99 CENTS ONLY STORES
STANDARD MULTI-TENANT FORM LEASE
The Gardens Center, Hawaiian Gardens, CA
THIS LEASE (this "Lease") is made and executed this 8th day of February,
1995 by and between Hawaiian Gardens Redevelopment Agency, a California
Governmental Entity (the "Landlord"), and 99CENTS Only Stores, a California
corporation (the "Tenant"), who agree as follows:
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article One explain and define the Basic Terms and are
to be read in conjunction with the Basic Terms. In the event of any conflict or
contradiction between this Article One and such other Articles, Sections and
Paragraphs of the Lease, such other Articles, Sections and Paragraphs shall
control and supersede the provisions of this Article One in regards to such
conflict or contradiction.
Section 1.01. Landlord's Address:
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
ATTN: Executive Director
Section 1.02. Tenant's Address:
0000 Xxxx Xxxxx Xxxxxxx Xxxxxx
Xxxx xx Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
ATTN: Real Estate Department
Section 1.03. Property: The demised premises (the "Property") is
part of Landlord's multi-tenant real property known as The Gardens Center (the
"Shopping Center"). The Shopping Center includes the land, the buildings and
all other improvements located on the land, and the Common Areas described in
Section 4.05(a). The Property is commonly known as 12123-12125 Xxxxxx Street,
Hawaiian Gardens California and is more specifically shown on the site plan
attached to this Lease as Exhibit "A" comprising approximately 15,042 square
feet of ground floor area.
Page 1 of 00
Xxx Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, XX
Section 1.04. Lease Term: Approximately seven (7) years beginning on
the date that Landlord delivers possession of the Property to Tenant in the
condition specified in Section 6.01 and ending on January 31, 2002 unless sooner
terminated in accordance with this Lease (the "Initial Lease Term"). Tenant
shall have the option to extend the Lease Term beyond the Initial Lease Term as
set forth in Section 2.02.
Section 1.05. Permitted Uses: General retail store use only as more
particularly described in Article 5 hereof.
Section 1.06. Prepaid Base Rent: Eighteen Thousand Dollars ($18,000)
(the "Prepaid Base Rent") payable upon execution of this Lease and to be applied
in accordance with Section 3.01.
Section 1.07. N/A
Section 1.08. Brokers: None.
Section 1.09. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Beginning on the Rent Commencement Date (as defined
in Section 3.01), Tenant shall pay the sum of Nine Thousand Dollars ($9,000) per
month (the "Base Rent") as rent for the Property. The Base Rent shall be
subject to adjustment as set forth in Section 3.03.
(b) OTHER PERIODIC PAYMENTS: (i) Property Taxes (See Section 4.02);
(ii) Utilities (See Section 4.03); (iii) Insurance Premiums (See Section 4.04);
(iv) Maintenance, Repairs and Alterations (See Article Six).
Section 1.10. Riders: The following Riders are attached to and made a
part of this Lease: None.
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property For Lease Term. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.04 above, and shall
begin and end
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on the dates specified in Section 1.04 above, unless the beginning or end of the
Lease Term is changed under any provision of this Lease. The "Commencement
Date" shall be the date specified in Section 1.04 above for the beginning of the
Lease Term, unless advanced or delayed under any provision of this Lease.
Section 2.02. Right to Extend Lease Term. Tenant shall have the
right to extend the Lease Term, on the terms and provisions set forth in this
Lease, for an additional five (5)-year period ("First Extended Term") following
expiration of the Initial Lease Term by giving written notice of exercise to
Landlord at least one hundred eighty (180) days prior to the expiration of the
Initial Lease Term. Tenant shall have the right to extend the Lease Term, on
the terms and provisions set forth in this Lease, for an additional five
(5)-year period ("Second Extended Term") following expiration of the First
Extended Term by giving written notice of exercise to Landlord at least one
hundred eighty (180) days prior to the expiration of the First Extended Term.
The Base Rent during any such Extended Terms shall be subject to increase as set
forth in Section 3.03.
Section 2.03. Delivery of Property. Landlord shall deliver
possession of the Property to Tenant in the condition specified in Section 6.01
on or before July 31, 1995, and after having provided Tenant with a written
Notice setting forth the anticipated date of delivery at least thirty (30) days
before such anticipated delivery date. The date that Landlord so delivers
possession of the Property and Tenant accepts possession, shall hereinafter be
referred to as the "Delivery Date". Within ten (10) days after such Delivery
Date, Landlord shall send a written notice to Tenant memorializing the Delivery
Date, Commencement Date, and the Rent Commencement Date and if Tenant does not
object to such dates set forth in Landlord's notice within ten (10) calendar
days of receipt thereof, then such dates shall be deemed correct and such notice
shall be attached to this Lease and be incorporated herein. Landlord's failure
to so deliver possession of the Property shall constitute a material breach of
this Lease, and Tenant shall, without prejudice to any of Tenant's other rights
or remedies, have the right to terminate this Lease upon written notice by
Tenant to Landlord. If Tenant terminates this Lease pursuant to this Section,
Landlord shall immediately return to Tenant all prepaid
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rent, security deposits and other sums paid by Tenant to Landlord.
Section 2.04. Holding Over. If Tenant does not vacate the Property
upon the expiration or earlier termination of the Lease and Landlord thereafter
accepts rent from Tenant, Tenant's occupancy of the Property shall be a
"month-to-month" tenancy, subject to all of the terms of this Lease applicable
to a month-to-month tenancy.
Section 2.05. Contingency Period. Tenant shall have a period of time
following the execution of this Lease and ending 30 days thereafter to satisfy
itself that the Property is satisfactory for Tenant's intended use (the
"Contingency Period"). The date of expiration of the Contingency Period is
referred to in this Lease as the "Contingency Period Expiration Date." If Tenant
discovers that the Property is unsatisfactory for Tenant's intended use for any
reason, including, without limitation, the Property's noncompliance with
applicable ordinances or parking requirements, then Tenant shall have the right
to terminate this Lease by giving written notice of termination to Landlord at
any time prior to the Contingency Period Expiration Date. Upon Tenant giving
notice of termination, Landlord and Tenant shall be released from their
obligations under this Lease except that landlord shall immediately return to
Tenant all Prepaid Rent and other sums paid by Tenant hereunder. During the
Contingency Period, Tenant shall have the right to enter upon and inspect the
Property at all reasonable times and to conduct, at Tenant's expense, any
studies, tests, investigations or assessments as Tenant deems necessary or
appropriate. Tenant shall periodically communicate with Landlord as to the
progress of the investigations in connection with this Contingency Period and
any material findings in such regards. Tenant shall provide copies, within a
reasonable time after Landlord's request therefore, of any formal written
reports prepared for Tenant by licensed professionals, such as structural
engineers or environmental experts, in connection with such Contingency Period.
ARTICLE THREE: BASE RENT
Section 3.01 Time and Manner of Payment. Beginning on the Rent
Commencement Date (as defined below) and the first day
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of each calendar month thereafter, Tenant shall pay Landlord the Base Rent, in
advance. The Base Rent shall be payable at Landlord's address or at such other
place as Landlord may designate in writing. The Prepaid Base Rent shall be
applied to and be considered payment for the Base Rent payable for the first
full month immediately following the Rent Commencement Date. Base Rent for any
partial month shall be prorated based on the actual number of days in the
calendar month involved.
Section 3.02 Rent Commencement Date. For purposes of this Lease, the
"Rent Commencement Date" shall be Ninety (90) days after the Delivery Date.
Section 3.03 Base Rent Increases.
(a) The Base Rent shall be increased on February 1, 2002 and February
1, 2007 ("Rent Adjustment Dates"). The Base Rent shall be increased on each
Rent Adjustment Date during the Initial Lease Term (or any extension thereof, if
applicable) in accordance with the increase in the United States Department of
Labor, Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers
for the United States (base year 1982-84 = 100) (the "Index") as follows. The
Base Rent (for purposes of this Section 3.03(a), the "Comparison Base Rent") in
effect immediately before each Rent Adjustment Date shall be increased by the
percentage that the Index has increased from the date (for purposes of this
Section 3.03(a), the "Comparison Date") on which payment of the Comparison Base
Rent began through the month in which the applicable Rent Adjustment Date
occurs; provided, however, in no event shall the monthly Base Rent during the
First Extended Term be less than one hundred and twenty one percent (121%) nor
greater than one hundred and thirty five percent (135%) of the monthly Base Rent
during the Initial Lease Term, and in no event shall the monthly Base Rent
during the Second Extended Term be less than one hundred and fifteen percent
(115%) nor greater than one hundred and twenty five percent (125%) of the
monthly Base Rent during the First Extended Term.
(b) General CPI Provisions. Landlord shall notify Tenant of each
increase by a written statement which shall include the Index for the applicable
Comparison Date, the Index for the applicable Rent Adjustment Date, the
percentage increase between those two Indices, and the new Base Rent. Tenant
shall pay the new Base Rent from the applicable Rent Adjustment Date until the
next Rent Adjustment Date. Landlord's notice of
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increase may be given after the applicable Rent Adjustment Date, and Tenant
shall pay Landlord the accrued rental adjustment for the time elapsed between
the effective date of the increase and Landlord's notice of such increase at the
same time as the next Base Rent payment to Landlord is due. If the format or
components of the Index are materially changed after the Commencement Date,
Landlord shall substitute an index which is published by the Bureau of Labor
Statistics or similar agency and which is most nearly equivalent to the Index in
effect on the Commencement Date. The substitute index shall be used to
calculate the increase in the Base Rent unless Tenant objects to such index in
writing. If Tenant objects, Landlord and Tenant shall submit the selection of
the substitute index for binding arbitration in accordance with the rules and
regulations of the American Arbitration Association at its office closest to the
Property. The costs of arbitration shall be borne equally by Landlord and
Tenant.
Section 3.04. N/A
Section 3.05 Termination; Advance Payments. Upon termination of this
Lease under Article Seven (Damage or Destruction), Article Eight (Condemnation)
or any other termination not resulting from Tenant's default, and after Tenant
has vacated the Property in the manner required by this Lease, Landlord shall
immediately refund or credit to Tenant (or Tenant's successor) the unused
portion of the Security Deposit, any advance rent or other advance payments made
by Tenant to Landlord, and any amounts paid for Operating Expenses or otherwise
which apply to any time periods after the effective date of the termination of
the Lease.
Section 3.06. Work Letter. The work letter (the "Work Letter")
attached to this Lease as Exhibit "B" sets forth certain work and improvements
anticipated to be constructed by Tenant with respect to the Property prior to
Tenant's opening for business ("Tenant's Work"). Tenant shall pay for the cost
of constructing Tenant's Work. Following the execution of this Lease, Tenant
shall have the right to enter upon the Property for the purpose of constructing
Tenant's Work; provided, however, that prior to such entry, Tenant shall have
obtained the policies of insurance required to be obtained by Tenant under
Section 4.04 hereof and also providing that the Property is vacant at such
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time. For the purposes of Section 6.05, Tenant's Work is hereby approved.
Tenant's entry upon the Property pursuant to this paragraph shall not advance
the Commencement Date of this Lease. The Work Letter also sets forth certain
work to be performed by Landlord ("Landlord's Work") at Landlords sole cost and
expense. Landlord's Work and Tenant's Work shall be completed within the time
frames specified in the Work Letter. Landlord and Tenant hereby agree to
cooperate (including providing sufficient advance notice) with each other with
respect to their respective work as set forth in this Section 3.06, so as not to
unreasonably interfere with the other party's work and business operations.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY LANDLORD AND TENANT
Section 4.01 Additional Rent. All charges payable by Tenant other
than Base Rent are called "Additional Rent." Unless this Lease provides
otherwise, Tenant shall pay all Additional Rent then due with the next monthly
installment of Base Rent. The term "rent" shall mean Base Rent and Additional
Rent.
Section 4.02 Property Taxes.
(a) Real Property Taxes. Landlord is responsible for the payment of
all real property taxes on the Property (excluding any fees, taxes or
assessments against, or as a result of, any tenant improvements installed on the
Property by Tenant).
(b) Definition of "Real Property Tax." "Real property tax" means: (i)
any fee, license fee, license tax, business license fee, commercial rental tax,
or other tax imposed by any taxing authority against the Property (however not
including those specifically against Tenant's business); and (ii) any tax or
charge for fire protection, streets, sidewalks, road maintenance, refuse or
other services provided to the Property by any governmental agency.
(c) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade
fixtures, furnishings, equipment or any other personal property
belonging to Tenant. Tenant shall try to have personal property
taxed separately from the Property.
(ii) If any of Tenant's personal property is taxed with the
Property, Tenant shall pay Landlord the taxes for the personal
property within fifteen (15) days after Tenant receives a written
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statement from Landlord for such personal property taxes.
Section 4.03. Utilities. Tenant shall pay, directly to the
appropriate supplier, the cost of all natural gas, heat, light, power, sewer
service, telephone, water, refuse disposal and other utilities and services
supplied to the Property. However, if any services or utilities are jointly
metered with other parties, Tenant shall pay its reasonable share thereof to
Landlord within fifteen (15) days after receipt of Landlord's written invoice
therefore and such other supporting documentation as Tenant may reasonably
request.
Section 4.04. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall
maintain, at Tenant's sole cost and expense, a policy of commercial general
liability insurance (sometimes known as broad form comprehensive general
liability insurance) insuring Tenant against liability for bodily injury,
property damage (including loss of use of property) and personal injury arising
out of the operation, use or occupancy of the Property. Tenant shall name
Landlord as an additional insured under such policy. The initial amount of such
insurance shall be One Million Dollars ($1,000,000.00) per occurrence and shall
be subject to periodic adjustment based upon inflation, liability awards,
recommendation of Landlord's professional insurance advisers and other relevant
factors. The liability insurance obtained by Tenant under this Section 4.04(a)
shall (i) be primary and non-contributing; (ii) contain cross-liability
endorsements; and (iii) insure Landlord against Tenant's lack of performance
under Section 5.04. The amount and coverage of such insurance shall not limit
Tenant's liability nor relieve Tenant of any other obligation under this Lease.
(b) Property Insurance. During the Lease Term, Landlord shall
maintain, at Landlord's sole cost and expense, policies of insurance covering
loss of or damage to the Property in the full amount of its replacement value.
Such policy shall provide protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk), sprinkler leakage and any other perils which
Landlord deems reasonably necessary. Landlord shall have the right to obtain
flood and earthquake insurance if required by any lender holding a security
interest
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in the Property. Landlord shall not obtain insurance for Tenant's fixtures or
equipment or building improvements installed by Tenant on the Property. Tenant
shall not do or permit anything to be done which invalidates any such insurance
policies.
(c) Payment of Premiums. Upon Landlord's request, Tenant shall
deliver to Landlord a copy of any policy of insurance which Tenant is required
to maintain under this Section 4.04. At least thirty (30) days prior to the
expiration of any such policy, Tenant shall deliver to Landlord a renewal of
such policy. As an alternative to providing a policy of insurance, Tenant shall
have the right to provide Landlord a certificate of insurance, executed by an
authorized officer of the insurance company, showing that the insurance which
Tenant is required to maintain under this Section 4.04 is in full force and
effect and containing such other information which Landlord reasonably requires.
(d) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under this
Lease shall include a provision which requires the insurance carrier
to give Landlord not less than thirty (30) days' written notice prior
to any cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or
renewal to Landlord required under this Lease within thirty (30) days
following written request from Landlord for such evidence of
insurance, Landlord may obtain such insurance, in which case Landlord
shall immediately notify Tenant and Tenant shall reimburse Landlord
for the cost of such insurance within fifteen (15) days after receipt
of a statement that indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this
Lease with companies holding a "General Policy Rating" of B+ or
better, as set forth in the most current issue of "Best Key Rating
Guide". Landlord and Tenant acknowledge the insurance markets are
rapidly changing and that insurance in the form and amounts described
in this Section 4.04 may not be available in the future. Tenant
acknowledges that the insurance described in this Section 4.04 is for
the primary benefit of Landlord. If at any time during the Lease
Term, Tenant is unable to maintain the insurance
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required under the Lease, Tenant shall nevertheless maintain insurance
coverage which is customary and commercially reasonable in the
insurance industry for Tenant's type of business, as that coverage may
change from time to time.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights
of recovery against the other, or against the officers, employees,
agents or representatives of the other, for loss of or damage to its
property or the property of others under its control, if such loss or
damage is covered by any insurance policy in force (whether or not
described in this Lease) at the time of such loss or damage. Upon
obtaining the required policies of insurance, Landlord and Tenant
shall give notice to the insurance carriers of this mutual waiver of
subrogation.
Section 4.05. Common Areas; Use, Maintenance and Costs.
(a) Common Areas. As used in this Lease, "Common Areas" shall mean
all areas within the Shopping Center which are not leased or held for the
exclusive use of Tenant or other tenants, including, but not limited to, parking
areas, driveways, sidewalks, loading areas, access roads, lobby areas,
elevators, corridors, landscaping and planted areas as depicted on Exhibit "A."
Landlord shall not change the size, location, nature and use of any of the
Common Areas, including vehicle parking spaces, convert Common Areas into
leasable areas, or decrease Common Area land and/or facilities, without Tenant's
prior written consent, which shall not be unreasonably withheld. No activities
or changes are permitted to the Common Areas if they would materially affect
Tenant's use of the Property. Tenant may withhold its consent, in its sole and
absolute discretion, to any changes to the common area which would reduce the
amount of parking available to Tenant's customers, decrease visibility or access
to the Property, or reduce the effectiveness of Tenant's signage.
(b) Use of Common Areas. Tenant shall have the nonexclusive right
(in common with other tenants) to use the Common Areas for the purposes intended
at no additional cost to Tenant, subject to such reasonable rules and
regulations as Landlord may establish from time to time. Tenant shall abide by
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such rules and regulations and shall use its best efforts to cause others who
use the Common Areas with Tenant's express or implied permission to abide by
Landlord's rules and regulations. At any time, Landlord may temporarily close
any Common Areas to perform any acts in the Common Areas as, in Landlord's
judgment, are necessary to improve the Shopping Center; provided that Landlord
gives Tenant appropriate prior written notice and Landlord takes all reasonable
actions to avoid so doing during the months of November and December. Tenant
shall not interfere with the rights of Landlord, other tenants or any other
person entitled to use the Common Areas.
(c) Vehicle Parking. Tenant and its invitee and customers shall be
entitled to the nonexclusive use of all vehicle parking spaces in the Shopping
Center for non-reserved parking without the payment of any additional rent by
Tenant or charge to Tenant or its invitees or customers. All such vehicle
parking spaces shall be available only for customers of tenants of the shopping
center, other tenants of the Shopping Center and their employees shall not be
permitted to use any of the vehicle parking spaces. Handicapped spaces shall
only be used by those legally permitted to use them.
(d) Maintenance of Common Areas. Landlord shall maintain and operate
the Common Areas safely and in good order, condition and repair, all at
Landlord's sole cost and expense. Landlord's maintenance of the Common Areas
shall include, but not be limited to, the timely and first quality performance
of the following: Sweeping, trash removal, graffiti removal, deterring loitering
and panhandling, landscape planting and maintenance, asphalt maintenance,
security, painting exterior of structures, lighting, traffic and parking
control, and all other things normally done in the maintenance or operation of a
first class shopping center.
(e) Loading. Tenant shall be permitted, at all times, to use
portions of the Common Areas, labeled and depicted as "Tenant's Loading Areas"
on Exhibit "A", as necessary, for making deliveries of merchandise, storing
shopping carts, operating vending machines and otherwise as necessary for the
smooth and ordinary operation of its business. Subject to the provisions of
Section 6.05, as they apply to alterations, additions, and improvements of the
Property, Tenant may change Tenant's Loading Areas to facilitate Tenant's
receipt of merchandise and/or the storage/use of shopping carts, provided that
Tenant obtains
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Landlord's prior written consent, which shall not be unreasonably withheld.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Property only for
the purpose of conducting a general retail store (including, without limitation,
beer and wine sales for off-site consumption and all other merchandise generally
sold at Tenant's other locations), for business offices in connection therewith
and such other uses related or incidental thereto, consistent with all laws,
federal, state or local, and with any applicable regulation of any government
body and for no other purpose during the term of the Lease. Landlord agrees to
fully cooperate with Tenant in obtaining any desired permits from governmental
agencies or approvals from other tenants of the Shopping Center concerning
Tenant's use of the Property permitted or desired under this Lease, including,
without limitation, a beer and wine sales permit for off-site consumption.
Landlord shall indemnify and defend Tenant against any and all claims asserted
by third parties claiming that Tenant's use infringes any rights to exclusivity
which such third party may have in the Shopping Center. Tenant may use the
Property for other purposes with Landlords written consent which shall not be
unreasonably withheld. Nothing in this Article shall be construed as a covenant
by Tenant of continuous operations. Landlord represents and warrants to Tenant
that Tenant may transfer its beer and wine license for its existing business at
00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx without violating laws of the City of
Hawaiian Gardens or any entity associated therewith. Notwithstanding the prior
sentence, Tenant shall not sell any alcoholic beverages unless permitted to do
so by the California Department of Alcoholic Beverage Control, or such other
party which may have jurisdiction thereon.
Section 5.02. Manner of Use. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of tenants of the Shopping Center, or which constitutes a nuisance or
waste. Tenant shall obtain and pay for all permits required for Tenant's
occupancy of the Property and shall promptly take all actions necessary to
comply with all applicable statutes, ordinances,
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rules, regulations, orders and requirements regulating the use by Tenant of the
Property. Notwithstanding any other provision of this Lease, if at any time
during the Lease Term either the Property or the Shopping Center is not in
conformity with any present or future law or regulation relating to the use,
occupation or reconstruction thereof (including, without limitation, the
Americans with Disabilities Act, earthquake safety codes, fire sprinkler codes,
and laws governing the presence of regulated or hazardous substances (such as
asbestos) incorporated into the Property (which were not placed there by
Tenant)) or is subject to any order of any governmental agency ordering any
rebuilding, alteration or repair thereof, Landlord shall immediately at its own
cost and expense, and without any right of reimbursement from Tenant (unless the
work is required because of Tenant's particular use of the Property or the Lease
has been terminated under any provision of this Lease), effect such alterations
and repairs to the Property or the Shopping Center as may be necessary to comply
with such laws, regulations, orders or requirements. All such alterations and
repairs, if made to the Property, shall be made in accordance with the plans and
specifications approved in writing by Tenant.
Section 5.03 Signs. Tenant shall have the right to place such signs
on the exterior of the Property as Tenant may desire; provided that such signs
comply with applicable laws. Tenant shall have the right to use and modify any
sign area used by any prior tenant of the Property, whether such sign area is
located on the Property, within the Common Areas, or elsewhere in the Shopping
Center. Tenant shall also have the right to modify existing monument signage or
add additional monument signage in the Common Area or elsewhere in the Shopping
Center, subject only to applicable governmental approvals and any existing
written obligations of Landlord to existing tenants of the Shopping Center.
Landlord represents to Tenant that Landlord has disclosed to Tenant in writing
the relevant details of all such obligations. Landlord shall use its best
efforts to obtain any required approvals from the other tenants of the Shopping
Center and applicable governmental agencies in connection with any signs desired
to be installed by Tenant. For a period of time 60 days following the end of
the Lease term, Tenant shall be permitted to place two signs not to exceed 24
inches by 36 inches in size, in prominent places visible from the exterior of
the premises informing the public of Tenant's relocation and other similar
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information. Landlord shall cooperate with Tenant to obtain the best possible
signage in Tenant's judgement. Landlord shall seek the cooperation of the City
of Hawaiian Gardens and any entity affiliated therewith to obtain Tenant's
maximum desired signage.
Section 5.04. Indemnity. Except for losses, damages and claims
arising out of the acts or omissions of Landlord or Landlord's agents,
contractors and employees, Tenant shall indemnify Landlord against and hold
Landlord harmless from any and all costs, claims or liability arising from: (a)
Tenant's use of the Property; (b) the conduct of Tenant's business or anything
else done or permitted by Tenant to be done in or about the Property, (c) any
breach or default in the performance of Tenant's obligations under this Lease;
or (d) any misrepresentation or breach of warranty by Tenant under this Lease.
Tenant shall defend Landlord against any such cost, claim or liability at
Tenant's expense with counsel reasonably acceptable to Landlord.
Section 5.05. Landlord's Access. Landlord or its agents may enter
the Property at reasonable times to inspect the Property; or for any other
purpose Landlord deems reasonably necessary. Landlord shall give Tenant prior
notice of such entry, except in the case of an emergency.
Section 5.06. Quiet Possession. So long as Tenant is not in default
under this Lease, Tenant may occupy and enjoy the Property for the full Lease
Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Condition of Property. Landlord shall deliver the
Property to Tenant in a clean and good condition and with Landlord's Work as set
forth in Section 3.06 and Exhibit "B" complete on the Commencement Date.
Landlord warrants to Tenant to the best of Landlord's actual knowledge and
without any special inquiry or investigation, that the Property, in the state
existing on the Commencement Date, but without regard to alterations or
improvements made by Tenant or the use for which Tenant will occupy the
Property, does not violate any covenants or restrictions of record, or any
applicable building or other code, regulation or ordinance in effect on the
Commencement Date.
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In the event it is determined that any of the foregoing covenants or warranties
have been violated, then it shall be the obligation of Landlord, after written
notice from Tenant, to promptly, at Landlord's sole cost and expense, rectify
any such violation.
Section 6.02. Exemption of Landlord from Liability. Landlord shall
not be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares or property of Tenant, Tenant's employees,
invitee, clients, customers or any other person in or about the Property,
whether such damage or injury is caused by or results from: (a) theft, fire,
steam, electricity, water, gas or rain, (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or any other cause, (c) conditions arising in
or about the Property or upon other portions of the Shopping Center, or from
other sources or places or from new construction or repair of the Property or
the Shopping Center, or (d) any act or omission of any other tenant of the
Shopping Center; except for damage or injury caused by or resulting from
Landlord's (or its agents or contractor's) gross negligence or willful
misconduct or Landlord's failure to perform its obligations under this Lease.
Section 6.03. Landlord's Obligations. Except as provided in Article
Seven (Damage or Destruction) and Article Eight (Condemnation), Landlord, at its
sole cost and expense, shall keep the roof, foundations, exterior walls (except
for painting thereof), and sidewalks of the Property in good order, condition
and repair. Landlord shall make repairs under this Section 6.03 within a
reasonable time after receipt of written notice from Tenant of the need for such
repairs. Landlord represents and warrants to Tenant that, on the Commencement
Date, the heating, ventilation, air conditioning, electrical, plumbing and other
systems contained within or servicing the Property shall be in good working
condition and repair.
Section 6.04. Tenant's Obligations.
(a) Except as provided in Section 5.02, Section 6.03, Article Seven
(Damage or Destruction) and Article Eight (Condemnation), Tenant shall keep all
portions of the Property (excepting foundations, exterior walls, roofs and
sidewalks) in good order, condition and repair (including interior repainting
and refinishing, as needed). If any portion of the Property
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which Tenant is obligated to repair cannot be fully repaired or restored, Tenant
shall promptly replace such portion of the Property, regardless of whether the
benefit of such replacement extends beyond the Lease Term; but if the benefit or
useful life of such replacement extends beyond the remaining Lease Term (as such
term may be extended by exercise of any options), the cost of such replacement
shall be amortized over its useful life, and Tenant shall be liable only for
that portion of the amortized cost which is applicable to the remaining Lease
Term (as extended).
(b) Tenant shall fulfill all of Tenant's obligations under this
Section 6.04, except as otherwise provided, at Tenant's expense. If Tenant
fails to maintain, repair or replace the Property as required by this Section
6.04, Landlord may, upon ten (10) days' prior notice to Tenant (except that no
notice shall be required in the case of an emergency), enter the Property and
perform such maintenance or repair (including replacement, as needed) on behalf
of Tenant. In such case, Tenant shall reimburse Landlord for costs incurred in
performing such maintenance or repair for which Tenant is responsible
immediately upon demand.
Section 6.05. Alterations, Additions, and Improvements. (a) Tenant
shall not make any alterations, additions, or improvements to the Property
without Landlord's prior written consent, except for non-structural alterations
which do not exceed Ten Thousand Dollars ($10,000.00) in cost cumulatively over
the Lease Term. Landlord may require Tenant to provide demolition and/or lien
and completion bonds in form and amount satisfactory to Landlord. Tenant shall
promptly remove any alterations, additions, or improvements constructed in
violation of this Section 6.05(a) upon Landlord's written request and restore
such portions of the Property to their condition immediately prior to Tenant's
construction of such alterations, additions, or improvements. All alterations,
additions, and improvements shall be done in a good and workmanlike manner, in
conformity with all applicable laws and regulations, and by a contractor
approved by Landlord. Upon completion of any such work, Tenant shall provide
Landlord with "as built" plans, copies of all construction contracts, and proof
of payment for all labor and materials, to the extent that the same are
available to Tenant.
Page 16 of 33
(b) Tenant shall pay when due all claims for labor and material
furnished to the Property. Tenant shall give Landlord at least twenty (20)
days' prior written notice of the commencement of any work on the Property,
regardless of whether Landlord's consent to such work is required. Landlord may
elect to record and post notices of non-responsibility on the Property.
Section 6.06. Condition upon Termination. Upon the termination of
the Lease, Tenant shall surrender the Property to Landlord, broom clean and in
the same condition as received except for ordinary wear and tear which Tenant
was not otherwise obligated to remedy under any provision of this Lease.
However, Tenant shall not be obligated to repair any damage which Landlord is
required to repair under Article Seven or elsewhere under this Lease. In
addition, Landlord may require Tenant to remove any of Tenant's alterations,
additions or improvements (whether or not made with Landlord's consent) prior to
the expiration of the Lease and to restore the Property to its prior condition,
all at Tenant's expense. All alterations, additions and improvements which
Landlord has not required Tenant to remove shall become Landlord's property and
shall be surrendered to Landlord upon the expiration or earlier termination of
the Lease, except that Tenant may remove any of Tenant's trade fixtures,
machinery or equipment. Tenant shall repair, at Tenant's expense, any damage to
the Property caused by the removal of any such trade fixtures, machinery or
equipment. If any alteration, addition or improvement made by Tenant shall not
be in the condition required above for surrender, then Tenant may, at Tenant's
option, either restore such alteration, addition, or improvement to the required
condition or remove or restore such affected portion of the Property to its
condition immediately prior to such alteration, addition, or improvement.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the Property. If the Property is only partially
damaged (i.e., less than fifty percent (50%) of the Property is untenantable as
a result of such damage and less than fifty percent (50%) of Tenant's operations
are materially impaired) and if the proceeds received by Landlord from the
insurance policies described in Section 4.04(b) are
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sufficient to pay for the necessary repairs, this Lease shall remain in effect
and Landlord shall repair the damage as soon as reasonably possible. Landlord
may elect (but is not required) to repair any damage to Tenant's fixtures,
equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient
to pay the entire cost of repair, or if the cause of the damage is not covered
by the insurance policies which Landlord maintains under Section 4.04(b),
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage whether Landlord elects to repair the damage or terminate the
Lease. If Landlord elects to terminate this Lease, Tenant may elect to continue
this Lease in full force and effect, in which case Tenant shall repair any
damage to the Property and any building in which the Property is located.
Tenant shall pay the cost of such repairs, except that upon satisfactory
completion of such repairs, Landlord shall deliver to Tenant any insurance
proceeds received by Landlord for the damage repaired by Tenant. Tenant shall
give Landlord written notice of such election within ten (10) days after
receiving Landlord's termination notice, and in such event Landlord shall have
no responsibility to repair or replace Tenant's trade fixtures, inventory, or
other personal property, all of which shall be Tenant's responsibility to handle
as Tenant determines in Tenant's sole discretion.
(c) If the damage to the Property occurs during the last six (6)
months of the Lease Term and such damage will require more than thirty (30) days
to repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Tenant's notice to Landlord of the occurrence of the damage.
Section 7.02. Substantial or Total Destruction. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.02), and
regardless of whether Landlord receives any insurance proceeds, this Lease
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shall terminate as of the date the destruction occurred. Notwithstanding the
preceding sentence, if the Property can be rebuilt within six (6) months after
the date of destruction, Landlord may elect to rebuild the Property at
Landlord's own expense, in which case this Lease shall remain in full force and
effect. Landlord shall notify Tenant of such election within thirty (30) days
after Tenant's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense.
Section 7.03. Temporary Reduction of Rent. If the Property is
destroyed or damaged and Landlord or Tenant repairs or restores the Property
pursuant to the provisions of this Article Seven, any rent payable during the
period of such damage, repair and/or restoration shall be reduced according to
the degree, if any, to which Tenant's use of the Property is impaired.
ARTICLE EIGHT: CONDEMNATION
Section 8.01. If all or any portion of the Property is taken under
the power of eminent domain or sold under the threat of that power (all of which
are called "Condemnation"), this Lease shall terminate as to the part taken or
sold on the date the condemning authority takes title or possession, whichever
occurs first. If more than twenty percent (20%) of the floor area of the
building in which the Property is located, or which is located on the Property,
is taken, either Landlord or Tenant may terminate this Lease as of the date the
condemning authority takes title or possession, by delivering written notice to
the other within ten (10) days after receipt of written notice of such taking
(or in the absence of such notice, within ten (10) days after the condemning
authority takes title or possession). If neither Landlord nor Tenant terminates
this Lease, this Lease shall remain in effect as to the portion of the Property
not taken, except that the Base Rent and Additional Rent shall be reduced in
proportion to the reduction in the floor area of the Property. Any award for
the taking of all or any part of the Property or the Shopping Center under the
power of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Landlord; provided, however, that Tenant shall be
entitled to any award for (i) loss of or damage to Tenant's trade fixtures,
personal property and tenant improvements that have been paid for by Tenant and
(ii) the value
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of the leasehold estate (I.E., the leasehold bonus value). Landlord shall have
no obligation to assist (provide counsel) Tenant in obtaining any such award.
In the event that this Lease is not terminated by reason of such condemnation,
Landlord shall to the extent of severance damages received by Landlord in
connection with such condemnation, repair any damage to the Property caused by
such condemnation except to the extent that Tenant has been reimbursed therefor
by the condemning authority.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord's Consent Required. No portion of the
Property or of Tenant's interest in this Lease may be acquired by any other
person or entity, whether by sale, assignment, mortgage, sublease, transfer,
operation of law, or act of Tenant, without Landlord's prior written consent,
which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, assignment or subletting of the Property to an entity, which controls
or is controlled by or is under common control with Tenant, or to any affiliate
resulting from the merger or consolidation with Tenant, or to any person or
entity which acquires all the assets of Tenant as a going concern of the
business that is being conducted on the Property, shall not require Landlord's
consent. Landlord's consent to an assignment or subletting shall not be deemed
consent to a subsequent assignment or subletting.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Tenant's performance of
each of Tenant's obligations under this Lease is a condition as well as a
covenant. Tenant's right to continue in possession of the Property is
conditioned upon such performance.
Section 10.02. Defaults. Tenant shall be in material default under
this Lease:
(a) If Tenant abandons the Property or if Tenant's vacation of the
Property results in the cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge due within five
(5) days following written notice from Landlord that such sum is due;
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(c) If Tenant fails to perform any of Tenant's non-monetary
obligations under this Lease for a period of thirty (30) days after written
notice from Landlord; provided that if more than thirty (30) days are required
to complete such performance, Tenant shall not be in default if Tenant commences
such performance within the thirty (30)-day period and thereafter diligently
pursues its completion. The notice required by this Section is intended to
satisfy any and all notice requirements imposed by law on Landlord and is not in
addition to any such requirement.
(d) (i) If Tenant makes a general assignment or general arrangement
for the benefit of creditors; (ii) if a petition for adjudication of bankruptcy
or for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
located at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
Section 10.03. Remedies. On the occurrence of any material default
by Tenant, Landlord may, at any time thereafter, with or without notice or
demand and without limiting Landlord in the exercise of any right or remedy
which Landlord may have:
(a) Terminate Tenant's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including (i) the worth at the time of
the award of the unpaid Base Rent, Additional Rent and other charges which
Landlord had earned at the time of the
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termination; (ii) the worth at the time of the award of the amount by which the
unpaid Base Rent, Additional Rent and other charges which Landlord would have
earned after termination until the time of the award exceeds the amount of such
rental loss that Tenant proves Landlord could have reasonably avoided; (iii) the
worth at the time of the award of the amount by which the unpaid Base Rent,
Additional Rent and other charges which Tenant would have paid for the balance
of the Lease term after the time of award exceeds the amount of such rental loss
that Tenant proves Landlord could have reasonably avoided; and (iv) any other
amount necessary to compensate Landlord for all the detriment proximately 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, including, but
not limited to, any costs or expenses Landlord incurs in maintaining or
preserving the Property after such default, the cost of recovering possession of
the Property, expenses of reletting, including necessary renovation or
alteration of the Property, Landlord's reasonable attorneys' fees incurred in
connection therewith, and any real estate commission paid or payable. As used
in subparts (i) and (ii) above, the "worth at the time of the award" is computed
by allowing interest on unpaid amounts at the rate of fifteen percent (15%) per
annum, or such lesser amount as may then be the maximum lawful rate. As used in
subpart (iii) above, the "worth at the time of the award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus one percent (1%). If Tenant has
abandoned the Property, Landlord shall have the option of (i) retaking
possession of the Property and recovering from Tenant the amount specified in
this Section 10.03(a), or (ii) proceeding under Section 10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Property. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due; and/or
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
Section 10.04. Automatic Termination. Notwithstanding any other term
or provision hereof to the contrary, the Lease
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shall terminate on the occurrence of any act which affirms the Landlord's
intention to terminate the Lease as provided in Section 10.03 hereof, including
the filing of an unlawful detainer action against Tenant. On such termination,
Landlord's damages for default shall include all costs and fees, including
reasonable attorney's fees that Landlord incurs in connection with the filing,
commencement, pursuing and/or defending of any action in any bankruptcy court or
other court with respect to the Lease; the obtaining of relief from any stay in
bankruptcy restraining any action to evict Tenant; or the pursuing of any action
with respect to Landlord's right to possession of the Property. All such
damages suffered (apart from Base Rent and other rent payable hereunder) shall
constitute pecuniary damages which must be reimbursed to Landlord prior to the
assumption of the Lease by Tenant or any successor to Tenant in any bankruptcy
or other proceeding.
Section 10.05. Cumulative remedies. Landlord's exercise of any right
or remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Subordination. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded; provided that the holder of such encumbrance enters
into a commercially reasonable non-disturbance agreement with Tenant. Tenant
shall cooperate with Landlord and any lender which is acquiring a security
interest in the Property or the Lease. Tenant shall execute such further
documents and assurances as such lender may require, provided that Tenant's
obligations under this Lease shall not be increased in any material way (the
performance of ministerial acts shall not be deemed material), and Tenant shall
not be deprived of its rights under this Lease. Tenant's right to quiet
possession of the Property during the Lease term shall not be disturbed if the
Tenant pays rent and performs all of Tenant's obligations under this Lease and
is not otherwise in default. Landlord shall, promptly following execution of
this Lease, use its reasonable best efforts to cause any holder of an existing
ground lease,
Page 23 of 33
deed of trust or mortgage encumbering the Property or the Shopping Center to
enter into a commercially reasonable non-disturbance agreement with Tenant.
Section 11.02. Attornment. If Landlord's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Landlord's interest in the Property and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Property upon the transfer
of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver
any instrument or documents necessary or appropriate to evidence any such
attornment or subordination or agreement to do so. If Tenant fails to do so
within ten (10) days after written request, Tenant hereby makes, constitutes and
irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. Estoppel certificates. Upon Landlord's written
request, Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying: (i) that none of the terms or provisions of this Lease
have been changed (or if they have been changed, stating how they have been
changed); (ii) that this Lease has not been canceled or terminated; (iii) the
last date of payment of the Base Rent and other charges and the time period
covered by such payment; (iv) that Landlord is not in default under this Lease
(or, if Landlord is claimed to be in default, stating why); and (v) that Tenant
has accepted possession of the Property and the Lease is in full force and
effect. Tenant shall deliver such statement to Landlord within ten (10) days
after Landlord's request. Landlord may give any such statement by Tenant to any
prospective purchaser or encumbrancer of the Property. Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct.
Page 24 of 33
ARTICLE TWELVE: LEGAL COSTS
Section 12.01 Legal Proceedings. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Non-defaulting Party") upon demand for any costs
or expenses that the Non-defaulting Party reasonably incurs in connection with
any breach or default of the Defaulting Party under this Lease, whether or not
suit is commenced or judgment entered. Such costs shall include actual legal
fees and costs incurred for the negotiation of a settlement, enforcement of
rights or otherwise. Furthermore, if any action for breach of or to enforce the
provisions of this Lease is commenced, the court in such action shall award to
the party in whose favor a judgment is entered, a reasonable sum as attorneys'
fees and costs. The losing party in such action shall pay such attorneys' fees
and costs.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no discrimination
against, or segregation of, any person or group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
Section 13.02. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.03. Interpretation. The captions of the Articles or
Sections of this Lease are to assist the parties in reading this Lease and are
not a part of the terms or provisions of this Lease. Whenever required by the
context of this Lease, the singular shall include the plural the plural shall
include the singular. The masculine, feminine and neuter genders shall each
include the other. No provision of this Agreement is to be interpreted for or
against either party because that party or that party's legal representative
drafted such provision.
Page 25 of 33
Section 13.04. Incorporation of Prior Agreements; Modifications.
This Lease is the only agreement between the parties pertaining to the lease of
the Property and no other agreements are effective. All amendments to this
Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
Section 13.05. Notices. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by certified
mail, return receipt requested, postage prepaid. Notices to Tenant shall be
delivered to the address specified in Section 1.02 above. Notices to Landlord
shall be delivered to the address specified in Section 1.01 above. All notices
shall be effective upon delivery. Either party may change its notice address
upon written notice to the other party.
Section 13.06. Waivers. All waivers must be in writing and signed by
the waiving party. Landlord's failure to enforce any provision of this Lease or
its acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future.
Section 13.07. No Recordation. Neither party shall record this Lease
without prior written consent from the other party. However, either Landlord or
Tenant may require that a "Short Form" memorandum of this Lease executed by both
parties be recorded. The party requiring such recording shall pay all transfer
taxes and recording fees.
Section 13.08. Binding Effect; Choice of Law. This Lease binds and
inures to the benefit of any party who legally acquires any rights or interest
in this Lease from Landlord or Tenant. However, Landlord shall have no
obligation to Tenant's successor unless the rights or interests of Tenant's
successor are properly acquired in accordance with the terms of this Lease. The
laws of the state in which the Property is located shall govern this Lease.
Section 13.09. Corporate Authority; Partnership Authority. If
Landlord or Tenant is a corporation, each person signing this Lease on behalf of
such party represents and
Page 26 of 33
warrants that he has full authority to do so and that this Lease binds the
corporation. If Landlord or Tenant is a partnership, each person or entity
signing this Lease for such party represents and warrants that he or it is a
general partner of the partnership, that he or it has full authority to sign for
the partnership and that this Lease binds the partnership and all general
partners of the partnership.
Section 13.10. Execution of Lease. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument.
Section 13.11. Survival. All representations and warranties of
Landlord and Tenant shall survive the termination of this Lease.
Section 13.12. Confidentiality. The parties hereto shall keep this
Lease and all documents delivered pursuant to this Lease strictly confidential,
except as necessary for bona fide lenders, prospective purchasers, or to
governmental entities.
Section 13.13. Right of First Refusal. Should Landlord receive a
bonafide offer to purchase the Property or any portion of the Shopping Center
with commercially reasonable terms and conditions that Landlord is willing to
accept at any time during the Lease Term, Landlord shall so notify Tenant in
writing and provide Tenant with a copy of the offer or an appropriate written
description of the offer, and if Tenant do desires, Tenant may elect to purchase
the Property or applicable portion of the Shopping Center under the same terms
and conditions as the offer. If Tenant does not notify Landlord of its election
to purchase the Property or portion of the Shopping Center within ten (10)
working days after Tenant's receipt of Landlord's notice, then Landlord shall
have no further obligation to sell to Tenant. If Landlord does not consummate
any sale, or after the consummation of any such sale, then any subsequent offers
shall also me subject to this Section 13.13.
Section 13.14. Consent. All requests for consent or approval
required or permitted under this Lease shall be made in writing and in
reasonable detail and otherwise in the manner
Page 27 of 33
required for notices hereunder. No such requests for consent or approval shall
be unreasonably refused or delayed. Any refusal of any such request for consent
or approval shall also be made in writing and otherwise in the manner required
for notices hereunder and shall identify, in reasonable detail, the reasons for
such refusal. Without affecting the generality of this Section 13.14, unless
otherwise specifically stated in this Lease, if any such request for consent or
approval shall not be refused within ten (10) days after the making thereof,
then a second request for consent may then be made, and if such second request
for consent or approval shall not be refused within ten (10) days after the
making of such request, then such consent or approval shall be deemed granted.
Section 13.15. Brokers. Each of the parties represents and warrants
to the other that it has dealt with no broker, other than as set forth in
Section 1.08, in connection with this Lease, and, insofar as it knows, no other
broker or other person is entitled to any commission or fee in connection with
this Lease. Landlord represents and warrants to Tenant that Tenant shall have
no responsibility regarding any agreement made between Landlord and any broker
and that Tenant shall have no responsibility for the payment of any commission
or fee. Each of the parties hereby indemnifies the other against any commission
or fee such indemnifying party may have incurred in connection with this Lease.
Section 13.16. Police Substation. Tenant is aware that a portion of
the Shopping Center is to be used as a police substation. Tenant understands
that such use may not provide as much commercial traffic to the Shopping Center
as a retail or other commercial use. Providing that such use does not violate
other terms of this Lease, Tenant hereby consents to such use in the Shopping
Center.
ADDITIONAL PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED
HERETO. IF ADDITIONAL PROVISIONS ARE TO BE INSERTED, PLEASE CHECK BELOW.
( ) Rider Attached
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
effective as of the date first written above, and have initialed all Riders
which are attached to or incorporated by reference in this Lease.
"LANDLORD": Hawaiian Gardens Redevelopment Agency,
a California Governmental Entity
By: /s/ XXXXXX X. XXXXX 2-14-95 6:45 p.m.
---------------------------------------
Xxxxxx X. Xxxxx, Executive Director
"TENANT": 99CENTS ONLY STORES,
a California corporation
By: /s/ XXXX XXXX
---------------------------------------
Xxxx Xxxx, President
Page 29 of 33
EXHIBIT "A"
Description of Property, Common Areas and Shopping Center
[FLOOR PLAN]
Page 30 of 33
EXHIBIT "B"
Work Letter
Details of
Tenant's Work
and
Landlord's Work
[TO BE INSERTED AS SET FORTH IN LETTER DATED FEBRUARY 8, 1995]
Page 31 of 33
EXHIBIT "B"
Work Letter
A. TENANT'S WORK:
Tenant's work may include the following:
Installing new floor covering.
Adding, removing, or altering lighting.
Installing cardboard baler.
Installing alarm, phone, and PA systems.
Installing fixtures, equipment, and inventory.
Demolition of interior walls.
Building new partition walls.
Interior signage.
Modifying storefront glass.
Installing automatic door(s).
Installing window displays.
Modifying, removing, adding drop ceiling.
Installing drinking fountain and mop sink.
Neon lights on front of building.
Interior patching.
Interior painting.
Any other work deemed reasonably necessary by Tenant for Tenant's use.
Page 32 of 33
B. LANDLORD'S WORK:
Landlord's work shall include the following, which shall be completed prior to
the Delivery Date:
Landlord shall deliver the Property to Tenant in broom clean and good
condition, free of environmental hazards and in compliance with law.
The major systems shall be provided in good working order and of
sufficient capacity for the building and Tenant's use. These systems
shall include, but not be limited to, the roof, building structure,
main electrical (800 Amps), plumbing, HVAC (40 tons), and sewer
service. The building shall also be provided with 2 handicap
bathrooms to Health Department Codes. The floor slab shall be
substantially smooth and level for Tenant's installation of vinyl
floor tile. (Tenant shall be responsible for removing existing floor
coverings if Tenant so desires).
Loading facilities shall be created for Tenant's regular deliveries
via 45 and 48 foot semi-trucks and shall include:
One 10 foot by 12 foot commercial grade roll up door at rear of
building.
Gradually sloped ramp/driveway from loading door to street.
Loading zone.
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