Location: 0000X Xxxxxxxx Xxxx.. Xxxxxxxx Xxxxxxx. XX 00000
------------------------------------------------
THIS LEASE, is made and entered into this 13th day of July______. 2005, by and
between Mar. Limited Liability Company (Landlord) and Top Group Holdings, Inc.,
Tenant, who are hereinafter respectively referred to as Landlord and Tenant,
without regard to number or gender.
WITNESSETH:
1. USE.
The Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
those certain premises as hereinafter described for the sole purposes of
conducting thereon the following business under the following trade name:
Soyodo, for a retail bookstore, including the sale of DVD's. VCD's.
pre-recorded music, gifts, stationery and other related merchandise.
Tenant shall not use the Demised Premises for any other purpose or operate
its business in the Demised Premises under any different trade name
whatsoever without Landlord's prior written consent. Tenant acknowledges
and agrees that the Rental Rate for the Demised Premises is based in part
upon the use which Tenant has represented to Landlord that Tenant will
make of the Demised Premises. Tenant's specified use is also anticipated
to be complementary and compatible with other uses in the shopping center
of which it is a part, and consistent with the type of shopping center
which Landlord considers material to its public image and to its economic
benefit. Landlord would not have leased the Demised Premises to Tenant
without the restrictions contained herein, and may suffer economic harm or
other detriment if, subsequent to the date hereof, the use or trade name
changes. Accordingly, Landlord shall have the right, to be exercised in
its sole and absolute discretion, to deny any requested change in the use
or trade name, or to condition the granting of consent upon modifications
to the terms of the Lease, including, but not limited to rental and term
length. Tenant shall supply Landlord with such information as Landlord
reasonably requires in order to analyze Tenant's request for any such
change.
Tenant acknowledges that Landlord has made no representations or
warranties to Tenant concerning the presence or absence of any particular
tenant, use, or tenant or use mix in the shopping center, and has no
obligation to Tenant to obtain or refrain from allowing any particular
tenant or use in the shopping center.
2. PREMISES.
The premises leased to Tenant, together with appurtenances, are
hereinafter referred to as the "Demised Premises," and are situated in the
City of Xxxxxxxx Xxxxxxx, Xxxxxx xx Xxx Xxxxxxx, Xxxxx xx Xxxxxxxxxx and
are the premises crosshatched on the plot plan of the shopping center
attached hereto as Exhibit A. The Demised Premises shall contain
approximately Ten Thousand (10,000) square feet of leaseable space.
3. TERM.
The term of this Lease shall be for a period of five (5) years. The term
of this Lease, hereinafter known as the Lease Commencement Date, shall
commence upon Landlord's delivery of possession to Tenant. Tenant's
obligation to pay rent (hereinafter known as the Rent Commencement Date)
shall be forty-five (45) days after the Lease Commencement Date. Tenant
shall pay all CAM charges during the this 45-day free rent period. Should
such date not occur on the first day of a calendar month, the term
hereunder shall be extended for such fractional month. In that event, the
Tenant shall pay rent for the fractional month of a per diem basis
(calculated on the basis of a thirty-day month) until the first day of the
month. The rental for such fractional month shall be payable from the
initial payment of Guaranteed Minimum Monthly Rental as provided in
Article 4, below. The balance, if any, shall be applied to the next sums
due Landlord hereunder. Thereafter the Guaranteed Minimum Monthly Rental
shall be paid in equal monthly installments on the first day of each and
every month in advance. Landlord and Tenant acknowledge and agree that
immediately upon execution of this Lease, binding, legal obligations are
created, and that without regard to the date upon which Tenant's
obligation to pay rent commences, the relationship of Landlord and Tenant
exists between the parties on the date the term commences.
4. RENTAL.
A. Guaranteed Minimum Monthly Rental. Tenant shall pay to Landlord
during term of this Lease as the Guaranteed Minimum Monthly Rental
for the Demised Premises the sum of Twelve Thousand Five Hundred and
00/100 Dollars ($12,500.00) per month which sum shall be paid in
advance on the first day of each calendar month. However, Tenant
shall pay to Landlord its initial payment of Guaranteed Minimum
Monthly Rental at time of the Delivery of Possession of the Premises
to Tenant. All rental to be paid by Tenant to Landlord shall be in
lawful money of the United States of America and shall be paid
without deduction or offset, prior notice or demand at the address
designated in Article 34. Any rent payment not paid within five (5)
days of its due date shall be subject to a ten percent (10%) late
charge.
B. Cost of Living Adjustment. The Guaranteed Minimum Monthly Rent shall
be adjusted as follows:
Year 1 $12,500.00 per month
Year 2 $13,000.00 per month
Year 3 $13,520.00 per month
Year 4 $14,060.80 per month
Year 5 $14,623.23 per month
C. Additional Rent. Tenant shall pay, as additional rent, all sums of
money required to be paid pursuant to any of the terms of this
Lease, including without limitation, those required by Articles 4E,
5, 6, 7A, 7E, 0, 00, 00, 00, 00, 00X, 00X and all Exhibits of this
Lease, whether or not the same be designated elsewhere as
"additional rent", which collectively are the CAM charges as further
explained in each respective Article. If such amounts or charges are
not paid at the time provided in this Lease, they shall nevertheless
be collectible as additional rent with the next installment of
Guaranteed Minimum Monthly Rental thereafter falling due, but
nothing herein contained shall be deemed to suspend or delay the
payment of any amount of money or charge at the time the same
becomes due and payable hereunder, or limit any other remedy of
Landlord. All sums due Landlord hereunder, no matter how
denominated, shall be deemed Rent. Currently, CAM expenses are
estimated to be twenty five cents ($0.25) per square foot per month.
Said CAM expenses are subject to the annual year-end reconciliation
of Tenant's account as further described in Article 8.
D. Interest On Late Payments. The Tenant shall pay, when the same is
due and payable, all rent, additional rent, and other amounts or
charges described in this Lease and any unpaid amounts due Landlord
shall bear interest at the rate of 10% from the date due, to the
date of payment.
5. REAL ESTATE TAXES AND RENTAL TAX.
In addition to all rentals herein reserved, Tenant shall pay to Landlord
as additional rental, real estate taxes and assessments levied upon the
Demised Premises together with a pro rata share of the real estate taxes
and assessments levied upon the parking and common area of the shopping
center, plus a 15% management fee. Such amount shall be payable within ten
(10) days after transmittal by Landlord to Tenant of a semi-annual
statement setting forth the amount of such tax based upon the actual tax
xxxx received by Landlord. However, Landlord, at its option, shall have
the right to estimate the amount of taxes next due to collect and impound
from Tenant, on a monthly or quarterly basis, the amount of Tenant's
estimated tax obligation, as set forth in Article 8.
In the event the Demised Premises and its pro rata share of parking and
common areas are not separately assessed, then Landlord shall make and
Tenant shall pay, a reasonable allocation of all applicable taxes and
assessments affecting the shopping center to the Demised Premises. Such
reasonable allocation may be based, at Landlord's option, on, among other
things, the ratio that the Demised Premises, including mezzanine, if any,
bears to the total leasable floor area, including mezzanines, if any, in
either (i) the building or buildings which include the Demised Premises if
a separate assessment exists for such building or buildings; or (ii) the
shopping center as a whole.
Any such tax for the year in which this Lease commences or ends shall be
apportioned and adjusted. With respect to any assessment which may be
levied against or upon the Demised Premises and which, under the laws then
in force, may be evidenced by improvement or other bonds, payable in
annual installments, only the annual payments on said assessment shall be
included in computing Tenant's obligation for taxes and assessments.
The terms "real estate taxes" as used herein shall be deemed to mean all
taxes imposed upon the real property and permanent improvements
constituting the Demised Premises, and all assessments levied against said
Demised Premises, including any taxes resulting from reassessment of said
property to fair market value subsequent to the sale of the real property
and any transfer taxes charged in connection with the recordation of any
Memorandum of Lease, but shall not include personal income taxes, personal
property taxes, inheritances taxes, or franchise taxes levied against the
Landlord, but not directly against said property, even though such taxes
shall become a lien against said property. "Real estate taxes" also
include any charge or fee replacing any tax previously included within the
definition of real estate taxes, and any tax or charge for fire
protection, streets, sidewalks, road maintenance, refuse or other services
provided to the Demised Premises by any governmental agency.
Tenant shall pay to Landlord as additional rent any and all excise,
privilege and other taxes, other than Landlord's net income and estate
taxes, levied or assessed by any federal, state, or local authority upon
the rent received by Landlord hereunder, and Tenant shall bear any
business tax imposed upon Landlord by any governmental authority which is
based or measured in whole or in part by amounts charged or received by
Landlord from Tenant under this Lease.
6. PERSONAL PROPERTY TAXES.
During the term hereof Tenant shall pay prior to delinquency, all taxes
assessed against and levied upon fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Demised Premises. When
possible, Tenant shall cause said fixtures, furnishings, equipment and
other personal property to be assessed and billed separately from the real
property of Landlord. In the event any or all of the Tenant's fixtures,
furnishings, equipment and other personal property shall be assessed and
taxed with the Landlord's real property, the Tenant shall pay to Landlord,
as additional rent, its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to the Tenant's property.
7. PARKING AND COMMON FACILITIES.
Landlord covenants that the common and parking areas of the shopping
center of which the Demised Premises are a part shall be available for the
non exclusive use of Tenant during the full term of this Lease or any
extension of the term hereof, provided that the condemnation or other
taking by any public authority, or sale in lieu of condemnation, of any or
all of such common and parking areas shall not constitute a violation of
this covenant. Landlord reserves the right to change the entrances, exits,
traffic lanes and the boundaries and locations of such parking area or
areas. Landlord agrees to consult with tenant, but tenant shall not have
any approval rights. This Lease shall be subordinate to any agreement
existing as of the date of this Lease or subsequently placed upon the real
property of which the Demised Premises are a part, which agreement
provides for reciprocal easements and restrictions pertaining to the
common and parking areas, and in the event of conflict between the
provisions of such agreement and this Lease, the provisions of said
agreement shall prevail. However, nothing therein shall cause the Tenant
to pay a greater share of the common area maintenance cost than herein
provided, and provided further that there shall at all times be maintained
common and parking areas of not less than two (2) square feet of common
and parking area for each square foot of ground floor building area within
the shopping center.
A. The Landlord shall keep, or cause to be kept, the parking and common
areas in a neat, clean and orderly condition, properly lighted and
landscaped, and shall repair any damage to the facilities thereof,
but all expenses in connection with said parking and common areas
shall be charged and prorated in the manner hereinafter set forth.
It is understood and agreed that the phrase "expenses in connection
with said parking and common areas" as used herein shall be
construed to include, but not be limited to, all sums expended by
Landlord in connection with said parking and common areas for all
general maintenance and repairs, resurfacing, painting, restriping,
cleaning, sweeping and janitorial services; painting and
landscaping; lighting and other utilities; directional signs and
other markers and bumpers; personnel to implement such services and
at Landlord's option, to provide security in the parking and common
areas; required fees or charges levied pursuant to any governmental
requirements; public liability and property damage insurance
including, at Landlord's election, earthquake and flood insurance,
which shall be carried and maintained by Landlord with limits as
determined by Landlord; legal and accounting fees incurred and
maintained by Landlord in connection with its obligations to
maintain and repair the common area, or otherwise directly related
to the ownership and operation of the shopping center specifically
as opposed to Landlord generally, but excluding such fees as
Landlord may include enforcing rent payment obligations of other
tenants; any additional costs even though not specifically itemized
herein, for goods, services, or personnel, which Landlord incurs in
providing same to the shopping center, without regard to whether
such categories of goods, services, or personnel were in place or
provided at the time this Lease was entered into; and a fee equal to
fifteen percent (15%) of said costs to Landlord or its designated
property manager, if any, for Landlord's supervision of said areas.
Landlord shall periodically send to Tenant a statement, itemizing in
reasonable detail, the total expenses for the parking and common
areas, and Tenant agrees to pay Landlord, Tenant's pro rata share of
such expenses within ten (10) days after transmittal of said
statement to Tenant. Tenant's pro rata share shall be determined by
the ratio that the number of square feet of gross leasable floor
area in the Demised Premises bears to the total number of square
feet of gross leasable floor area of all buildings in the shopping
center. There shall be an appropriate adjustment of Tenant's share
of said expenses as of the commencement and expiration of the term
of this Lease. The term "gross leasable floor area" shall mean floor
area with measurements from the outside of exterior walls and from
the center of interior walls. Landlord may, at its option, estimate
the amount of said parking and common area expenses next due and
collect and impound from Tenant, on a monthly or quarterly basis,
the amount of Tenant's pro rata share as set forth in the following
Article 8.
B. Tenant, for the use and benefit of Tenant, its agents, employees,
customers, licensees and any approved sub- tenant, shall have a
non-exclusive right in common with Landlord and other present and
future owners, licensees and subtenants, to use the common and
parking areas during the entire term of this Lease, or any extension
thereof, for ingress and egress, roadway, sidewalk and automobile
parking, provided however, Tenant and Tenant's employees shall park
their automobiles in those areas designated for employee parking, or
at Landlord's written request shall park their automobiles outside
of the shopping center.
C. The Tenant, in the use of said common and parking areas, agrees to
comply with such reasonable rules and regulations as the Landlord
may adopt from time to time for the orderly and proper operation of
said common and parking areas, and to otherwise conduct itself so as
not to unreasonably interfere with the rights of other tenants or
approved users, including landlord, in and to the parking and common
areas.
D. Tenant shall at its expense arrange for the collection of its trash
in a prompt, regular, and sanitary manner, unless Landlord elects to
provide trash collection as a part of the parking and common area
maintenance.
E. Tenant acknowledges that major tenants and kiosk tenants, if any,
may not pay on the same basis as Tenant for common area and parking
maintenance charges, taxes, utilities, or other allocations, and
that any such distinctions shall not impact Tenant's obligations
with respect to same which are provided for herein.
8. IMPOUND FOR EXPENSES.
As herein before, provided, Tenant is obligated to reimburse Landlord for
Tenant's share of certain costs and expenses, which reimbursement is
payable as additional rent. It is agreed that, rather than xxxx and
collect said- reimbursement in arrears, Landlord may estimate Tenant's
share of said costs and expenses, for a period not more than twelve (12)
months in advance, and may collect and impound Tenant's estimated share in
advance on a monthly or quarterly basis. On or before March 31 of each
year, Landlord shall provide to Tenant a reconciliation of Tenant's
account for the twelve (12) month period ending the preceding December 31.
However, Landlord's failure to provide such CAM reconciliation statement
by said date shall in no way excuse Tenant from its obligation to pay its
pro rata share of CAM reconciliation costs or constitute a waiver of
Landlord's right to xxxx and collect such pro rata share of CAM
reconciliation costs from Tenant in accordance with this clause. Said
reconciliation shall set forth in reasonable detail the costs and expenses
paid by Landlord, and shall include a computation as to Tenant's pro rata
share, hi the event Tenant has overpaid its share of said costs and
expenses, Landlord shall credit said overpayment against the next costs,
expenses and reimbursements due from Tenant until said credit has been
fully utilized. At Landlord's option, any such overpayment may, in the
alternative, be credited against rent due hereunder. In the event of an
under payment, Tenant shall pay, to Landlord said under payment within ten
(10) days after receipt of the reconciliation.
9. CONSTRUCTION.
Tenant agrees to accept the premises in "as-is" condition except Landlord
shall deliver the Premises to Tenant in "broom clean" condition with HVAC,
electrical system, lighting, ceiling and restrooms all per building
standard materials and in working condition. Landlord shall also remove
all prior tenant's equipment including fixtures and affixed walk-in
freezers at rear of Premises. Upon full execution of this Lease, Landlord
shall diligently pursue Landlord's work in order to deliver possession of
the Premises to Tenant in the condition specified above. Landlord
estimates that the date of delivery of possession to Tenant shall be
within sixty (60) to one-hundred twenty (120) days from the full execution
of this Lease by both Landlord and Tenant. In the event Landlord fails to
deliver possession of the Premises to Tenant within the one-hundred twenty
(120) days specified herein, Landlord, for every day the delivery of
possession is delayed, shall pay to Tenant the amount of One Hundred
Dollars ($100.00) per day.
10. USES PROHIBITED.
Tenant shall not use, or permit said Demised Premises, or any part
thereof, to be used for any purpose or purposes other than that set forth
in Article 1, above. No use shall be made or permitted to be made of the
Demised Premises, nor acts done, which will increase the existing rate of
insurance upon the building or the shopping center in which said Demised
Premises is located (once said rate is established), or cause a
cancellation of any insurance policy covering said building or any part
thereof, nor shall Tenant sell or permit to be kept, used or said in or
about said Demised Premises any article which may be prohibited by
standard form of fire insurance policies. Tenant shall, at his sole cost,
comply with any and all requirements, pertaining to the use of said Demise
Premises, of any insurance organization or company necessary for the
maintenance of reasonable fire and public liability insurance covering
said building and appurtenances. In the event Tenant's use of the Demised
Premises as set forth in Article 1. hereof, results in a rate increase for
the building of which the Demised Premises are a part, Tenant shall pay
annually on the anniversary date of this Lease, as additional rent, a sum
equal to that of the additional premium occasioned by said rate increase.
11. ALTERATIONS AND FDCTURES.
Tenant shall not make or suffer to be made, any alterations of the Demised
Premises, or any part thereof, without the prior written consent of
Landlord, and any additions to, or alterations of, said Demised Premises,
except movable furniture and trade fixtures, shall become at once a part
of the realty and belong to Landlord. Any such alterations shall be in
conformance with the requirements of all municipal, state and federal
authorities.
In addition, no alterations, additions or changes shall be made to any
storefront, the exterior walls or the roof of the Demised Premises, nor
shall Tenant erect any mezzanine or increase the size of same, if one be
initially constructed, unless and until the written consent and approval
of the Landlord shall first have been obtained, hi no event shall Tenant
make or cause to be made any penetration through the roof of the Demised
Premises without the prior written approval of Landlord. Tenant shall be
directly responsible for any and all damages resulting from any violation
of the provisions of this Article. All alternations, additions, or changes
to be made to the Demised Premises which require the approval of the
Landlord 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, approved in writing by the
Landlord before the commencement of work. All work with respect to any
alterations, additions, and changes must be done in a good and workmanlike
manner and diligently prosecuted to completion to the end that the Demised
Premises shall at all times be a complete unit. Upon completion of such
work, Tenant shall file for record in the office of the County Recorder
where the shopping center is located a Notice of Completion as permitted
by law. Upon termination of the Tenant's leasehold estate such
alterations, additions or changes shall be considered as improvements and
shall not be removed by the Tenant but shall become a part of the Demised
Premises, in performing the work of any such alterations, additions or
changes, the Tenant shall have the work performed in such a manner as not
to obstruct the access to the Demised Premises or of any other tenant in
the shopping center.
Landlord's consent or approval, when called for in this Article, may be
granted or withheld in its sole discretion, and may be conditioned upon
the posting by Tenant, Tenant's contractor, or both, of such surety bonds
as Landlord reasonably deems necessary to assure the timely, workmanlike,
lien free completion of any such work.
12. MAINTENANCE AND REPAIR.
Tenant shall at all times during the term hereof, and at Tenant's sole
cost and expense, keep, maintain and repair the building and other
improvements which constitute the Demised Premises in good and sanitary
order and condition (except as hereinafter provided) including without
limitation, the maintenance and repair of any storefront, doors, window
casements, plate glass, glazing, plumbing, pipes, electrical wiring and
conduits, and the heating and air conditioning system (if any), including
the maintenance of a service contract with a heating and air conditioning
contractor approved by Landlord. Tenant shall also at its sole cost and
expense be responsible for any alterations or improvements to the Demised
Premises necessitated as a result of the requirement of any municipal,
state or federal authority. Tenant hereby waives all right to make repairs
at the expense of Landlord, and Tenant hereby waives all rights provided
for by Section 1941 of the Civil Code of the State of California to make
said repairs. By entering into the Demised Premises, Tenant shall be
deemed to have accepted the Demised Premises as being in good and sanitary
order, condition and repair, and Tenant agrees on the last day of the term
or on the sooner termination of this Lease, to surrender the Demised
Premises with appurtenances, in the same condition as when received,
reasonable use and wear thereof and, where insurance proceeds are
available to Landlord to restore the Demised Premises, damage by fire, act
of God or by the elements excepted. Tenant shall periodically sweep and
clean the sidewalks adjacent to the Demised Premises, as needed.
Landlord shall, subject to Tenant's reimbursement as herein provided,
maintain in good repair the exterior walls, roof and sidewalks. Tenant
agrees that it will not, nor will it authorize any person to, go onto the
roof of the building of which the Demised Premises are a part without the
prior written consent of Landlord. Said consent will be given only upon
Landlord's satisfaction that any repairs necessitated as a result of
Tenant's action will be made by Tenant at Tenant's expense and will be
made in such a manner so as not to invalidate any guarantee relating to
said roof. Landlord shall not be required to make any repairs to the
exterior walls, roof and sidewalks unless and until Tenant has notified
Landlord in writing of the need for such repairs and Landlord shall have
had a reasonable period of time thereafter to commence and complete said
repairs. Tenant shall reimburse Landlord for its pro rata share of the
cost of said repairs and maintenance incurred by Landlord, plus a fee
equal to 15% of said costs, said pro rata share to be determined according
to the area of the Demised Premises as it relates to the total area of the
building which contains the Demised Premises.
13. COMPLIANCE WITH LAWS.
Tenant shall, at its sole cost and expense, comply with all of the
requirements of all municipal, state and federal authorities now in force
or which may hereafter be in force pertaining to the use of said Demised
Premises, and shall faithfully observe in said use all municipal
ordinances and state and federal statutes now in force or which shall
hereinafter be in force. Without limiting the foregoing, Tenant shall not
use, store, keep, or permit any one else to use, store, or keep on the
Demised Premises any material which is classified by any municipal, state,
federal, or other governmental agency as hazardous, toxic, or similarly
detrimental to health or the environment, without the express written
consent of Landlord first being obtained, which consent may be withheld in
Landlord's sole and absolute discretion. In any event, and notwithstanding
any consent by Landlord, Tenant shall at all times comply with all laws ,
rules and regulations concerning hazardous, toxic, or similar materials,
Tenant hereby agrees to indemnify, defend, and hold Landlord harmless from
any and all loss it may suffer arising out of or related to the use,
storage, keeping or presence of hazardous, toxic or similar materials on
the Demised Premises, which indemnity shall survive the term of this
Lease. The judgment of any court of competent jurisdiction, or the
admission of Tenant in any action or proceeding against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any such
order or statute in said use, shall be conclusive of that fact as between
the Landlord and Tenant.
Tenant shall not commit, or suffer to be committed, any waste upon the
Demised Premises, or any nuisance or other act or thing which may disturb
the quiet enjoyment of any other tenant in the shopping center in which
the Demised Premises is located.
14. INSURANCE.
Landlord shall maintain fire and extended coverage insurance throughout
the term of this Lease in an amount equal to at least ninety percent (90%)
of the replacement value of the building which includes the Demised
Premises, together with such other insurance as may be required by
Landlord's lender or by any governmental agency. At Landlord's option,
Landlord may maintain earthquake, flood, or "all risks" insurance on the
building or shopping center of which the Demised Premises are a part, for
an amount not less than 90% of the replacement value of the insured
property, with respect to "all risks" insurance, Landlord and Tenant agree
that Landlord's insurable interest in the Demised Premises includes all
improvements to the premises, except Tenant's removable trade fixture or
Tenants personal property which are insured by Tenant's personal property
insurance. Tenant hereby waives any right of recovery from Landlord,
officers and employees, and Landlord, to the extent permitted under its
insurance policies, hereby waives any right of recovery from Tenant, its
officers or employees, for any loss or damage (including consequential
loss) resulting from any of the perils insured against in the standard
form fire insurance policy with extended coverage endorsement. Tenant
agrees to pay to Landlord its pro rata share of the cost of said
insurance, including said endorsement plus a 15% management fee, to be
determined by the relationship that the gross leasable floor area of the
Demised Premises bears to the total gross leasable floor area of the
building or buildings or shopping center for which such policy relates.
Landlord may estimate the cost of said insurance and collect and impound
Tenant's share of said cost as set forth in Article 8.
Any or all of the insurance which Landlord is required to or may maintain
under this Lease, including that for the parking and common areas, may be
carried by Landlord as part of a blanket policy or policies, which also
covers other properties of Landlord. In such event, Landlord shall
allocate to the shopping center a portion of the total premium for such
policies which fairly and reasonably represents costs attributable to the
subject property. In making such allocation, Landlord shall be entitled to
consider, among other things, the relationship between the size and value
of the subject property compared to all covered properties, and any
special requirements resulting in a disproportionate allocation imposed
upon the subject property by Landlord's mortgage holders, partners,
governmental agencies or others who may legitimately impose insurance
requirements on Landlord.
Tenant, if involved in food preparation and sales as a cafe, restaurant,
or similar use, and /or food takeout service, shall install at Tenant's
expense any fire protective systems in grill, deep fry, and cooking areas
which are required by city, county, and state fire ordinances.
15. INDEMNIFICATION OF LANDLORD - LIABILITY INSURANCE BY TENANTS.
Tenant, as a material part of the consideration to be rendered to Landlord
under this Lease, hereby waives all claims against Landlord for damage to
goods, wares and merchandise, in, upon or about the Demised Premises and
for injuries to persons in or about the Demised Premises, from any cause
arising at any time; and Tenant will hold Landlord exempt and harmless
from any damage or injury to any person, or the goods, wares, and
merchandise of any person, arising from the use of the Demised Premises by
Tenant, or from the failure of Tenant to keep the Demised premises in good
condition and repair, as herein provided.
During the entire term of this Lease, the Tenant shall, at the Tenant's
sole cost and expense, but for the mutual benefit of Landlord and Tenant,
maintain general public liability insurance against claims for personal
injury, death or property damage occurring in, upon or about the Demised
Premises and on sidewalks directly adjacent to the Demised Premises. The
limitation of liability of such insurance shall be not less than One
Million Dollars (1,000,000) in respect to injury or death of one person
and to the limit of not less than Two Million Dollars (2,000,000) in
respect to any one accident and to the limit of not less than Five Hundred
Thousand Dollars ($500,000) in respect to property damage. All such
policies of insurance shall be issued in the name of Tenant and Landlord
by a company reasonably satisfactory to Landlord and for the mutual and
joint benefit and protection of the parties, and such policies of
insurance or copies thereof shall be delivered to the Landlord.
16. MECHANIC'S LIENS.
Tenant agrees that it will pay or cause to be paid all costs for all work
done by it or caused to be done by it on the Demised Premises, and Tenant
will keep the Demised Premises free and clear of all mechanic's liens and
other liens on account of work done for Tenant or persons claiming under
it. Tenant agrees to and shall indemnify, defend and save the Landlord
free and harmless against liability, loss, damage, costs, attorneys' fees,
and all other expenses on account of claims of Hen of laborers or
materialmen or others for work performed or materials or supplies
furnished for the Tenant or persons claiming under it.
If the tenant shall desire to contest any claim of lien, it shall furnish
the Landlord adequate security of the value or in the amount of the claim,
plus estimated costs and interest, or a bond of a responsible corporate
surety in such amount conditioned on the discharge of the lien. If a final
judgment establishing the validity or existence of a lien for any amount
is entered, the Tenant shall pay and satisfy the same at once.
If the Tenant shall be in default in paying any charge for which a
mechanic's lien claim and suit to foreclose the Lien have been filed, and
shall not have given the Landlord security to protect the property and the
Landlord against such claim of lien, the Landlord may (but shall not be
required to) pay the said claim and any costs, and the amount so paid,
together with reasonable attorneys' fees incurred in connection therewith,
shall be immediately due and owing from the Tenant to the Landlord, and
the Tenant shall pay the same to Landlord with interest at a maximum rate
allowed under the Law of the State of California in effect at the time
this Lease was executed from the dates of the Landlord's payments. Should
any claims of lien be filed against the Demised Premises or any action
affecting the title to such property be commenced, the party receiving
notice of such lien or action shall forthwith give the other party written
notice thereof. The Landlord or its representatives shall have the right
to go upon and inspect the Demised Premises at all reasonable times and
shall have the right to post and keep posted thereon notices of
non-responsibility, or such other notices which the Landlord may deem to
be proper for the protection of the Landlord's interest in the Demised
Premises. The Tenant shall, before the commencement of any work which
might result in any such lien, give to the Landlord written notice of his
intention to do so in sufficient time to enable the posting of such
notices.
17. ABANDONMENT.
Tenant shall not vacate or abandon the Demised Premises at any time during
the term of this Lease; and if Tenant shall abandon, vacate or surrender
the Demised Premises or be dispossessed by process of law, or otherwise,
any personal property belonging to tenant and left on the Demised Premises
shall be deemed to be abandoned, at the option of Landlord, except such
property as may be mortgaged to Landlord.
Tenant hereby waive all rights and procedures provided for by Sections
1980 through 1991 of the Civil Code of the State of California as these
sections relate to the disposition of personal property of Tenant
remaining on the Demised Premises after the tenancy has been terminated
and the Demised Premises have been vacated by the Tenant.
18. SIGNS AND AUCTIONS.
Tenant shall not place or permit to be placed any sign, designs, words, or
pictures upon the exterior or in or upon the windows of the Demised
Premises without Landlord's prior written consent, nor shall Tenant change
the color or exterior appearance of the Demised Premises without
Landlord's prior written consent. Landlord's approved sign criteria
drawings are attached hereto as an Exhibit, or if not available as of the
execution of this Lease shall be provided to Tenant by Landlord. Tenant
shall at its sole cost and expense prepare sign construction drawings, in
accordance with said criteria drawings, which shall be submitted to
Landlord for Landlord's written approval. Tenant agrees to install a sign
in accordance with the approved sign construction drawings within thirty
(30) days after the commencement of the term of the Lease.
Tenant, at its sole cost and expense, shall be allowed to place its sign
on the facade of the Premises in accordance to Landlord's sign criteria
and on two (2) monument signs, one on Xxxx Ave and one on Hacienda Blvd.,
in the space immediately to the right of the existing 99 Cents Only Store
sign, as indicated on Exhibit A of the Lease as "Permitted Tenant Sign."
Tenant shall place such signs on the monument sign within sixty (60) days
of the Lease Commencement date or Tenant shall forfeit it's right to place
such signs.
Tenant shall not, without Landlord's prior written consent, display or
sell merchandise or keep or place any promotional or advertising signs,
devices or materials outside the defined exterior walls and permanent
doorways of the Demised Premises. Tenant shall not conduct or permit to be
conducted any sale by auction in, upon or from the Demised Premises,
whether said auction be voluntary, involuntary, pursuant to any assignment
for the payment of creditors, or pursuant to any bankruptcy or other
solvency proceeding.
19. UTILITIES.
Tenant shall pay before delinquent all charges for water, gas, heat,
electricity, power, telephone service, and all other services of utilities
used in, upon, or about the Demised Premise by Tenant or any of its
Subtenants, licensees, or concessionaires during the term of this Lease.
If any utility is not separately metered, Tenant agrees to reimburse
Landlord for the cost of said service, plus a 15% management fee.
20. ENTRY AND INSPECTION.
Tenant shall permit Landlord and its agents to enter into and upon the
Demised Premises at all reasonable times for the purpose of inspecting the
same or for the purpose of maintaining the building in which said Demised
Premises are situated, or for the purpose of making repairs, alterations
or additions to any other portion of said building , including the
erection and maintenance of such scaffolding, canopy, fences and props as
may be required, or for the purpose of posting notices of non-liability
for alterations, additions or repairs, or for the purpose of placing upon
the property in which the Demised Premises are located any usual or
ordinary "For Sale" or "For Lease" signs. Landlord shall be permitted to
do any of the above without any rebate of rent and without any liability
to Tenant for any loss of occupation or quiet enjoyment of the Demised
Premises thereby occasioned. Tenant shall permit Landlord or its agents,
of any time within a sixty (60) day period prior to expiration of the
Lease term, during normal business hours, to enter upon said Demised
Premises and exhibit same to prospective tenants.
21. DAMAGE AND DESTRUCTION ON DEMISED PREMISES.
In the event of, (a) partial or total destruction of the Demised Premises
or the building containing same during the term which requires repairs to
either the Demised Premises or the building, or (b) the Demised Premises
or the building being declared unsafe or unfit for occupancy by any
authorized public authority for any reason other than Tenant's act, use or
occupancy, which declaration requires repairs to either the Demised
Premises or the building, Landlord shall forthwith make said repairs
provided Tenant gives to Landlord thirty (30) days written notice of the
necessity therefore. No such partial destruction (including any
destruction necessary in order to make repairs required by any declaration
made by any public authority) shall in any way annul or void this Lease
except that Tenant shall be entitled to a proportionate reduction of the
Minimum Guaranteed Rental while such repairs are being made, such
proportionate reduction to be based upon the extent to which the making of
such repairs shall interfere with the business carried on by Tenant in
said Demised Premises. However, if during the last two (2) years of the
term of this Lease the building is damaged as a result of fire or any
other insured casualty to an extent in excess of twenty-five percent (25%)
of its then replacement cost, (excluding foundation(s)), Landlord may
within thirty (30) days following the date such damage occurs, terminate
this Lease by written notice to Tenant. If Landlord, however, elects to
make said repairs, and provided Landlord uses due diligence in making said
repairs, this Lease shall continue in full force and effect, and the
minimum guaranteed rental shall be proportionately reduced as herein above
provided. If Landlord elects to terminate this Lease, all rentals shall be
prorated between Landlord and Tenant as of the date of such destruction.
The foregoing to the contrary notwithstanding, if the building is damaged
or destroyed at any time during the term thereof to an extent of more than
twenty-five percent (25%) of its then replacement cost (excluding
foundation(s)) as a result of casualty not insured against, Landlord may
within thirty (30) days following the date of such destruction terminate
this Lease upon written notice to Tenant. If Landlord does not elect to so
terminate because of said uninsured casualty, Landlord shall promptly
rebuild and repair said Demised Premises and Tenant's rental obligation
shall be proportionately reduced as herein above provided.
In respect to any partial or total destruction (including any destruction
necessary in order to make repairs required by any such declaration of any
authorized public authority) which Landlord is obligated to repair or may
elect to repair under the terms of this Article 21, Tenant waives any
legal, equitable or statutory right it may have to cancel this Lease as a
result of such destruction.
22. ASSIGNMENT AND SUBLETTING
A. Restriction of Tenant's Rights. Tenant shall not assign this Lease,
or any right or interest, voluntarily, involuntarily, or by
operation of law, or otherwise hypothecate or encumber all or any
part of Tenant's interest in this Lease, nor sublet the Premises or
any part thereof, nor permit any subtenant, franchisee or
concessionaire on the Premises(collectively "assignment of the
Lease" or "assign the Lease" and the proposed transferee "assignee")
without full compliance with this Article 22.
B. Request to Assign the Lease. If Tenant desires to assign the Lease,
it shall submit to Landlord, in writing, all of the following:
(i) all agreements and letters of intent between Tenant and other
parties to the proposed transaction including documentation
thereof, and sources, commitments and terms of any financing
arrangements;
(ii) the identity of any escrow holders and real estate or business
brokers involved, together with copies of escrow instructions
and agreements with any real estate and business brokers;
(iii) a Summary of proposed assignees:
(a) business history;
(b) business plan for the Premises;
(c) financial statements (balance sheet and full prior year
and present year to date income statements) completed,
dated and signed within thirty(3O) days prior to
submission, together with a complete copy of the most
recently filed federal income or franchise tax returns;
(d) a listing of the key employees, partners and financial
backers, together with background, personal and other
pertinent information concerning each of them; and
(e) business, trade and personal references; and
(iv) a description of any proposed changes to the Premises. In
addition, Tenant shall concurrently submit to Landlord the
non-refundable sum of $500 to partially reimburse Landlord for
its cost of reviewing the above described material. If
Landlord determines that in order to properly review this
material, professional assistance is required, Tenant shall be
notified of the same in advance, and shall, in addition,
reimburse Landlord for the cost of such professional
assistance.
C. Response to Request to Assign the Lease.
Landlord shall not be required to commence its review of Tenant's request
until it shall have received all of the above described items, in form
reasonably satisfactory to Landlord, and upon such receipt, shall have a
reasonable time period during which to review the same. In view of the
complexity of the material to be submitted, the parties agree that between
30 and 60 days is a reasonable time period. Landlord after review of those
items submitted pursuant to subparagraph B, shall have the right to
request from Tenant additional information should Landlord determine that
the items submitted pursuant to subparagraph B are not sufficient for a
proper analysis of the proposed assignment of the Lease. Tenant shall
promptly and completely respond to any such requests for additional
information. Landlord's consent to a requested assignment of the Lease,
submitted as set forth in subparagraph B, shall be granted or denied in
Landlord's sole judgment, provided Landlord's consent shall not be
unreasonably denied. The parties agree that Landlord would be acting
reasonably in denying consent, if by example (but not by way of
limitation) the proposed assignee's net worth is less than that of Tenant;
the proposed assignee's business experience is less than that of Tenant;
the proposed assignee already operates more than one other business in the
shopping center; the proposed assignee is by character or of a background
(or through past business dealings) unacceptable to Landlord; the proposed
transferee's business may achieve lower gross sales and therefore provide
less percentage rent to Landlord; the business to be conducted by the
proposed transferee is not compatible with that of other tenants in the
shopping center, or is not likely to enhance the draw of customers to the
shopping center; the proposed assignee desires material changes to the
Demised Premises, without regard to responsibility for the costs of such
changes; the proposed transfer will create a vacancy elsewhere in the
shopping center or in other property owned by the Landlord; the proposed
transferee is a person with whom Landlord is, or recently has been,
negotiating to lease space in property owned by Landlord, including the
shopping center; Tenant is in default under the Lease, or has defaulted
hereunder on more than three (3) occasions during the twelve (12) months
preceding the request by Tenant; or the proposed business plan (or past
business history) indicates a possible likelihood of detriment to any
portion of the shopping center or to the rent to be received by Landlord
hereunder or under any other agreement to which Landlord is a party. In
addition, Landlord reserves the right to condition Landlord's consent to
any assignment, sublease, or other transfer upon Landlord's receipt of a
written agreement, executed by Tenant, pursuant to which Tenant shall pay
to Landlord all rent or other consideration received by Tenant from any
assignee, subtenant or transferee in excess of the rent called for
hereunder, or in the case of the sublease or transfer of a portion of the
Demised Premises, in excess of such rent fairly allocable to such portion.
Any such excess shall be considered rent to Landlord, and Landlord may
require its payment either in a lump sum, initially, or over the term of
the assignment, sublease or other transfer.
D. Modification to the Lease.
In order to facilitate the requested assignment of the Lease, Landlord may
suggest to Tenant modifications to the Lease or to the terms of the
material submitted to Landlord pursuant to this Article. Any such
suggestions shall not be deemed a consent or conditional consent to the
proposed transaction; only an unconditional written consent, signed by
Landlord, shall be binding upon Landlord.
E. Limitation of Landlord's Consent.
The consent to any proposed assignment of the Lease:
(i) shall not be deemed to be a consent to any subsequent
attempted or proposed assignment of the Lease;
(ii) shall not be deemed to be a consent to any change in the use
of the Premises or the trade name under which the Premises are
to be operated; or
(iii) shall not in any way relieve Tenant, or any Guarantor, and /or
any Subsequent assignee or Guarantor of liability under this
Lease. Any attempted or purported assignment of the Lease made
without obtaining the prior written consent of Landlord shall,
at the option of Landlord, be null and void and /or constitute
a default under this Lease.
F. Corporate Stock or Partnership Interests of Tenant.
In the event Tenant is a corporation whose stock is not traded on a public
stock exchange, or in the event Tenant is a partnership, any attempted
dissolution, merger, consolidation, or other reorganization of such
corporation or partnership, or any attempted sale or other transfer of a
controlling percentage of the corporate stock of Tenant, or of controlling
partnership interests in Tenant, as the case may be, shall constitute an
attempted assignment of the Lease for all purposes of this Article. The
term "controlling percentage" means the ownership of stock or partnership
interest possessing or having the right to exercise at least thirty
percent (30%) of the total combined voting power of all classes of such
stock or partnership interests.
23. DEFAULT.
If Tenant fails to make any payment required by the provisions of this
Lease when due, or fails within a reasonable period of time, not to exceed
thirty (30) days, after written notice thereof to correct any breach or
default of the other covenants, terms or conditions of this Lease, or if
Tenant breaches this Lease and abandons the property before the end of the
term, Landlord shall have the
right at any time thereafter to elect to terminate said Lease and Tenant's
right to possession thereunder. Upon such termination, Landlord shall have
the right to recover against Tenant:
A. The worth at the time of award of the unpaid rent which had been
earned at the time of termination;
B. The worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that the Tenant
proves could have been reasonably avoided;
C. The worth at the time 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 Tenant proves could be
reasonably avoided; and
D. Any other amount necessary to compensate the Landlord for all the
detriment consequentially caused by Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of
things would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to in
subparagraphs A and B above shall be computed by allowing interest
at ten percent (10%) per annum. The worth at the time of award of
the amount referred to in subparagraph C shall be computed by
discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
Such efforts as Landlord may make to mitigate the damages caused by
Tenant's breach of this Lease shall not constitute a waiver of
Landlord's right to recover damages against Tenant hereunder, nor
shall anything herein contained affect Landlord's right to
indemnification from Tenant for any liability arising prior to the
termination of this Lease for personal injuries or property damage,
and Tenant hereby agrees to indemnify and hold Landlord harmless
from any such injuries or property damage, including all attorneys'
fees and costs incurred by Landlord in defending any action brought
against Landlord for any recovery thereof, and in enforcing the
terms and provisions of this indemnification against Tenant.
Notwithstanding any of the foregoing, the breach of this Lease by
Tenant, or any abandonment of the Demised Premises by Tenant, shall
not constitute a termination of this Lease, or of Tenant's right of
possession hereunder, unless and until Landlord elects to do so, and
until such time Landlord shall have the right to enforce all of its
rights and remedies under this Lease, including the right to recover
rent, and all other payments to be made by Tenant hereunder, as it
becomes due; provided, that until such time as Landlord elects to
terminate this Lease, and Tenant's right of possession hereunder,
Tenant shall have the right to sublet the Demised Premises or to
assign its interests in this Lease, in accordance with the terms of
this Lease.
The parties hereto agree that acts of maintenance or preservation or
efforts to release the Demised Premises, or the appointment of a
receiver upon the initiative of the Landlord to protect its
interests under this Lease shall not constitute a termination of
Tenant's right of possession unless accompanied by a written notice
from Landlord to Tenant of Landlord's election to so terminate.
24. ASSIGNMENT OF RENTS.
As security for the performance by Tenant of all of its duties and
obligations hereunder, Tenant does hereby assign to Landlord the right,
power and authority, during the continuance of this Lease, to collect the
rents, issues and profits of the Demised Premises, reserving onto Tenant
the right, prior to any breach or default by it hereunder, to collect and
retain said rents, issues and profits as they become due and payable. Upon
any such breach or default, Landlord shall have the right at any time
thereafter, without notice except as provided for above, either in person,
by agent or by a receiver to be appointed by a court, to enter and take
possession of said Demised Premises and collect such rents, issues and
profits, including those past due and unpaid, and apply the same, less
costs and expenses of operation and collection, including reasonable
attorneys' fees, upon any indebtedness secured hereby, and in such order
as Landlord may determine.
Landlord's remedies under this Lease are cumulative, and shall be in
addition to any other remedies and rights Landlord may have at law or in
equity.
25. TENANT'S FINANCIAL CONDITION.
Tenant acknowledges that Landlord has executed this Lease in reliance on
the financial information furnished by Tenant to Landlord as to Tenant's
financial condition. In the event that it is determined by any time
subsequent to the date of this Lease that any of the financial information
furnished by Tenant is substantially untrue or inaccurate, Tenant shall be
deemed to be in default under this Lease, which default shall not be
subject to cure, and which shall entitle Landlord to exercise all remedies
reserved to Landlord under this Lease or otherwise available to Landlord
at law.
26. NO WAIVER OF BREACHES.
The subsequent acceptance of rental hereunder by landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to
pay the particular rental so accepted, regardless of Landlord's knowledge
of such preceding breach at the time of acceptance of such rental. No
term, covenant or condition of this Lease shall be deemed to have been
waived by Landlord unless such waiver be in writing and signed by
Landlord.
27. INSOLVENCY OF TENANT.
Tenant agrees that in the event all, or substantially all, of its assets
are placed in the hands of a receiver or trustee, and in the event such
receivership or trusteeship continues for a period often (10) days, or
should Tenant make an assignment for the benefit of creditors or be
adjudicated a bankrupt, or should Tenant institute any proceedings under
any state or federal bankruptcy act wherein Tenant seeks to be adjudicated
a bankrupt, or seeks to be discharged of its debts, or should any
involuntary proceeding be filed against Tenant under such bankruptcy laws
and Tenant consents thereto or acquiesces therein by pleading or default,
then this Lease or any interest in and to the Demised Premises shall not
become an asset in any of such proceedings and, in any of such events and
in addition to any and all rights or remedies of Landlord hereunder or as
provided by law, it shall be lawful for Landlord at his option to declare
the term hereof ended and to re-enter the Demised Premises and take
possession thereof and remove all persons therefrom and Tenant shall have
no further claim herein or hereunder.
28. SURRENDER OF LEASE.
The voluntary or other surrender of this Lease by Tenant, or of mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may
, at the option of Landlord, operate as an assignment to him of any or all
of such subleases or subtenancies.
29. SALE OF PREMISES BY LANDLORD.
In the event of any sale of the Demised Premises by Landlord, Landlord
shall be and is hereby entirely freed and relieved of all liability under
any and all of its covenants and obligations contained in or derived from
this Lease arising out of any act, occurrence or omission occurring after
the consummation of such sale; and the purchaser, at such sale or any
subsequent sale of the Demised Premises, shall be deemed without any
further agreement between the parties or their successors in interest or
between the parties and any such purchaser, to have assumed and agreed to
carry out any and all of the covenants and obligations of the Landlord
under this Lease.
30. HOURS OF BUSINESS.
Subject to the provisions of Article 17 hereof, Tenant shall continuously
during the entire term hereof conduct and carry on, under the trade name
and style set forth in Article 1, above, Tenant's business in the Demised
Premises and shall keep the Demised Premises open for business and cause
Tenant's business to be conducted therein during the hours agreed mutual
agreement between Landlord and Tenant to be open for business; provided,
however, that this provision shall not apply if the Demised Premises
should be closed and the business of Tenant temporarily discontinued
therein on account of strikes, lockouts, or similar causes beyond the
reasonable control of Tenant, or closed for not more than three (3) days
out of respect to the memory of any deceased officer or employee of
Tenant, or the relative of any such officer or employee. Tenant shall keep
the Demised 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 practices. Tenant expressly
acknowledges that the ongoing conduct of Tenant's business in the Demised
Premises is of material concern to Landlord, and that Landlord may suffer
economic harm and other detriment through Tenant's failure to conduct the
business as aforesaid, and that the failure to conduct the business in the
manner described herein shall be a material breach of this Lease,
notwithstanding Tenant's current payment of rent and related charges.
31. ATTORNEYS' FEES.
If any dispute or action between Landlord or Tenant arises out of this
Lease, the prevailing Party in such dispute or action shall be entitled to
recover its reasonable attorneys' fees from the other as determined by the
court. If Landlord is involuntarily made a party defendant to any
litigation concerning this Lease or the Demised Premises by reason of any
act or omission of Tenant, then, Tenant shall hold harmless Landlord from
all liabilities by reason thereof, including reasonable attorneys' fees
and all costs incurred by Landlord in such litigation.
32. SECURITY DEPOSIT.
Tenant contemporaneously with the execution of this Lease, has deposited
with Landlord the sum of Thirty Thousand and 00/100 Dollars ($30,000.00)
receipt of which is hereby acknowledged by Landlord, said deposit being
given to secure the faithful performance by the Tenant of all of the
terms, covenants, and conditions of this Lease by the Tenant to be kept
and performed during the term hereof. Tenant agrees that if the Tenant
shall fail to pay the rent herein reserved promptly when due, said deposit
may, at the option of the Landlord (but Landlord shall not be required to)
be applied to any rent due and unpaid, and if the Tenant violates any of
the other terms, covenants, and conditions of this Lease, said deposit
shall be applied to any damages suffered by Landlord as a result of
Tenant's default to the extent of the amount of the damages suffered.
Nothing contained in this Article 32 shall in any way diminish or be
construed as waiving any of Landlord's other remedies as provided in
Article 23 hereof, or by law or in equity. Should the entire security
deposit, or any portion thereof, be appropriated and applied by Landlord
for the payment of overdue rent or other sums due and payable to Landlord
by Tenant hereunder, then Tenant shall on the written demand of Landlord,
forthwith remit to Landlord a sufficient amount in cash to restore said
security deposit to its original amount, and Tenant's failure to do so
within fifteen (15) days after receipt of such demand, shall constitute a
breach of this Lease. Should Tenant comply with all of the terms,
covenants, and conditions of this Lease and promptly pay all of the rental
herein provided for as it falls due, and all other sums payable by Tenant
to Landlord hereunder, such security deposit shall be returned in full to
Tenant of the end of the term of this Lease, or upon the earlier
termination of this Lease pursuant the provision of Article 21 hereof,
except in the event the Demised Premises are sold as a result of the
exercise of any power of sale under any mortgage or deed of trust, in
which event this lease shall be automatically amended to delete any
reference to this Article 32, and Tenant shall be entitled to immediate
reimbursement of its security deposit from the party then holding said
deposit. Any funds held by Landlord as a security deposit pursuant to this
paragraph which are ultimately returned to Tenant shall be returned
without accruing any interest on said security deposit funds.
33. HOLDING OVER.
Any holding over after the expiration of the term of this Lease, with the
consent of Landlord, shall be construed to be a tenancy from month to
month, cancelable upon thirty (30) days written notice, and at a rental
and upon terms and conditions as existed during the last year of the term
hereof, except that the Guaranteed Minimum Monthly Rental shall be
increased to one hundred and ten percent (110%) of the Guaranteed Minimum
Monthly Rental during the last year of the term hereof, or fair market
value, whichever is greater.
34. NOTICES.
Wherever in this Lease it shall be required or permitted that notice and
demand be given or served by either party to this Lease to or on the
other, such notice or demand shall be given or served and shall not be
deemed to have been duly given or served unless in writing and forwarded
by certified mail, return receipt requested, addressed as follows:
TO: Landlord TELEPHONE: (000) 000-0000
Mar,L.L.C.
AT: 000 X. Xxxxxxxx Xxxx.,
Xxxxx 000 Xxxxxxxx Xxxx,
XX 00000
TO: Tenant TELEPHONE: (626) _________
Top Group Holdings, Inc.
AT: Premises or
Either party may change such address by written notice by certified mail
to the other.
Notices or demands shall also be deemed to be properly given or served if
successfully transmitted on facsimile machine, telecopier, or telex,
provided that the party to whom such notice or demand is given has such a
machine in operation. All notices and demands shall be deemed given upon
transmittal, which, in the case of mail, shall be upon mailing.
35. SUCCESSORS IN INTEREST.
The covenants herein contained shall, subject to the provisions as to
assignment and sale of the Demised Premises by Landlord apply to and bind
the heirs, successors, executors, administrators and assigns of all the
parties hereto; and all of the parties hereto shall be jointly and
severally liable hereunder.
36. TENANT'S PERFORMANCE.
In the event Tenant shall fail within any time limits which may be
provided herein to complete any work or perform any other requirements
provided to be performed by Tenant prior to the commencement of the term
hereof, or in the event Tenant shall cause a delay in the completion of
any work, Landlord may send Tenant written notice of said default and if
said default is not corrected within ten (10) days thereafter, Landlord
may by written notice prior to the curing of said default terminate this
Lease. Landlord shall be entitled to retain as liquidated damages all
deposits made hereunder and such improvements as Tenant may have annexed
to the real estate that cannot be removed without damage thereto.
37. FORCE MAJEURE.
If either party hereto shall be delayed or prevented from the performance
of any act required hereunder by reason of acts of God, strikes, lockouts,
labor troubles, objective inability to procure materials, restrictive
governmental laws or regulations or other cause without fault and beyond
the control of the party obligated (financial ability excepted),
performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay; provided, however, nothing
in this Article 37 contained shall excuse Tenant from the prompt payment
of any rental or other charge required of Tenant hereunder except as may
be expressly provided elsewhere in this Lease.
38. PARTIAL INVALIDITY.
If any term, covenant, condition or provision of this Lease is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions herein shall remain in full force and effect
and shall in no way be affected, impaired or invalidated thereby.
39. MARGINAL CAPTIONS.
The various headings and numbers herein and the grouping of the provisions
of this Lease into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part thereof.
40. TIME.
Time is of the essence of this Lease.
41. SUBORDINATION, ATTORNMENT.
This Lease, at Landlord's option, shall be subordinate to the lien of any
first deed of trust or first mortgage subsequently placed upon the real
property of which the Demised Premises are a part, and to any and all
advances made on the security thereof, and to all renewals, modifications,
consolidations, replacement and extensions thereof; provided, however,
that as to the lien of any such deed of trust or mortgage Tenant's right
to quiet possession of the Demised Premises shall not be disturbed if
Tenant is not in default and so long as Tenant shall pay the rent and
observe and perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms. If any mortgagee, trustee
or ground lessor shall elect to have this Lease prior to the lien of its
mortgage, deed of trust, or ground lease, and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed
of trust or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording 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 Landlord covering the Demised Premises, Tenant shall attorn to
the purchaser upon any such foreclosure or sale and recognize such
purchaser as the Landlord under this Lease. At the option of any holder of
any first mortgage or deed of trust encumbering the real property of which
the Demised Premises are a part ("Lender"), the Lender shall have the
right to cause this Lease to be prior and superior to the lien of the
Lender's mortgage or deed of trust effective upon written notice by the
Lender ("Lender's Notice") to Tenants. Upon the giving of Lender's Notice
to Tenant, this Lease shall automatically be deemed to be prior and
superior to the Lender's mortgage or deed of trust and no further
instrument shall be required in order for the provisions of this paragraph
to be effective. Within ten (10) days after the Lender's request, Tenant
shall execute and deliver to the Lender any agreement requested by the
Lender to evidence the provisions of this paragraph; provided, however,
that Tenant's failure to execute any such agreement shall in no way affect
the self-operative nature of Lender's Notice.
Notwithstanding anything to the contrary contained in this Lease, no
Lender who acquires title to all or part of the real property of which the
Demised Premises are a part (a) shall be liable for any act or omission of
any prior Landlord under this Lease; (b) shall be subject to any offset,
defense or counterclaim which Tenant may have against a prior Landlord
under this Lease; or (c) shall be obligated (i) to return any security
deposit now or hereafter paid by Tenant under this Lease; (ii) to return
any prepaid rent or other amounts prepaid by Tenant under this Lease; or
(iii) to grant Tenant a credit for any such security deposit, prepaid
rent, or other prepaid amounts (excluding monthly rent and other charges
which have not been prepaid for more than one month in advance), except to
the extent, if any, that such Lender has actually and unconditionally
received such security deposit, prepaid rent, or other prepaid amounts.
Nothing contained in this paragraph shall be deemed to affect Tenant's
right to terminate this Lease based upon a breach of this Lease by
Landlord, subject to the provisions of this lease for notice and an
opportunity to cure which run in favor of Landlord and the Lender.
42. ESTOPPELS.
If upon any sale, assignment, or hypothecation of the Demised Premises or
the land thereunder by Landlord, or at any other time, an estoppel
certificate and/or financial statement shall be requested of Tenant,
Tenant agrees within ten (10) days thereafter, to deliver such financial
statement, and to deliver such estoppel certificate (in recordable form)
addressed to any such proposed mortgagee or purchaser or to the Landlord
certifying the requested information, including among other things the
dates of commencement and termination of this Lease, the amounts of
security deposits, and that this Lease is in full force and effect ( if
such be the case) and that there are no differences, offsets or defaults
of Landlord, or noting such differences, offsets or defaults as actually
exist. Tenant shall be liable for any loss or liability resulting from any
incorrect information certified, and such mortgagee and purchaser shall
have the right to rely on such estoppel certificate and financial
statement. Tenant shall in the same manner acknowledge and execute any
assignment of rights to receive rents as required by any mortgagee of
landlord.
Tenant acknowledges that Landlord may suffer substantial economic and
other injury if Tenant fails to supply any such requested item. Therefore,
should Tenant fail to supply such estoppel certificate, financial
statement or assignment of rights within ten (10) days of the service on
Tenant of a request for same, Tenant shall pay to Landlord additional rent
equal to one-thirtieth (1/30) of the Guaranteed Minimum Monthly Rental for
each day commencing with the eleventh day after said notice, until such
item has been received. The daily additional rent shall be in addition to
all other rent hereunder, shall be due and payable daily, and shall be in
default if not so paid.
43. REVISION OF EXHIBIT A.
Following the commencement of the term, Landlord shall have the right, in
Landlord's sole discretion, from time to time:
A. To make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas,
walkways and utility raceways;
B. To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
C. To designate other land outside the boundaries of the Shopping
Center to be a part of the Common Areas;
D. To add additional buildings and improvements to the Common Areas;
E. To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Shopping Center, or any
portion thereof; and
F. To do and perform such other acts and make such other changes in, to
or with respect to the Common Areas and Shopping Center as Landlord
may, in the exercise of sound business judgment, deem to be
appropriate.
44. CONDEMNATION.
In the event of a condemnation or a transfer in lieu thereof, twenty
percent (20%) or more of the Demised Premises is taken, or in the event as
a result of such taking or transfer in lieu thereof, Landlord is unable to
provide the parking required by Article 7 hereof, Landlord or Tenant may,
upon written notice given within thirty (30) days after such taking or
transfer in lieu thereof, terminate this Lease. Tenant shall not be
entitled to share in any portion of the award, and Tenant hereby expressly
waives any right or claim to any part thereof. Tenant shall, however, have
the right to claim and recover, only from the condemning authority ( but
not from landlord), any amounts necessary to reimburse Tenant for the cost
of removing stock and fixtures.
45. NO ORAL AGREEMENTS OR REPRESENTATIONS.
This Lease covers in full each and every agreement of every kind or nature
whatsoever between the parties hereto concerning this Lease, and all
preliminary negotiations and agreement of whatsoever kind or nature are
merged herein, and there are no oral agreements or implied covenants.
Without limiting the foregoing, Landlord specifically does not warrant
that any other occupant, present or future, in the shopping center of
which the Demised Premises is a part, shall be or remain an occupant
during the term of the Lease. Landlord does not warrant that any
particular tenant, user or type of use shall be present in the shopping
center, notwithstanding any notations on Exhibit A or any other site plan
or schematic representation now or hereafter in existence.
46. MERCHANTS' ASSOCIATION.
A Merchants' Association will be created if by a two-thirds written vote
of the tenants, the tenants so elect. For all purposes in connection with
the Merchants' Association, each individual lease shall create a separate
member tenant, even if one lessee occupies more than one store. As soon as
the Merchants' Association has been formed Tenant will become a member,
participate fully, and remain in good standing in it, and abide by its
regulations. Each member tenant shall have one vote in the operation of
said Association. The objects of such Association shall be to encourage
its members to deal fairly and courteously with their customers, to sell
their merchandise of service at fair prices, to follow ethical business
practices, to assist the business of the tenants by sale promotions and
center-wide advertising. The tenant agrees to pay dues to the Merchants'
Association as approved by a majority vote of the members of the
Association, increasing said dues to the extent required by increases in
the costs of promotional, public relations and advertising services, or as
the members may agree. Nothing in the Bylaws or regulations of the said
Association shall conflict with the provisions of this Lease or in any way
shall affect the rights of the Landlord. Landlord shall have no obligation
to participate in such Merchant's Association, or to contribute to its
support.
47. LIMITATION OF LIABILITY.
Tenant expressly agrees that its sole recourse in the event of a claim of
default by Landlord shall be against Landlord itself, and Tenant shall
have no recourse against, nor will it xxx, name, seek to execute against
or otherwise subject to legal process any officer, director, or
shareholder of Landlord in connection with any breach, claim of breach or
action for performance or declaration of rights related to this
transaction contemplated by this Agreement. Landlord shall not be in
default unless Landlord fails to perform obligations required of Landlord
within a reasonable time, but in no event later than thirty (30) days
after written notice by Tenant to Landlord and to any Lender whose name
and address shall have previously been furnished to Tenant in writing,
specifying the obligation which Landlord has failed to perform; provided,
however, that if the nature of Landlord's obligation is such that more
than thirty (30) days are required for performance, then Landlord shall
not be in default if Landlord commences performance within such 30-day
period and thereafter diligently pursues the same to completion.
48. WAIVER OF REDEMPTION BY TENANT.
Tenant hereby waives for Tenant and for all those claiming under Tenant
all right now or hereafter existing to redeem by order or judgment of any
court or by any legal process or writ, Tenant's right of occupancy of the
Premises after any termination of this Lease.
49. CAPACITY AND AUTHORITY.
If Tenant is a corporation, Tenant and each individual executing this
Lease on Tenant's behalf, warrants, by its executing hereof, that Tenant
is in good standing, authorized to do business in California, and
authorized and empowered to execute and deliver this Lease, and to perform
the acts provided for herein. If Tenant is a partnership, joint venture,
or other unincorporated association, each individual executing the Lease
on behalf of Tenant represents and warrants that the entity is duly formed
and authorized to do business in California, and upon such execution, the
entity shall be fully bound to perform hereunder. In all events, Tenant
and the individuals executing this Lease on Tenant's behalf, shall, upon
Landlord's request, supply Landlord with written certificates or other
appropriate indicia of authority and capacity.
50. GUARANTEE.
If this lease shall have been guaranteed, any such guarantee shall be
deemed a material part of the consideration for Landlord's execution of
this Lease. If the guarantor under any such guarantee is or becomes
bankrupt or insolvent, makes an assignment for the benefit of creditors,
or institutes or is the subject of any proceeding under the Bankruptcy Act
or other similar law for the protection of creditors (or, if the guarantor
is a partnership or consists of more than one person or entity, if any
partner of the partnership or such other person or entity is or becomes
bankrupt or insolvent, institutes any such proceeding, or makes an
assignment for the benefit of creditors), then Landlord shall have the
option to terminate this Lease upon thirty (30) days written notice unless
Tenant, within such thirty (30) day period, provides Landlord with either
(i) a substitute or additional guarantor satisfactory to Landlord and any
Mortgagee of Landlord, or (ii) adequate assurance of the performance of
each and every obligation of Tenant hereunder, satisfactory to Landlord
and such Mortgagee; provided, however, that no such termination of this
Lease shall become effective without the prior written consent of such
Mortgagee, if required under any agreements between Landlord and such
Mortgagee.
51. OPTION TO RENEW.
(A) Option Conditions: Tenant shall have the option to extend the term
of this Lease for one (1) additional five-year period commencing
upon the expiration of the initial five-year term hereof. The option
to extend the term of the Lease shall automatically be exercised
unless Tenant delivers to Landlord written notice of Tenant's intent
not to exercise such option which shall be given to Landlord in
writing not less than six (6) months prior to the expiration of the
initial five-year term. In addition to the foregoing, the option
shall lapse and terminate if Tenant shall have previously breached
or otherwise failed to perform under the Lease since its inception;
Landlord at his sole discretion, may declare the option to extend
null and void.
(B) Option Terms: In the event Tenant shall exercise its option to
extend the term of this Lease, as herein above provided, all
covenants, conditions, and provisions of this Lease shall be and
remain in full force and effect, except the minimum monthly rent
shall be annually increased by four percent (4%).
IN WITNESS WHEREOF, the parties have duly executed this Lease together
with the herein referred to Exhibits which are attached hereto, on the
date and year first above written.
DATE: _______________________ DATE:
LANDLORD: TENANT:
Mar, Limited Liability Company Top Group Holdings, Inc
_______________________________ By:
Xxxxx X. Mar
Its:
