lessee hereunder; and Lessee hereby authorizes and
directs any such sublessee to make such payments of rent or other consideration
directly to Lessor upon receipt of notice from Lessor. For this purpose, Lessor
has authorized and empowered, on behalf of Lessee, to endorse the name of Lessee
upon any check, draft or other instrument payable to Lessee evidencing payment
of such rent or other consideration and to receive and apply the proceeds
therefrom in accordance with the terms hereof. No direct collection by Lessor
from any such sublessee shall be construed to constitute a novation or a release
of Lessee or any guarantor of Lessee from the further performance of its
obligations under or in connection with this Lease. Lessor shall not be liable
to Lessee for any failure or inability to collect such rents or other charges
from any such sublessee.
Article 15- Hold Harmless.
--------------------------
Lessee shall indemnify and hold harmless Lessor against and from and hereby
waives any claims against and agrees that Lessor shall not be liable for any and
all claims, demands, liabilities and/or obligations arising from the use or
occupancy of the Premises by or under Lessee or from the conduct of Lessee's
business or from any activity, work, or other things done, permitted or suffered
by the Lessee in or about the Premises or from any state or condition of the
Premises or the adjacent sidewalks, and shall further indemnify and hold
harmless Lessor against and from any and all claims, demands, liabilities and/or
obligations arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any act or negligence of the Lessee, or any officer, agent,
employee, guest, or invites of Lessee, and from all, costs, attorney's fees, and
liabilities incurred in or about the defense thereof or any action or proceeding
brought thereon and in any case any action or proceeding be brought against
Lessor by reason thereof, Lessee upon notice from Lessor shall defend the same
at Lessee's expense by counsel reasonable satisfactory to Lessor. Lessee as a
material part of the consideration to Lessor hereby assigns all risk of damage
to property or injury to persons in, upon or about due Premises, from any cause
other than Lessor's active negligence, and Lessee hereby waives all claims in
respect thereof against Lessor.
Lessor or its agents shall not be liable for any loss or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building or from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place resulting from dampness or any other cause
whatsoever, unless caused by or due to the active negligence of the Lessor, its
agents, servants or employees. Lessor or its agent shall not be liable for
interference with the light, air, or for any latent defect in the Premises.
Lessee shall give prompt notice to Lessor in case of casualty or accidents in
the Premises.
Article 16 - Insurance.
-----------------------
(a) LIABILITY INSURANCE. Lessee shall, at Lessee's expense, obtain and keep
in force during the term of this Lease a policy of comprehensive public
liability insurance insuring Lessor and Lessee against any Liability arising out
of the ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in the amount of not less than
$500,000.00 for injury or death of one person in any one accident or occurrence
and in the amount of not less than $1,000,000.00 for injury or death of more
than one person in any one accident or occurrence. Such insurance shall further
insure Lessor and Lessee against liability for property damage of at least
$50,000.00. The limit of any such insurance shall not, however, limit the
liability of the Lessee hereunder. All such policies shall be written as primary
policies not contributing with and not in excess of coverage which Lessor may
carry and shall provide for payment of loss to Lessor notwithstanding any act or
negligence of Lessee which might otherwise result in forfeiture of said
insurance.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-8-
Not more frequently than each three (3) years, if in the opinion of Lessor's
lender or of the insurance broker retained by Lessor, the amount of public
liability and property damage insurance coverage required by this Article at
that time is not adequate, Lessee shall increase the insurance coverage as
required or recommended by elder Lessor's Lender or Lessor's insurance broker.
(b) PROPERTY INSURANCE. Lessee agrees to procure and maintain fire and
extended coverage insurance in an amount equal to at least ninety percent (90%)
of the replacement cost of Lessee's fixtures, signs, equipment and personal
property located in, on or about the Premises. Lessee shall procure an
appropriate clause in or an endorsement on any such policy of insurance pursuant
to which the insurance company waives subrogation or consents to a waiver of the
right of recovery against Lessor, and Lessee does hereby agree that it shall not
make any claim against or seek to recover from Lessor any loss or damage to its
property or the property of others, resulting from any hazard insured against by
such policy.
(c) INSURANCE POLICIES. All Insurance to be obtained by Lessee pursuant to
this Article 16 shall be provided by Companies rated A-15 or better in "Best's
Insurance Guide", or, in the event Best's Insurance Guide", is no longer
published,, any comparable rating in any similar guide selected by Lessor.
Lessee shall deliver to Lessor copies of the insurance policies required by this
Article or certificates evidencing the existence and amount of such insurance
with loss payable clause satisfactory to Lessor. No policy shall be cancellable
or subject to reduction of coverage without thirty (30) days' prior notice to
Lessor, and each such certificate shall so provide. On or before ten (10) days'
prior to the expiration of any such insurance policy, Lessee will deliver to
Lessor written notification in the form of a receipt or other similar document
from the applicable insurance company that said policy has been renewed, or
deliver certificates of coverage or the policies from another insurance company
to evidence such coverage.
Article l7 - Utilities.
-----------------------
Lessee shall pay, as additional rent, for all water, gas, heat, light,
power, sewer charges, telephone service and all other services and utilities
supplied to the Premises, together with any taxes thereon. If any such services
are rot separately metered to Lessee, Lessee shall pay a reasonable proportion
to be determined by Lessor of all charges jointly metered with other premises.
Lessee shall. also pay for trash removal services provided to the Premises,
unless such services are provided to the Shopping Center as a whole and the cost
of such service included as an Adjustment.
Article 18 - Personal Property Taxes.
-------------------------------------
Lessee shall pay, or cause to be paid, before de1inquency any and all taxes
levied or assessed and which become payable during the during the term hereof
upon all Lessee's leasehold improvements, equipment, furniture, fixtures, and
any other personal property located in the Premises. In the event any or all of
the Lessee's leasehold improvements, equipment, furniture, fixtures and other
personal property shall be assessed and taxed with the real property, Lessee
shall pay to Lessor its share of such taxes within ten (10) days after delivery
to Lessee by Lessor of a statement in writing setting forth the amount of such
taxes applicable to Lessee's property.
Article 19 - Rules and Regulations.
-----------------------------------
Lessee shall faithfully observe and comply with such reasonable rules and
regulations that Lessor may from time to time promulgate and/or modify relating
to the use and operation of the Shopping Center and/or any adjustment properties
which Lessor may from time to time make available for use by Lessee and/or the
protection of the improvements upon such properties. The rules and regulations
shall be binding upon Lessee upon delivery of a copy of then to Lessee. Lessor
shall not be responsible to Lessee for the nonperformance of any said rules and
regulations by any other lessees or occupants. Such rules arid regulations shall
apply and be enforced as to all lessees in the Shopping Center on a uniform
basis.
Article 20 - Holding Over.
--------------------------
If Lessee remains in possession of the Premises or any part thereof after
the expiration of the term hereof with the express written consent of Lessor,
such occupancy shall be a tenancy from month to month at a rental in the amount
of the last monthly minimum rent increased by fifty percent (50%), plus all
other charges payable hereunder, and upon all the terms hereof applicable to a
month to month tenancy, which tenancy shall be terminable by Lessor upon ten
(10) days' notice. Should Lessee hold over the Premises without the express
written consent of Lessor, Lessee shall indemnify and hold Lessor harmless from
loss or liability resulting from such holding over, including, without
limitation, any claims made by any succeeding lessee.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-9-
Article 21 - Entry by Lessor.
-----------------------------
Lessor reserves, and shall at any and all times have, the right for itself
and its designees to enter the Premises to inspect the same, to submit said
Premises to prospective purchasers or lessees, to post notices of
nonresponsibility, to repair the Premises and any portion of the Building that
Lessor may deem necessary or desirable, without abatement of rent, and may for
that purpose erect scaffolding and other necessary structures there reasonably
required by the character of the work to be performed, always providing that the
entrance to the Premises shall not be blocked thereby, and further providing
that the business of the Lessee shall not be interfered with unreasonably.
Lessee hereby waives any claim for damages or for any injury or improvements to
or interference with Lessee's business, any loss of occupancy or quiet enjoyment
of the Premises, and any other loss occasioned thereby. For each of the
aforesaid purposes, Lessor shall at all tines have and retain a key with which
to unlock all of the doors in, upon and about the Premises, excluding Lessee's
vaults, safes and files, and Lessor shall have the right to use any and all
means which Lessor may deem proper to open said doors in an emergency, in order
to obtain entry to the Premises without liability to Lessee except for any
failure to exercise due care for Lessee's property an any entry to the Premises
obtained by Lessor by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forceable or unlawful entry into,
or a detainer of, the Premises, or an eviction of Lessee from the Premises or
any portion thereof.
Article 22 - Lessee's Default.
------------------------------
The occurrence of any one or more of the following events shall constitute
a default and breach of this Lease by Lessee.
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as and when due, where such failure
shall continue for a period of three (3) days after written notice thereof by
Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than described in (a) or (b) above, where such failure shall continue for
a period of ten (10) days after written notice thereof by Lessor to Lessee;
provided, however, that if the nature of Lessee's default is such that more than
ten (10) days are reasonably required for its cure, then Lessee shall not be
deemed to be in default if Lessee commences such cure within said ten (10) day
period and thereafter diligently prosecutes such cure to completion.
(d) The making by Lessee of any general assignment or general arrangement
for the benefit of creditors; or the filing by or against Lessee of a petition
to have lessee adjudged a bankrupt, or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of
petition filed against Lessee, the same is dismissed within sixty (60) days); or
the appointment of a trustee or a receiver to take possession of substantially
all of Lessee's assets located at the Premises or of Lessee's interest in this
Lease, there possession is not restored to Lessee within thirty (30) days; or
the attachment, execution or other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's interest in this Lease,
where such seizure is not discharged in thirty (30) days.
Article 23 - Remedies in Default.
---------------------------------
In the event of any such default or breach by Lessee, Lessor may at any
tine thereafter, with or without notice or demand and without limiting Lessor in
the exercise of a right or remedy which Lessor any have by reason of such
default or breach:
(a) Immediately terminate Lessee's right to possession of the Premises, and
repossess the same by summary proceedings or other appropriate action, and
Lessor shall thereupon be entitled to receive from Lessee all damages specified
in California Civil Code Section 1951.2(a), including (1) the worth at the tine
of award of the unpaid rent which had been earned at the time of termination (2)
the worth at the time of award of the amount by which the unpaid rent which
would have been earned exceeds the amount of such rental loss that Lessee proves
could have been reasonably avoided; (3) the worth at the tine of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (4) any other amount necessary to compensate Lessor for
all the detriment approximately by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom. All of such damages to the extent specified in
Section 1951.2(b) shall be computed by allowing interest at the rate of ten
(10%) per annum; or
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-10-
(b) Continue this Lease in effect without terminating Lessee's right to
possession even though Lessee has breached this Lease and abandoned the Premises
and to enforce all, of Lessor's rights and remedies under this Lease, including
the right to recover the rent as it becomes due under this Lease; provided,
however, that Lessor may at any time thereafter elect to terminate this Lease
for such breach by modifying Lessee in writing that Lessee's right to possession
of the Premises has been terminated; or
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the State of California.
Lessor's failure to take advantage of any default or breach of covenant on
the part of Lessee shall not be or be construed to be a waiver thereof, nor
shall any custom or practice which may grow up between the parties in the course
of administering this Lease he construed to waive or to lessen the right of
Lessor to insist upon the performance by Lessee of any term, covenant or
condition hereof, or to exercise any rights given him on account of any such
default. A waiver of a particular breach, or default, shall not be deemed to be
a waiver of the same or any subsequent breach or default. The acceptance of rent
hereunder shall not be, or be construed to be, a waiver of any term, covenant or
condition of this Lease or breach thereof.
For the purposes of this Article 23, the term "rent: shall be deemed to be
the minimum rent and all other sums required to be paid by Lessee pursuant to
the terms of this Lease, including, without limitation, percentage rent and
Adjustments. In computing damages or rental due under this Lease, the value of
percentage rent for any period subsequent to the termination of this Lease or of
Lessee's right of possession shall be an amount per year equal to one-third
(1/3) of the total percentage rent paid by Lessee for the last three (3) full
lease years immediately preceding such termination and if less than three (3)
full years have lapsed, such value shall be an amount per year equal to the
average yearly percentage rent theretofore paid by Lessee.
The voluntary or other surrender of this Lease by Lessee, or a mutual
cancellation of this Lease, shall, at Lessor's option, either not result in a
merger and shall operate as an assignment to Lessor of any and all subleases
made by Lessee, or shall terminate all such existing subleases.
Artic1e 24 - Default by Lessor.
-------------------------------
Lessor shall not be in default unless Lessor fails to perform obligations
required of Lessor within a reasonable rime, but in no event later than thirty
(30) days after written notice by Lessee to Lessor and to the holder of any
first mortgage or deed of trust covering the Premises whose name and address
shall have therefore been furnished to Lessee in writing, specifying wherein
Lessor has failed to perform such obligation; provided, however, that if the
nature of Lessor's obligation is such that more than thirty (30) days are
required for performance then Lessor shall not be in default if Lessor commences
performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion. In no event shall Lessee have the right to
terminate this Lease as a result of Lessor's default and Lessee's remedies shall
be limited to damages and/or an injunction.
Article 25 - Cure of Lessee's Default.
--------------------------------------
Should Lessee fail to pay and discharge, when due and payable any lien or
claim for labor or materials employed or used in, or any claim for labor or
materials employed or used in, or any claim for damages arising out of the
repair, alteration, maintenance and use of the Premises, or should Lessee fail
to provide or evidence the provision of any insurance policy as required by this
Lease, or should Lessee fail to fully pay or perform any sun to be paid or any
covenant or agreement to be performed by Lessee, as provided for in this Lease,
after ten (10) days' written notice from Lessor, then Lessor may, at its option
and without waiving or releasing Lessee from any of Lessee's obligation
hereunder, pay any such Lien, claim, or charge, or settle or discharge any
action therefore or satisfy any judgement thereon, or obtain any such insurance,
or pay any such sum or perform any such covenant or agreement. All costs,
expenses and other sums incurred or paid by Lessor in connection therewith,
together with interest at the rate of ten percent (10%) per annum on such costs,
expenses, and sums from the date incurred or paid by Lessor, shall be deemed to
be additional rent hereunder and shall be paid by Lessee with and at the same
time as the next installment of minimum rent hereunder, and any default therein
shall constitute a breach of the covenants and conditions of this Lease.
Article 26 - Reconstruction.
----------------------------
In the event that the Premises, or any portion thereof, shall be damaged by
fire, explosion, windstorm or any other casualty, then Lessor shall repair such
damage (other than damage to glass, which shall be the responsibility of Lessee
as rapidly as reasonably possible, allowing sufficient time for Lessor to settle
with any applicable insurer, and Lessee shall be entitled to an equitable
abatement of the fixed minimum rent, based upon the extent to which the damage
and Lessor's making of such repairs shall interfere with the business carried on
by Lessee in the Premises, unless Lessor shall establish that such damage was
occasioned by the negligence of Lessee, its agents or employees.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-11-
If by reason of fire or casualty damage to buildings in the Shopping
Center, any Lessee or other occupant occupying more than ten thousand (10,000)
square feet of building area in the Shopping Center cancels its lease or
abandons its premises, then Lessor nay cancel this Lease by giving written
notice to Lessee within sixty (60) days after said Lessee or occupant occupying
use then ten thousand (10,000) square feet of building area cancels its lease or
abandons its premises.
Notwithstanding any other provision of this Article to the contrary, if the
Premises shall be damaged by any casualty which Lessor is otherwise obligated to
repair, and such damage shall be to the extent of more than twenty-five percent
(25%) of the value of the Premises at the tine of such damage, or should such
damage occur during the last twelve (12) months of the term of this lease, or
should such damage be caused by a casualty not covered by standard fire and
extended coverage insurance and any other insurance carried by Lessor pursuant
to Article 9 and should Lessee, not elect to repair such uninsured damage at
Lessee's sole cost and expense, then Lessor may, in any of such events, at its
election notice to Lessee given within ninety (90) days after such damage,
terminate this Lease effective as of the date of the giving of such notice.
Lessor shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs or replacements of any leasehold
improvements, fixtures or other personal property of Lessee. All insurance
proceeds except those allocable to these items, shall be paid to Lessor.
During the period of any restoration and repair of casualty damage by
Lessor, Lessee agrees to continue the operation of its business on the Premises
to the extent reasonably practical and to forthwith replace or fully repair all
exterior signs, trade fixtures, equipment display cases or other installations
originally installed by Lessee.
Article 27- Eminent Domain.
---------------------------
If more than twenty percent (20%) of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, either party hereto shall have the right, at its option, within sixty
(60) days after said taking, to terminate this lease upon thirty (30) days'
written notice. If this Lease is not terminated by reason of any taking or
appropriation under the power of eminent domain, this Lease shall terminate as
to the portion of the Premises taken or appropriated and Lessor, to the extent
of any severance damages available to Lessor, shall repair and restore the
remaining portions of the Premises and the mini nun rent thereafter to be paid
shall be equitably relived following the completion of such restoration and
repair by Lessor. Lessor shall be entitled to any and all awards and/or
settlement which may be given and Lessee shall have no claims against Lessor for
the value of any unexpired term of this Lease, except that Lessee shall be
entitled to that portion of any such award, if any, allocated to the taking of
or damage to Lessee's fixtures and equipment. If, by reason of any exercise of
the power of eminent domain, any Lessee or occupant occupying more than ten
thousand (10,000) square feet of building area in the Shopping Center cancels
its lease or abandons its premises, then Lessor may cancel this lease by giving
written notice to the Lessee within sixty (60) days after said Lessee or after
said Lessee or occupant occupying more than ten thousand (10,000) square feet of
building area cancels, its lease or abandons its premises.
Article 28 - Lessee's Statement.
--------------------------------
Lessee shall at any tine and from time to time upon not less than three (3)
days' prior written notice from Lessor execute, acknowledge and deliver to
Lessor a statement in writing, (a) certifying that this Lease is unmodified and
in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease as so modified is in full force and
effect), and the date to which the rental and other charges are paid in advance,
if any, and (b) acknowledging that there are not, to Lessee's knowledge, any
uncured defaults on the part of the Lessor hereunder or specifying such default
if any are claimed, and (c) setting forth the date of commencement of rents and
expiration of the term hereof. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the real property
or leasehold estate of which the Premises are a part.
Article 29 - Parking and Common Areas.
-------------------------------------
Lessee, for the use and benefit of Lessee, its agents, employees,
customers, licensees and sublessees, shall have the nonexclusive right in common
with Lessor and others authorized by Lessor to use the portion of the Shopping
Center from time to tine established by Lessor as common and parking areas
during the term of this Lease for ingress, egress and automobile parking;
provided that the condemnation or other taking, restriction or regulation by any
public authority, or sale in lieu of condemnation, of any or all, of such
parking areas shall rot constitute a violation of this covenant. Lessor reserves
the right to change the entrances, exits, traffic lanes and the boundaries and
locations of such parking and common area or areas from that shown on the
attached Exhibit "A" and to redesignate such parking and common areas as
building area or such building areas as parking and common areas; provided,
however, that anything to the contrary notwithstanding contained in this
sentence, said common and parking area or areas shall, subject to governmental
action, at all tines provide at least three parking spaces for each one thousand
(1,000) square feet of floor area.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-12-
Lessee shall also have the right to use such parking areas, driveways and
traffic ailes for ingress, egress and parking purposes as Lessor may from tine
to time provide for Lessee's use, in common with others, upon, over and across
property adjacent to the Shopping Center, provided that Lessor reserves the
right to regulate, restrict, alter and/or terminate, in whole or in part, such
right, at any time during the term of this Lease.
Lessor shall keep the automobile parking and common areas within the
Shopping Center in a neat, clean and orderly condition, and shall repair any
damage to the facilities thereof, but all expenses in connection with said
automobile parking and common areas shall be charged and prorated in the manner
as set forth in Article 9 (c) hereof. Lessor shall not be liable for any
interference with Lessee's business resulting from Lessors maintenance, repair,
alteration and/or reconstruction of the automobile parking and common areas.
Lessee, in the use of said common and parking areas, agrees to comply with
such reasonable rules, regulations and charges for parking as the Lessor may
adopt from time to time for the orderly and proper operation of said common and
parking area. Such rules may include but shall not be limited to the following:
(1) The restricting of employee parking to a limited, designated area or areas
or the prohibition of employee parking within the Shopping Center, (2) the
regulation of the removal, storage and disposal of Lessee's refuse and other
rubbish; (3) the access routes and hours for delivery to the Premises by trucks
and trailer; and (4) the restriction of designated areas for drive-through
banking, savings, restaurant or other drive-through facilities, promotional
and/or seasonal sales activities and/or loading, trash and other storage areas,
whether or not such storage areas are roofed and/or enclosed. All common and
parking areas shall be subject to the exclusive control and management of Lessor
or such other persons or nominees as Lessor may designate to exercise such
management or control, in whole or in part, in Lessor's place and stead. If
requested by Lessor, Lessee will furnish Lessor with license numbers of the
vehicles of Lessee and its concessionaires and their respective officers, agents
and employees. If Lessee or its concessionaires or their respective employees
fail to park their cars in designated parking areas, then Lessor may charge
Lessee TEN DOLLARS ($10,00) per day for each day or partial day per car parked
in any areas other than those designated; provided, however, Lessor agrees to
give Lessee written notice of the first violation of this provision and Lessee
shall have two (2) days thereafter within which to cause the violation to be
discontinued; and if not discontinued within said two (2) day period then the
TEN DOLLAR ($10.00) per day fine shall commence. After notice of such first
violation, no prior notice of any subsequent violation shall be required. All
amounts due under the provisions of this Paragraph shall be payable by Lessee
within ten (10) days after demand therefor as additional rent hereunder. Lessee
hereby authorizes Lessor to tow away from the Shopping Center any car or cars
belonging to Lessee, its employees or its concessionaires or their respective
employees, and/or to attach violation stickers or notices to such cars.
Lessor shall have the right to close, if necessary, all or any portion of
the common areas to such extent as any in the opinion of Lessor, or Lessor's
counsel, be Legally necessary to prevent a dedication thereof or the accrual of
any rights of any person or of the public therein; to close temporarily all or
any portion of the common areas to discourage noncustomer use; to use portions
of the common areas while engaged in making improvements or repairs or
alterations to the Shopping Center, an to do and perform such other acts in, to,
and with respect to, the common areas as in the use of good business judgement
Lessor shall determine to be appropriate for the Shopping Center.
Lessee shall not cause or permit distribution in or at approaches to common
areas of handbills, circulars, advertisements or papers, or other matters which
if discarded would tend to litter such areas, and Lessee shall not discard
sweeping in the parking or common areas but will dispose of the same in refuse
cans or other appropriate containers. In no event shall Lessee park or permit to
be parked within the common area or the streets adjacent to the Shopping Center,
cars, truck or other vehicles for advertising purposes which display or employ
advertising devises.
In the event that any party other than Lessor is required to maintain the
automobile parking and common areas within the Shopping Center, or any portion
thereof, pursuant to any written agreement or instrument, Lessor shall not be
deemed to be in default hereunder and Lessee shall rot be permitted to pursue
any remedy under this Lease or at law or in equity for any failure of such party
to maintain the automobile parking and common areas within the Shopping Center,
or any portion thereof, required to be maintained by such party, provided that
Lessor agrees to take reasonable action to enforce its remedies under any such
agreement or instrument to perform or to require that such maintenance be
performed within any reasonable period of time after Lessor shall receive
written notification from Lessee that such maintenance is not being performed.
Article 30 - Signs. ( See Exhibit "B")
-------------------
Lessee shall obtain necessary permits and install an exterior building sign
on the Premises satisfying Lessor's requirements at a location designated by
Lessor prior to the commencement of the term of this Lease. Except for said
sign, Lessee shall not affix or maintain upon the exterior of the Premises,
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-13-
including glass panes and supports of show windows and doors, any signs,
advertising plackets, names insignias, trademarks, descriptive material or any
other such like item or items except such as shall have first received the
written approval of Lessor as to size, type, color, location, copy, nature and
display qualities. Anything to the contrary in this Lease notwithstanding,
Lessee shall not affix any sign to or otherwise use or penetrate the roof of the
Premises nor install any exterior plumbing fixtures, shade or awning, nor make
any exterior decoration or painting or change to the store front of the
Premises.
Article 31 - Displays - Lights.
-------------------------------
Lessee may not display or sell merchandise or allow grocery carts, vending
machines, or other similar devices within the control of Lessee to be stored or
to remain outside the defined exterior walls and permanent doorways of the
Premises. Lessee further agrees not to install any exterior lighting, amplifiers
or similar devices or use in or about the Premises any advertising medium which
may be heard or seen outside the Premises, such as flashing lights,
searchlights, loudspeakers, phonographs or radio broadcasts. Lessee shall
maintain all show windows in the Premises in a neat, clean and sightly condition
and shall keep Lessee's windows and exterior marquee lights on during such
nighttime hours as Lessor may from time to time designate.
Article 32 - Auctions.
----------------------
Lessee shall not conduct or permit to be conducted any sale by auction in,
upon or from the Premises, whether said auction be voluntary, involuntary,
pursuant to any assignment for the payment of creditors or pursuant to any
bankruptcy other insolvency proceeding.
Article 33 - Hours of Business.
-------------------------------
Subject to the provisions of Article 26 hereof, Lessee shall continuously
during the entire term hereof conduct and carry on Lessee's business in the
Premises and shall keep the Premises open for business and cause Lessee's
business to be conducted therein during the usual business hours of each and
every business day as is customary for businesses of like character in the
County in which the Premises are located to be open for business; provided,
however, that this provision shall not apply if the Premises should be closed
and the business of Lessee temporarily discontinued therein on account of
strikes, lockouts or similar causes beyond the reasonable control of Lessee or
closed for not more than three (3) days out of respect to the memory of any
deceased officer or employee of Lessee, or the relative of any such officer or
employee. Lessee shall keep the Premises adequately stocked with merchandise,
and with sufficient sales personnel to care for the patronage, and to conduct
said business in accordance with sound business practice.
In the event of breach by Lessee of any of the conditions in this Article
contained, Lessor shall have, in addition to any and all remedies herein
provided, the right at its option to collect not only the minimum rent herein
provided, but additional rent at the rate of one thirtieth (1/30) of the minimum
rent herein provided for each and every day that Lessee shall fail to conduct
its business as herein provided; said additional rent shall be deemed to be in
lieu of any percentage rent that might have been earned during such period of
Lessee's failure to conduct its business as herein provided.
Article 34 - Competition.
-------------------------
During the first two (2) years of the term of this Lease, Lessee shall not
directly or indirectly engage in any similar or competing business within a
driving radius of three (3) miles from the outside boundary of the Shopping
Center. Should Lessee thereafter engage in any such competing business within
such driving radius, the gross sales from such other business shall be included
with the gross sales from the Premises for the purposes of computing percentage
rental pursuant to Article 7 above and all obligations of Lessee to report and
maintain records with respect to gross sales from the Premises and all rights of
Lessor under Article 7 shall apply equally to the gross sales and Lessee's
records and reporting of gross from such other business.
Article 35 - Trade Fixtures.
----------------------------
All trade fixtures and equipment installed by Lessee in the Premises shall
be new and of good quality. So long as Lessee shall not be in default hereunder,
all trade fixtures and equipment installed by Lessee in the Premises, shall
remain the personal property of Lessee and may be removable by Lessee at any
time prior to the termination of this Lease. The expiration of the term of this
Lease or upon any earlier termination hereof, Lessee shall remove at its own
expense all trade fixtures, equipment and personal property upon the Premises,
provided that if Lessee is in default, Lessor may prohibit such removal by
notice in writing to Lessee. If, at the end of the lease term or earlier
termination as is herein provided, Lessee has left any merchandise, furniture,
equipment, trade fixtures or other personal property on or about the Premises,
Lessor may give Lessee written notice to remove such property. In the event such
property is not removed within ten (10) days of the sending of said notice,
Lessor nay dispose of
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-14-
said property in any manner whatsoever and Lessee hereby waives any claim or
right to said property or any proceeds derived from the sale thereof. Any damage
to the Premises resulting from the installation or removal of any of said trade
fixtures or equipment shall be repaired by or at the cost of Lessee.
Article 36 - Nonrepresentations as to Building Site.
----------------------------------------------------
The designation of any type of use or tenancy with respect to any building
site on the attached plot plan of the Shopping Center is not intended as a
covenant or representation that said building site shall be constructed or
devoted to such a use or tenancy nor shall Lessor be responsible or liable to
Lessee should any other lessee fail to open or to continue to be open for
business during the term of this Lease.
Article 37 - Parking Surcharge.
-------------------------------
In the event that a parking surcharge or regulatory fee, however
designated, is imposed upon or levied or assessed against the Shopping Center or
on, or account of, the parking spaces thereon by any governmental agency or
authority pursuant to the "Clean Air Act" or any plan implemented pursuant to
such Act, or any enactment amenatory or in substitution thereof, Lessee agrees
that Lessor may, at Lessor's option and Lessor shall not be obligated so to do,
institute a system of pay parking and, in such event, the proceeds of such
system will be used to pay any such surcharge or fee and the cost of
implementing and administering such system.
Article 38 - Relationship of Parties.
-------------------------------------
The relationship of the parties hereto is that of Lessor and Lessee, and it
is expressly understood and agreed that Lessor does not in any way or for any
purpose become a partner of Lessee in the conduct of Lessee's business or
otherwise, or a joint venturer with Lessee, and that the provisions of this
Lease and the agreements relating to rent payable hereunder are included solely
for the purpose of providing a method whereby rental payments are to be measured
and ascertained.
Article 39 - Change in Lessor's Interest.
-----------------------------------------
Lessee acknowledges that Lessor may not in the future own or control all of
the Shopping Center and agrees that Lessor shall not be deemed to be in default
hereunder and that Lessee may not pursue any remedies under this Lease or at law
or in equity for any violation of this Lease occurring by virtue of any act or
omission on or with respect to any portion of the Shopping Center, other than
the Premises, not owned or controlled by Lessor; provided that Lessor agrees,
promptly upon receipt of written notice from Lessee of the occurrence of any act
or omission, to promptly perform all acts reasonably required in order to cure
such default. In the event of any sale or exchange of the Premises by Lessor and
the assignment by Lessor of this Lease, in the event Lessor's interest in the
Premises is otherwise terminated and this Lease continues in effect, Lessor
shall be and is hereby entirely freed and relieved of all obligations under any
and all of its covenants and obligations contained in or derived from this Lease
and arising out of any act, occurrence or omission relating to the Premises or
this Lease occurring after the consummation of such sale or exchange and
assignment or other termination of such interest.
Article 40 - Merchant's Association.
------------------------------------
Lessee agrees to become a member of, and participate fully in, and remain
in good standing in any association (in the event such an association is
formed), organized for lessees occupying the Shopping Center, and Lessee will
abide by the regulations of such association; provided that lessees occupying
not less than sixty percent (60%) of the floor area in the Slopping Center are
members of the association. Default in payment of dues or assessments shall be
treated in similar manner to default in rent with like rights of Lessor at its
option to the collection thereof on behalf of the association.
Article 41 - Force Majeure.
---------------------------
If either party, except as otherwise herein specifically provided, shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of delay and
the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay. In the event of any existence between
this Article and Exhibit "B" of this Lease, the provisions of this Article 41
shall prevail. The provisions of this Article shall not operate to excuse Lessee
from the prompt payment of basic rent, additional rent or any other payments
required by the terms of this Lease.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-15-
Article 42 - Plats and Riders.
------------------------------
Clauses, plats, riders and addendums if any, affixed to this lease are a
part thereof.
Article 43 - Authorization.
---------------------------
If a corporation executes this Lease as Lessee, Lessee shall promptly
furnish Lessor certified corporate resolutions attesting to the authority of the
officer to execute this Lease on behalf of such corporation or in the
alternative, Lessee shall deliver this lease executed by two duly authorized
officers of Lessee's Corporation. Any parties executing this Lease on behalf of
Lessee hereby represent and warrant their full authorization and authority to
execute this Lease on behalf of Lessee hereby represent and warrant their full
authorization and authority to execute this Lease am behalf of Lessee and that
this Lease shall be binding and enforceable against Lessee.
Article 44 - Joint Obligation.
------------------------------
If there be more than one Lessee the obligations hereunder imposed shall be
joint and several.
Article 45 - Marginal Headings.
-------------------------------
The headings and titles to the Articles of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
Article 46 - Time.
------------------
Time is of the essence of this Lease and each and all of its provisions in
which performance is a factor.
Article 47 - Successors and Assigns.
------------------------------------
The covenants and conditions herein contained, subject to the provision as
to assignments, apply to and bind the heirs, successors, executors,
administrators and assigns of the parties hereto.
Article 48 - Recordation.
-------------------------
Neither Lessor nor Lessee shall record this Lease, but a short form
memorandum hereof any be recorded it the request of Lessor.
Article 49 - Quiet Possession.
------------------------------
Upon Lessee paying the rent reserved hereunder and observing and performing
all of the covenants, conditions and provisions on Lessee's part to be observed
and performed hereunder, Lessee shall have quiet possession of the Premises for
the entire term hereof, free of interference by Lessor or those claiming by or
under Lessor, subject, however, to all of the provisions of this Lease.
Article 50 - Late Charges.
--------------------------
Lessee hereby acknowledges that late payment by Lessee to Lessor of minimum
rent or other sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which any be imposed upon Lessor by
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any, sum due from Lessee shall not be received by Lessor
or Lessor's designee within ten (10) days after written notice that said amount
is past due, then, Lessee shall pay to Lessor a late charge equal to ten percent
(10%) of such overdue amount, plus any attorney's fees incurred by Lessor by
reason of Lessee's failure to pay rent and/or other charges when due hereunder.
The parties hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Lessor will incur by reason of the late payment by
Lessee. Acceptance of such late charges by the Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder. Lessor's election not to include a demand for the payment of any such
late charge in any notice to pay rent or quit shall not constitute a waiver by
Lessor of its right to collect any such late charge.
Article 51 - Prior Agreements.
------------------------------
This Lease contains all of the agreements between the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreements or understanding pertaining to any such matters shall be effective
for any purpose. No provision of this Lease may be amended or added to except an
agreement in writing signed by the parties hereto or their respective successors
in interest. This Lease shall not be effective or binding on any party until
fully executed by both parties hereto.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-16-
Article 52 - Inability to Perform.
----------------------------------
This Lease and the obligations of Lessee hereunder shall not be affected or
impaired because Lessor is unab1e to fulfill any of its obligations hereunder or
is delayed in doing so, if such inability or delay is caused by reason of
strike, labor troubles, acts of God, or any other cause beyond the reasonable
contro1 of Lessor.
Article 53 - Partial Invalidity.
--------------------------------
Any provision of this Lease which shall prove to be invalid, void, or
illegal shall in no way affect, impair or invalidate any other provision hereof
and such other provision shall remain in full force and effect.
Article 54 - Cumulative Remedies.
---------------------------------
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
Article 55 - Choice of Law.
---------------------------
This Lease shall be governed by the laws of the State of California.
Article 56 - Legal Expenses.
----------------------------
Lessee shall pay to Lessor all amounts for costs (including reasonable
attorneys' fees) incurred by Lessor in connection with any breach or default by
Lessee under this Lease or incurred in order to enforce or interpret the terms
or provisions of this Lease. Such amounts shall be payable upon demand. In
addition, if any action shall be instituted by either of the parties hereto for
the enforcement or interpretation of any of its rights or remedies in or under
this Lease, the prevailing party shall be entitled to recover from the losing
party all costs incurred by the prevailing party in said action and any appeal
therefrom, including reasonable attorneys' fees to be fixed by the court
therein. Said costs and attorneys' fees shall be included as part of the
judgement in any such action. For purposes of this provision, in any unlawful
detainer or other action or proceeding instituted by Lessor based upon any
default or alleged default by Lessee hereunder, Lessor shall be deemed the
prevailing party if (a) judgement is entered in favor of Lessor or (b) prior to
trial or judgment Lessee pays all or any portion of the rent and charges claimed
by Lessor, eliminates the condition(s), ceases the act(s), condition(s) or
omission(s) claimed by Lessor to constitute a default by Lessee hereunder.
Further, should Lessor be made a party to any litigation between Lessee and any
third party, then Lessee shall pay all costs and attorneys' fees incurred by or
imposed upon Lessor in connection with such litigation. The obligation for legal
fees and expenses, hereunder, shall extend to any claim or action filed by
Lessor as a result of a bankruptcy or insolvency proceeding filed by or on
behalf of Lessee.
Article 57 - Annexation.
------------------------
Lessor reserves the right from time to time to annex additional real
property in the Shopping Center by giving written notice of such annexation to
Lessee, and, in such event, the term "Shopping Center" as used herein shall mean
both the real property shown on the attached Exhibit "A" and any such additional
property.
Article 58 - Subdivision.
-------------------------
Lessee acknowledges that Lessor may attempt to obtain the recordation of a
parcel or final map dividing the Shopping Center into lots or parcels and agrees
to join in executing any certificates or other documents required in connection
therewith; provided that this Article shall not be construed as obligating
Lessee to incur any expense or to agree to incur any expense in connection
therewith.
Article 59 - Subordination, Attornment.
---------------------------------------
Upon request of the Lessor, Tenant will in writing subordinate its rights
hereunder to the lien of any mortgage, or deed of trust, to any bank, insurance
company or other lending institution, now or hereafter in force against the
Premises, and to all advances made or hereafter to be made upon the security
thereof.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made by
the Lessor covering the Premises, the Lessee shall. attorn to the purchaser upon
any such foreclosure of sale and recognize such purchaser as the Lessor
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-17-
under this Lease. In the event that this lease is a sublease, Lessee further
agrees to attorn to any lessor of Lessor upon a termination of Lessor's
leasehold estate.
The provisions of this Article to the contrary notwithstanding, and so long
as Lease is not in default hereunder, this Lease shall remain in full force and
effect for the full term hereof, notwithstanding the foreclosure of any deed
trust or mortgage to which Lessee has subordinated this Lease.
Article 60 - Notices.
---------------------
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All, notices
and demands by the Lessor to the Lessee shall be sent by registered or certified
mail, postage prepaid, addressed to the Lessee at the address set forth in
Paragraph I of the Basic Lease Provisions, or to such other place as Lessee may
from time to time designate in a notice to the Lessor. All notices and demands
by the Lessee to the Lessor shall be sent by registered or certified mail,
postage prepaid, addressed to the Lessor at the addressees set forth in
Paragraph I of the Basic Lease Provisions, and to such other persons or places
as the Lessor may from time to time designate in a notice to the Lessee.
Article 61- Restriction on Rental Increase.
-------------------------------------------
In the event that at any time during the term of this Lease, any
governmental law, rule or regulation prohibits or postpones, in whole or in
part, any increase in the minimum rent or other sums payable by Lessee hereunder
to be made pursuant to this Lease, then, and in either of such events, such
increase shall be made to the maximum extent permissible by law at the time
provided in this Lease, and/or at any or times thereafter such increase, or any
portion thereof, any lawfully be made and any such increase in the minimum rent,
or any portion thereof, or other sums payable hereunder, or portions thereof,
the payment of which has been so prohibited or postponed, shall thereafter
become due and payable to the maximum extent and at the earliest time or times
permitted by law.
Article 62 - Broker.
--------------------
The parties recognize as the broker(s) who negotiated this Lease the party
or parties whose name or names are stated in paragraph K of the Basic Lease
Provisions, and agree that Lessor shall be solely responsible for the payment of
brokerage commissions to said broker(s) and that Lessee shall have no
responsibility therefor unless written provision to the contrary has been made.
Lessees represents and warrants that it has not dealt with or employed any
broker or agent as its representative in the negotiation for or the obtaining of
this Lease other then the broker, if any, listed in said paragraph K as its sole
and exclusive agent (if any), and agrees to indemnify and hold harmless Lessor
against all costs or liability for compensation claimed by any broker or agent
(other than the broker, if any, listed in said paragraph K as it sole and
exclusive agent (if any) and all attorneys' fees expended in connection
therewith.
Article 63 - Limited Liability.
-------------------------------
Notwithstanding anything in this Lease to the contrary, from and after the
commencement date of the term of this Lease, Lessee agrees that it shall look
solely to the estate and property of Lessor in the land and buildings comprising
the Shopping Center and, subject to prior rights of any holder of any mortgage
or deed of trust, for the collection, satisfaction or enforcement of any
judgement (or other judicial or administrative process) requiring the payment of
money or the performance or nonperformance of certain acts by Lessor in the
event of any default or breach by Lessor with respect to any of the terms,
covenants and conditions of this Lease to be observed and/or performed by
Lessor, and not other assets of Lessor shall be subject to levy, execution or
other procedures for the satisfaction of any remedy, judgement, or order of
Lessee.
Article 64 - Entire Agreement.
------------------------------
This Lease constitutes the entire agreement between Lessor and Lessee and
all prior negotiation, representations and understandings are merged into and
superseded by this Lease. No amendment or modification of this lease shall be
binding unless in writing and signed by the parties hereto.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-18-
IN WITNESS WHEREOF the parties hereto have executed this Lease as of the
day and year first above written.
THIS LEASE SHALL NOT BECOME EFFECTIVE UNTIL EXECUTED BY LESSOR AND DELIVERED TO
LESSEE AND THE SUBMISSION OF THIS FORM OF LEASE TO LESSEE BY LESSOR, OR LESSOR'S
AGENT, DOES NOT CONSTITUTE AN OFFER TO LEASE. NO EMPLOYEE OR AGENT OF LESSOR OR
ANY PERSON WITH WHOM LESSEE MAY HAVE NEGOTIATED THIS LEASE HAS ANY AUTHORITY TO
MODIFY THE TERMS HEREOF OR TO MAKE ANY AGREEMENTS, 1~EPRESENTATIONS, OR PROMISES
UNLESS THE SAME ARE CONTAINED HEREIN OR ADDED HERETO IN WRITING.
LESSOR: Xxxxxx Xxxxx, Receiver, under Case Xx. 000000, Xxxxx xx Xxxxxxxxxx,
xxxxxxxx Xxxxx, Xxxxxx of Orange
BY: /s/ Xxxxxx Xxxxx DATE: 2-8-95
--------------------------- -------------------
Xxxxxx Xxxxx, Receiver
LESSEE: Xxxxxxx Xxxxxxxx, Dba; Futon World
BY: /s/ Xxxxxxx Xxxxxxxx DATE: 2-7-95
--------------------------- -------------------
Xxxxxxx Liebrarid
-19-
Exhibit "A"
-----------
Premises Location
&
Project Site Map
[picture of premises location here]
LESSOR INITIAL /S/
LESSEE INITIAL /S/
Exhibit "B"
TUSTIN FREEWAY CENTER
MASTER SIGN PROGRAM
I. INTRODUCTION:
The purpose of the attached criteria is to establish sign standards
necessary to balance maximum tenant identification within an overall harmony of
design for the project.
The criteria has been designed to give tenants flexibility in personalizing
their own identity and to allow for creativity in sign design. However, since
deviations from the criteria would be on injustice to all other tenants who
comply, conformance to the criteria will be strictly enforced. In the interest
of the center, any installed non-conforming or unapproved signs shall be brought
into conformance at the expense of the tenant.
II. SIGNAGE:
A. General Requirements:
1. All work to be performed by a professional sign company. Said sign
company must be in possession of a current contractors license to perform such
work. (C-45 License).
2. Each tenant shall submit or cause to be submitted to the Landlord
for approval before fabrication at least two copies of detailed drawings
indicating the location, size, layout, design and color of the proposed signs,
including all lettering and/or graphics. These drawings should be submitted
along with plot plan and elevation.
3. All permits required by the City of Tustin for signs and their
installation must be obtained by the tenant or the tenant's representative prior
to installation.
4. All signs must comply with the City of Tustin zoning, building, and
electrical codes.
5. All signs shall be reviewed and approved in writing by the Landlord
for conformance with this criteria and overall design quality as well as
tenant's lease agreement. Approval or disapproval of sign submittal based on
aesthetics of a design shall remain the sole right of the Landlord.
6. All building signs shall be constructed and installed at tenant's
expense. Tenant is also responsible for the maintenance of building signs.
7. Co-operative tenant advertising, signing or seasonal event signing
shall be considered special event signs and require separate sign permits from
the City of Tustin.
8. In the event a tenant vacates his premises, the tenant shall provide
a blank panel for any monument sign occupied by the tenant. Tenant shall also be
responsible for the removal of any wall sign, with all holes being repaired and
repainted to match the building exterior.
9. Wording of signs shall not include the product sold except as part
of the tenant name, insignia, or dba.
10. Tenant's sign contractor shall repair any damage to any work caused
by his actions. Incomplete repairs become the responsibility of the tenant.
11. Upon notice of the City of Tustin or the Landlord, a tenant shall
be required to repair or refurbish their own structure, sign face and/or sign
illumination within seven (7) working days.
l2. No animated, flashing, audible off-premise or vehicle signs are
permitted.
13. No exposed lamps or tubes will be permitted.
14. Window signing will be allowed, per Landlord's approval.
15. All conduits, raceways, transformers, junction boxes, openings in
the building surface, etc. shall be concealed. If canopy architecture prohibits
concealing hardware, it shall be enclosed in a manner consistent with quality
fabrication practices, and painted-out to match the building color. The method
of installation shall be approved by the City of Tustin and the Landlord.
16. Tenant's contractor shall completely install and connect sign
display including primary wiring, from Tenant's electrical sub-panel to J-box at
sign location. J-box will be installed by the Landlord.
17. All exterior letters exposed to the weather will not be directly
flush mounted to wall surface, but will be pegged-off (1/2") typically, while
maintaining a level, consistent right angle to the wall surface. They shall be
neatly in a watertight condition and all bolts, fastenings, and clips shall be
of hot- dipped galvanized iron, stainless steel, or other non-corrosive
material.
18. Internal illumination to be a minimum of 30 mill-amp neon gas
system, labeled in accordance with the "National Board of Fire Underwriters
Specifications".
19. No labels or other identification will be permitted on the exposed
surface of the sign except those required by local ordinance.
20. The tenant shall be fully responsible for the operations of his
sign contractor and shall indemnify, defend and hold harmless the Landlord and
his agents from damages or liabilities resulting from his contractor's work.
-1-
Exhibit "B"
-----------
Sign Type C:
Double face sandblasted wood arcade sign. For all "in-line" tenants within the
project where covered arcade exists. Signs to be installed perpendicular to
respective shop entrance, on-center to the primary entry door(s). Sign to be
suspended by means of a typical metal bracket (as shown of exhibits, page 1) and
finished it, a typical manner as specified on exhibits. Size: 1'-O" x 2'-6".
Size and shape of sign, as well as sign colors, to be typical as specified on
exhibits.
Graphics/letterstyle open to tenant, subject to Landlord approval.
Tenant shall have the option to be included on the monument sign if space is
available.
II. TENANT SIGN TYPES
B. Tenant Sign Types:
Sign Type A:
Internally illuminated lens sign at North & East facing elevations of Buildings
A, B, & D. Installed on center with the respective shop entrance, centered
horizontally and vertically on building fascia. Size: 2'-0" x 12'-0".
Simulated ceramic tile sign face, pointed with automotive enamels in a typical
color as specified on exhibits. Dimensional, decorative border typical color as
shown on exhibits, sheet 1.
Sign Type A-1:
One interior illuminated "custom" lens sign at Tower locations facing the
parking lot; of buildings A, B, & D. (See sample elevation exhibit, sheet 1).
Installed on center of the respective tower. Size: 3'-0" x 16'-0".
Simulated ceramic tile sign face, pointed with automotive enamels in a typical
color as specified on exhibits.
Sign Type B:
One interior illuminated pan channel letters with translucent faces for direct
illumination for freeway-facing elevations for buildings A & B. Signs will be
installed on both the parapet towers (one sign per tower), and the tower fascia
band (see elevation exhibit, sheet 1). At parapet locations, sign length is not
to exceed 20 feet, with letters centered both horizontally end vertically as
shown on exhibits. At fascia bond locations, sign will be centered horizontally
on each stretch of architecturally unbroken fascia (see building contour on site
plan exhibit, sheet 2), one sign per section. (Total of 3 signs, building A; 4
signs building B). Length of signs at fascia band are not to exceed 50% of the
unbroken fascia length, or 35 feet, whichever is less.
In all cases, letter size Is not to exceed 30 inches. No stacked letters; one
line of copy only. Sign Letters will typically have a 5 inch deep sheet metal
return with pointed anodized bronze finish, Dupont 42863-X.
XXXXXX INITIAL /S/
LESSEE INITIAL /S/
EXHIBIT "C"
RULES AND REGULATIONS
SHOPPING CENTER
Lessor hereby established the following rules and regulations for the safety,
core and cleanliness of (i) the store areas (hereinafter referred to as the
"demised premises") of any lessee or lessees of the Shopping Center (hereinafter
referred to as the "Lessee"), (ii) the common area; and (iii) the Shopping
Center in general, or for the preservation of good order:
A. FOR THE STORE AREAS:
1. All floor areas of the demised premises (including vestibules,
entrances, and air returns), doors, fixtures, windows, and plate glass shall be
maintained in a clean, safe and good condition.
2. All trash, refuse, and waste materials shall be stored in adequate
containers and regularly removed from the demised premises. These containers
shall not be visible to the general public and shall not constitute a health or
fire hazard, or a nuisance to any other Lessee. In the event that any lessee
shall fail to remedy such a health or fire hazard, or nuisance, within five (5)
days after written notice by Lessor, Lessor may remedy and/or correct such
health or fire hazard or nuisance at the expense of the Lessee involved.
3. No portion of the demised premises shall be used for lodging
purposes.
4. Neither sidewalks nor walkways shall, be used to display, store, or
place any merchandise, equipment or devices, except in connection with sidewalk
sales held with Lessor's prior written approval. The roof of the demised shall
not be used for the storage of merchandise or equipment.
5. No public telephone, newsstand, shoeshine stand, refreshment,
vending or other coin operated machine shall be installed or placed on the
sidewalk or walkway area adjacent to the demised premises or on the common areas
without Lessor's prior written approval in each instance.
6. No person or persons shall use the demised premises, or any port
thereof, for conducting therein a second-hand store, auction, distress or fire
sale or bankruptcy sale, or "going-out-of-business" sale or "lost our lease"
sale, without Lessor's prior written consent.
7. No portion of the demised premises shall be used for the storage of
any merchandise, materials or other properties, other than those reasonably
necessary for the operation of a Lessee's business. Lessor may, from time to
time, inspect the demised premises to insure compliance with the foregoing
provisions.
8. Except for professionally prepared signs, lessee shall not black out
or otherwise obstruct the windows of the demised premises, without Lessor's
prior written consent.
9. If a tenant provides its customers with the use of shopping carts
and/or baskets, such Lessee shall be responsible for causing said carts and/or
baskets to be stored only in areas designated by Lessor. If such Lessee fails to
routinely collect and store said carts as necessary (at least twice on a daily
basis), Lessor may assume the responsibility of same and may xxxx the Lessee
involved on an estimated monthly basis for such service.
B. FOR THE COMMON AREAS:
1. All Lessees and their authorized representatives and invitees shall
use any roadway, walkway, or mail (including the enclosed mail if any) only for
ingress and egress from the stores in the Shopping Center. Use of the common
areas shall be in an orderly manner in accordance with directional or other
signs or guides. Roadways small not be used at a speed in excess of ten (10)
miles per hour and shall not be used for parking or stopping except for the
immediate loading or unloading of passengers. Walkways and malls (including the
enclosed mall, if any) shall be used only for pedestrian travel.
2. All Lessees and their authorized representatives and invitees shall
not use the parking areas for anything but parking motor vehicles. All motor
vehicles shall be parked in an orderly manner within the painted lines defining
the individual parking places. During peak periods of business activity, Lessor
can impose any and all controls Lessor deems necessary to operate the parking
lot including but not limited to the length of time for parking use.
3. No person shall use any utility area or truck loading area reserved
for use in conducting business, except for the specific purpose for which
portion salon to use these areas has been given.
4. No employee shall use any area for motor vehicle parking except the
area specifically designated for employee parking for the particular period of
time the use of to be made. No Lessee shall designate an area for employee
parking except the area designated in writing by Lessor.
5. Without the prior written consent of Lessor, no person shall use any
of the common areas for:
a. Vending, peddling or soliciting orders for sale or distributing
of any merchandise, devices, services periodical, book, pamphlet, or other
matter;
1
Exhibit "C"
-----------
b. Exhibiting any non-professional sign, placard, banner, notice
or other written material;
c. Distributing any circular, booklet, handbill, placard, or other
material;
d. Soliciting membership in any organization, group, or
association, or soliciting contributions for any purpose;
e. Parading, patrolling, picketing, demonstrating, or engaging in
conduct that might interfere with the use of the common areas or be detrimental
to any of the business establishments in the Shopping Center;
f. Using the common areas for any purpose when none of the
business establishments in the shopping Center is open for business;
g. Discarding any paper, glass, or extraneous litter of any kind
except in designated receptacles
h. Except for normal and customary sound devices for Lessee's
drive-thru facilities, using a sound-making device that is grossly annoying or
unpleasant to the general public; or
i. Damaging any sign, light standard, or fixture, landscaping
material or other improvement or property within the Shopping Center.
The above listing of specific prohibitions is not intended to be exclusive, but
is intended to indicate the manner in which the right to use the common areas
solely as a means of access and convenience in shopping at the business
establishments in the Shopping Center is limited and controlled by Lessor.
Lessee acknowledges receipt of those roles and regulations as of this 7th day of
February, 1995
LESSOR INITIAL /S/
LESSEE INITIAL /S/
2
EXHIBIT D
There are no improvements to be made and Lessee accepts the premises in "As Is"
condition, with the exception of the following:
a) Lessor shall repair any existing roof leaks and replace damaged ceiling
tiles for the Premises.
Lessor acknowledges Lessee's desire to construct an interior storage room in the
Premises as well as a paved exterior access sidewalk running from the rear
(freeway side) of the Premises in a westerly direction along the rear (freeway
side) of the Project, to west side of the Project at B Street/Xxxxxx Road.
All costs associated with the design, permits and construction of this, or any
additional, improvements shall be at the sole cost and expense of the Lessee.
Lessee shall obtain Lessor's prior written approval on all plans and permits of
any work to be performed on or about the Premises.
Lessee, at its sole cost and expense for installation, maintenance and removal,
shall be allowed to replace its' existing parking lot tenant sign with a sign
similar to that sign(s) facing the freeway. Any sign replacement shall be
subject to obtaining the written approval from the city of Tustin and the lessor
prior to installation.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
RIDER NO. 1
-----------
Increases in Basic Rental
-------------------------
Notwithstanding anything in the Lease to the contrary, the monthly rental
as set forth in paragraph E of the Basic Lease Provisions shall be increased in
the following manner:
(a) To Three Thousand Six Hundred Seventy Five and No/100 Dollars
($3,675.00) commencing with the thirteenth (13th) month of the Lease term.
(b) To Three Thousand Eight Hundred Ninety Five and 50/100 Dollars
($3,895.50) commencing with the twenty fifth (25th) month of the Lease
term.
(c) To Four Thousand One Hundred Sixty Eight and 19/100 Dollars
($4,168.19) commencing with the thirty seventh (37th) month of the Lease
term.
(d) To Four Thousand Five Hundred Eighty Five and No/100 Dollars
($4,585.00) commencing with the forty ninth (49th) month of the Lease term
and continuing thereafter until termination of the Basic Lease Term.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
RIDER NO. 2
-----------
Americans with Disabilities Act Disclosure
------------------------------------------
The United States Congress has recently enacted the Americans With
Disabilities Act. Among other things, this act is intended to make many business
establishments equally accessible to persons with a variety of disabilities;
modifications to real property may be required. State and local laws also may
mandate changes.
Mandated changes may be required now, or in the future. Lessees should
consult attorneys and qualified design professionals of their choice for
information regarding these matters.
"Without limiting the generality of the foregoing, Lessee acknowledges he
shall comply with all governmental rules, regulations, or requirements regarding
environmental laws within the rentable space they currently occupy and Americans
with Disabilities Act."
LESSOR INITIAL /S/
LESSEE INITIAL /S/
RIDER NO. 3
-----------
Hazardous Waste
---------------
Lessee, at is sole cost and expense, shall comply with all laws, rules,
regulations, orders and the like relating to the storage, use and/or disposal of
hazardous, toxic or radioactive matter, including those materials identified in
Sections 66680 through 66685 of Title 22 of the California Administrative Code,
Division 4, Chapter 30 ("Title 22") as amended from time to time (collectively
"Toxic Materials"). Lessee shall not cause or permit any Toxic Materials to be
brought upon, kept, stored, used or disposed of in or about the Premises or the
parking facilities or common areas serving the Premises by Lessee, its agents,
employees, contractors or invitees, without the prior written consent of
Landlord, which consent Lessor may withhold in its sole discretion. Lessee's
breach of the covenants contained herein shall constitute a material default
under this Lease. Lessee shall be solely responsible for and shall defend,
indemnify and hold Lessor, Lessor's agents and the Premises harmless from and
against all claims, costs and liabilities, including attorney's fees and costs,
arising out of or in connection with the removal of Toxic Materials from the
Premises arid/or any adjacent property or the clean-up of the Premises and/or
any adjacent property, including without limitation, to any and all restoration
work and materials necessary to return the Premises and any other property of
whatever nature to their condition existing prior to the appearance of the Toxic
Materials on the Premises. Lessee's obligations hereunder shall survive the
termination of this Lease.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
RIDER NO. 4
-----------
Exclusive Use:
--------------
Lessor agrees that it shall not lease any other premises on the Property, or
portion of the Property, shown on Exhibit "A", to another business whose primary
function would directly conflict with Lessee's permitted use of the Premises as
outlined in Paragraph "B" of the "Basic Lease Provisions".
The Exclusive Use shall not apply to a Furniture retailer who also sell bedroom
furnishings, but shall exclude such a user from selling Futon bedding and
frames.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
RIDER NO. 5
-----------
Option to Lease.
----------------
This option to extend is personal to Lessee and not to any assignee or
sublessee. Lessee shall have the option to lease the Premises for the thirty six
(36) month period immediately following the expiration of the term of this Lease
upon the same terms, provisions, and conditions except rent. This option shall
be binding on and effective between the parties hereto, provided that:
(i) Lessee shall give Lessor one hundred eighty (180) days and not less
then ninety (90) days written notice prior to the expiration of the term of
this Lease of Lessee's election to exercise the option;
(ii) No "Event of Default" (as defined in Article 24 of this Lease) exists
or occurs after the delivery of the Notice given pursuant to (1) above; and
(iii) Rent Determination During Option Period. All provisions of the Lease,
this Rider and all other exhibits to this Lease shall continue in full
force and effect during the Option Period; provided, however that the Basic
Monthly Rent for the initial year of the Option Period shall be the
"Prevailing Market Rent" (as such term is defined below). Lessor and Lessee
shall have thirty (30) days following the exercise of the Option in which
to agree as to the Prevailing Market Rent for the Premises as of the first
month of the Option Period. In the event Lessor and Lessee are unable to
agree on the Prevailing Market Rent within such thirty (30) day period, the
Prevailing Market Rent shall be determined as follows:
A. Within fifteen (l5) days following the expiration of such thirty
(30) day period for Lessor and Lessee to agree on the Prevailing Market
Rent for the Premises, Lessor and Lessee shall each give written notice to
the other designating by name, address and telephone number an MAI
appraiser familiar with office building rentals in the "Comparison Area"
described below. Within fifteen (15) days following the selection of the
second appraiser to be designated, the first two (2) appraisers shall
select a third MAI appraiser. The employment of each appraiser shall be
conditioned on such appraiser's agreement
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-1-
(Rider No. 5 continued)
to comply with the provisions of this Rider. Within thirty (30) days after the
selection of the third appraiser, the three (3) appraisers so selected shall
determine the Prevailing Market Rent for the Premises and each shall notify
Lessor and Lessee in writing within such thirty (30) day period of the
Prevailing Market Rent for the Premises determined by such appraisal. The
Prevailing Market Rent for the Premises shall be determined by such appraisal.
The Prevailing Market Rent for the Premises shall be determined by applying the
following criteria:
(i) The Prevailing Market. Rent shall be based on the gross monthly
rent projected to be paid by tenants as of the first day of the Option
Period, based on the leases executed not earlier than six (6) months prior
to the date the appraisers shall meet, for buildings comparable to the
Building in size, quality, age and amenities, for premises which are
comparable to the Premises in size (plus or minus 20%), height, location,
and cosmetic condition, and with comparable tenant improvements as are in
the Premises (regardless of whether paid for by Lessor or Lessee),
(collectively referred to herein as "PMR Criteria"), for buildings which
are within the geographic area of the Building (the "Comparison Area")
(ii) Following the first year of the Option Period, the Basic Monthly
Rent then in effect shall be subject to Rent escalation, if any, based on
formulae being employed at the time of such appraisal in comparable
buildings within the comparison Area, such as but not limited to cost of
living increases.
B. The two MAI appraisals for the Prevailing Market Rent which
arithmetically are the closest shall be added together and divided by two (2).
The third appraisal shall be disregarded. The quotient so derived shall be the
initial Basic Monthly Rent for the Option Period. Notwithstanding any provision
of this Rider, however, the Basic Monthly Rent during the first month of the
Option Period shall in no event be less than the Basic Monthly Rent during the
last month of the original Lease Term.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-2-
(Rider No. 5 continued)
C. In addition to Basic Monthly Rent, Lessee shall be obligated to pay
Lessee's Proportionate Share of the Costs of Operation and Maintenance of the
Building during the Option Period. The Base Costs shall be reestablished for the
Option Period as Lessor's actual Costs of Operation and Maintenance of the
Building per square foot during the calendar year that the Option Period
commences.
X. Xxxxxx and Lessee shall each pay the cost and fees of the appraiser
selected by it. Lessor and Lessee shall share equally the cost and fees of the
third appraiser. In the event that either Lessor or Lessee does not identify an
appraiser within the first fifteen day (15) period set forth in A above, the
appraiser appropriately and timely identified shall alone render the appraisal
based on the PMR Criteria.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
-3-
RIDER NO. 6
-----------
Previous Lease Termination.
---------------------------
That certain Lease dated June 15, 1992 by and between DEV IX/TUSTIN FREEWAY
CENTER ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP, as Landlord and Xxx
Xxxxxxxx, as Tenant shall terminate upon the commencement date of this Lease.
Lessor agrees to allow Lessee to continue to use 00000 Xxxxxxx Xxxxxx, Xxxxx X,
Xxxxxx, XX for an additional sixty (60) days, from the execution date of this
Lease by Lessor, at n~ charge for the exclusive use of storage facilities only.
Lessor reserves the right to gain access for the express purpose of marketing
Suite C to any prospective users. Lessee shall agree to keep a key available to
Lessor in the Premises at all times during Lessee's normal business hours for
Lessor's use to show Suite C.
In the event the Lessor enters into a lease with a prospective user for Suite C,
within the aforementioned sixty (60) day period, Lessee shall be allowed to
relocate its storage requirements to a vacant suite as designated by Lessor for
the balance of time remaining on the original sixty (60) day period.
LESSOR INITIAL /S/
LESSEE INITIAL /S/
GUARANTEE OF LEASE
------------------
WHEREAS, a certain Lease dated January 25, 1995 herewith has been, or
will be executed by and between Xxxxxx Xxxxx, Receiver, under Case Xx. 000000,
Xxxxx xx Xxxxxxxxxx, xxxxxxxx Xxxxx, Xxxxxx of Orange, therein and herein
referred to as "Lessor", and Xxxxxxx Xxxxxxxx, Dba; Futon World therein referred
to as "Lessee" covering certain premises in the City of Tustin, County of
Orange, State of California; known as Tustin Freeway Center, located at 00000
Xxxxxxx Xxxxxx, Xxxxx X, consisting of Total Floor Area of approximately 4,269
square feet.
WHEREAS, the Lessor under said Lease required as a condition to its
execution of said Lease that the undersigned guarantee the cull performance of
the obligations of Lessee under said Lease; and
NOW, THEREFORE, in consideration of the execution of said Lease by
Lessor, the undersigned hereby unconditionally guarantees the full performance
of each and all of the terms, covenants and conditions of said Lease to be kept
and performed by said Lessee, including the payment of all rentals and other
charges to accrue thereunder. The undersigned further agrees as follows:
1. That this covenant and agreement on its part shall continue in favor
of the Lessor, notwithstanding any extension, modification or alteration of said
Lease entered into by and between the parties thereto or their successors or
assigns, or notwithstanding any assignment of said Lease, with or without the
consent of the Lessor, and no extension, modification, alteration or assignment
of the above referred to Lease shall in any manner release or discharge the
undersigned, and it does hereby consent thereto.
2. This Guarantee will continue unchanged by any bankruptcy,
reorganization or insolvency of the Lessee or any successor or assignee thereof
or by any disaffirmance or abandonment by a trustee of Lessee.
3. Lessor may, without notice, assign this Guarantee of Lease in whole
or in part and no assignment or transfer of the Lease shall operate to
extinguish or diminish the liability of the undersigned hereunder.
Page of 1 of 2
LESSOR INITIAL /S/
LESSEE INITIAL /S/
4. The liability of the undersigned under this Guarantee of Lease shall
be primary and that in any right of action which shall accrue to Lessor under
the Lease, the Lessor may, at its option, proceed against the undersigned
without having commenced any action or having obtained any judgment against the
Lessee.
5. To pay Lessor's reasonable attorney's fees and all costs and other
expenses incurred in any collection or attempted collection or in any
negotiations relative to the obligations hereby guaranteed or enforcing this
Guarantee of Lease against the undersigned, individually and jointly.
6. That it does hereby waive notice of any demand by the Lessor as well
as any notice of default in the payment of rent or any other amounts contained
or reserved in the Lease.
The use of the singular herein shall include the plural. The obligation
of two or more parties shall be joint and several. The terms and provisions of
this Guarantee shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties herein named.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be executed as
of the date first written above.
GUARANTOR:
BY: /s/ Xxxxxxx Xxxxxxxx DATE: 3-7-95
------------------------------- --------------------
Xxxxxxx Xxxxxxxx
Residence:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
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