HomeMy WebLinkAboutRIO VISTA WEST, LLC (10)A-2017.335
INSURANCE NOT ear-(�uI�rEr�
WORK MY PROCEED
CLERK OF COUNCIL
C o" ATP DEC SHOPPING CENTER LEASE - GROSS
1. Basic Provisions ("Basic Provisions").
SA?DCIS
LL„ JA rCNJ +,e- Ll Parties: This Shopping Center Lease ("Lease"), dated for reference purposes October 20, 2017 , is made by and
between Rio Vista West, LLC, a California Limited Liability Company ("Lessor") and The Santa Ana Police Department, a division
of the City of Santa Ana, a municipal cor oration ("Lessee") (collectively the "Parties", or individually a "Party"),
1.2 Premises: That certain portion of the Shopping Center (as defined below), including all improvements therein or to
be provided by Lessor under the terms of this Lease, commonly known by the street address of 3750 W McFadden Avenue Suite 1,
located in the City of, Santa Ana, County of Orange, State of California, with zip code 92704, as outlined on Exhibit A attached hereto
("Premises"), deemed to be approximately 989 rentable square feet of floor area. In addition. to Lessee's rights to use and occupy the
Premises as hereinafter specified, Lessee shall have non-exclusive lights to use the Common Areas (as defined in Paragraph 2.7
below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the building containing
the Premises ("Building") or to any other buildings in the Shopping Center. "The Premises and the Building are situated within the
Shopping Center known as Riverview West Marketplace, The Premises, the Building, the Common Areas and all other buildings and
improvements within said Shopping Center, together with the land upon which they are located, are herein collectively referred to as
the "Shopping Center," (See also Paragraph 2)
1.3 Term: Month to month ("Original Term"), commencing on November 1, 2017 ("Commencement Date") and
ending October l l 2018 ("Expiration Date"). (See also Paragraph 3)
L4 EarlyPossess'owTF tY�1n,. 4«a � Rav-uv.,;t.,hta Lost e may 3i "� i'm�t c�1'c1"� D•.`iia.rvis
eoffi Early Possession me"' teae else pex-, rfaphs 3.2 .,,,.i
1.5 Base Rent: $2,546.00 per month ("Base Rent"), payable on the first day of each month commencing on November
1, 2016. (See also Paragraph 4 and Exhibit I) There are provisions in this Lease for the Base Rent to be adjusted.. See Exhibit "I".
1.7 Lessee's Share of ammon Area nperadmi -nn^psnsea Lessee's
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1.9 Base Rent and Other Monies Paid Upon Execution:
(a) Base Rent: $2,546.00.00
(c) Security Deposit $;O0 ("Security Deposit"). (See also Paragraph 5)
(d) -Mere LYeI::..n -.i Gaiiti(Jii-Ii.:CS--$ 38Ft-J'.�.-pGFIDd
{€ ---tither: w r -
(f) Total Due Upon Execution of this Lease: $2.546.00
1.10 Agreed Use: Polico substation and for no other use without Lessor's prior written consent, which may be granted
or withheld at Lessor's sole discretion and subject to the use restrictions attached Exhibit "H", (See also Paragraph 6)
1.11 Agreed Trade Name: Santa Ana Police Substation. (See also Paragraph 6)
1,12 Insuring Party. lessor is the "Insuring Party". (See also Paragraph 8)
1.13 Real Estate Brokers: (See also Paragraph 15 and 25)
(a) Representation: The following real estate broker (the "Broker") and brokerage relationships exist in this
transaction (check applicable boxes):
X ;Williams Real Estate Management, Inc. represents Lessor.
(b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Broker for
the brokerage services renderedby the Broker the fee agreed to in the a'«.., he „separate written agreement er if ne stiell am'e^ ent-IR
nxr hod_8,.._ _4.
1.15 Attachments. Attached hereto are the following, all of which constitute a part of this Lease:
N/A an addendum
X a site plan marked Exhibit A, depicting the Premises and Shopping Center;
X a current set of the Sign Criteria for the Shopping Center marled Exhibit `B'
NA a work letter marked Exhibit "C";
NA a Guaranty of Lease marked Exhibit "D"
X a Lessee Memorandum of Lease Term Commencement marked Exhibit "E"
X an Estoppel Certificate marked Exhibit "P"
X a current set of Rules and Regulations for the Shopping Center marked Exhibit "G";
X other (specify): a list of Exclusive Uses, marked Exhibit "H",
2. Premises.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the
rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the
Premises may have been used in the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to
square footage and is not subject to adjustment should the actual size be determined to be different.
2.2 Condition. Lessor shall deliver the Premises to Lessee in their "as -is, where -is, with all faults and defects
condition. ��
obtainedDate"), and, so long as the F@"ifed sentraets dpssfib@d ifl 12afagFaph 7.1(b) below al:e by Lease@ and ; effeetwithill
f
IlAitliel.- I-e9sef, Lessor's agents, He4. pyel-p'l-q kave mad -F, any oral eF �AT-itten FePfesefit4ions or warranties with fespeet to said ma#efs
V 2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in Paragraph 2 shall be of no force or effect if
immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for
any necessary corrective work.
2.6 Vehicle Parking. Lessee shall not use and shall not permit its employees to use any parking spaces in the Shopping
Center except for parking by vehicles that are no larger than full-size passenger automobiles or pick-up trucks, herein called
"Permitted Size Vehicles." Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee
parking spaces on the Shopping Center site plan. Lessor may regulate the loading and unloading of vehicles by adopting Rules and
Regulations as provided in Paragraph 2.9. No vehicles other than Permitted Size Vehicles may be parked in the Common Area without
the prior written permission of Lessor, In addition: (a) Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, contractors or invitees to be loaded, unloaded, or parked in areas
other than those designated by Lessor for such activities; (b) Lessee shall not service or store any vehicles in the Common Areas; and
(c) if Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost
to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.7 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises
and within the exterior boundary line of the Shopping Center and interior utility raceways and installations within the Premises that
are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other Lessees of
the Shopping Center and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas,
loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas.
2.8 Common Areas - Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers,
shippers, contractors, customers and invitees, during the tern of this Lease, the non-exclusive right to use, in common with others
entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by
Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Shopping Center.
Under no circumstances shall the right herein granted to use the Conmion Areas be deemed to include the right to store any property,
temporarily or permanently, in the Common Areas, nor to display merchandise or conduct sales in the Connnon Areas. Any such
storage, display or sales shall be permitted only by the prior written consent of Lessor or Lessor's designated agent, as exercised in
Lessor's sole discretion, which consent may be revoked at any time. In the event that any unauthorized storage or displays shall occur
then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property
and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.9 Common Areas - Rules and Regulations. Lessor or such other persons) as Lessor may appoint shall have the
exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and
enforce reasonable rules and regulations ("Rules and Regulations") for the management, safety, care, and cleanliness of the grounds,
the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or Lessees
of the Building and the Shopping Center and their invitees. Lessee agrees to abide by and conform to all such Rules and Regulations,
and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform.
Lessor shall not be responsible to Lessee for the non-compliance with said Rules and Regulations by other Lessees of the Shopping
Center.
2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time:
I WINE'
f
IlAitliel.- I-e9sef, Lessor's agents, He4. pyel-p'l-q kave mad -F, any oral eF �AT-itten FePfesefit4ions or warranties with fespeet to said ma#efs
V 2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in Paragraph 2 shall be of no force or effect if
immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for
any necessary corrective work.
2.6 Vehicle Parking. Lessee shall not use and shall not permit its employees to use any parking spaces in the Shopping
Center except for parking by vehicles that are no larger than full-size passenger automobiles or pick-up trucks, herein called
"Permitted Size Vehicles." Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee
parking spaces on the Shopping Center site plan. Lessor may regulate the loading and unloading of vehicles by adopting Rules and
Regulations as provided in Paragraph 2.9. No vehicles other than Permitted Size Vehicles may be parked in the Common Area without
the prior written permission of Lessor, In addition: (a) Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, contractors or invitees to be loaded, unloaded, or parked in areas
other than those designated by Lessor for such activities; (b) Lessee shall not service or store any vehicles in the Common Areas; and
(c) if Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost
to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.7 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises
and within the exterior boundary line of the Shopping Center and interior utility raceways and installations within the Premises that
are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other Lessees of
the Shopping Center and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas,
loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas.
2.8 Common Areas - Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers,
shippers, contractors, customers and invitees, during the tern of this Lease, the non-exclusive right to use, in common with others
entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by
Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Shopping Center.
Under no circumstances shall the right herein granted to use the Conmion Areas be deemed to include the right to store any property,
temporarily or permanently, in the Common Areas, nor to display merchandise or conduct sales in the Connnon Areas. Any such
storage, display or sales shall be permitted only by the prior written consent of Lessor or Lessor's designated agent, as exercised in
Lessor's sole discretion, which consent may be revoked at any time. In the event that any unauthorized storage or displays shall occur
then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property
and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.9 Common Areas - Rules and Regulations. Lessor or such other persons) as Lessor may appoint shall have the
exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and
enforce reasonable rules and regulations ("Rules and Regulations") for the management, safety, care, and cleanliness of the grounds,
the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or Lessees
of the Building and the Shopping Center and their invitees. Lessee agrees to abide by and conform to all such Rules and Regulations,
and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform.
Lessor shall not be responsible to Lessee for the non-compliance with said Rules and Regulations by other Lessees of the Shopping
Center.
2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time:
(a) To make changes or additions 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, elevations, landscaped areas, signage, walkways and utility raceways;
(b) To use and close temporarily any of the Common Areas for the purpose of maintaining, repairing and
altering the Shopping Center, so long as reasonable access to the Premises remains available, and to close temporarily any of the
Common Areas to whatever extent is required in the opinion of Lessor's counsel to prevent a dedication of or the accrual of any rights
of any persons or of the public to any of the Common Areas;
(c) To designate other land outside the boundaries of the Shopping Center to be a part of the Common Areas or
to be entitled to use the Common Areas on a reciprocal basis;
(d) To add additional buildings and improvements to the Common Areas; and
(e) 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 Lessor may, in the exercise of sound business judgment, deem to be appropriate.
2.11 Common Areas - Promotional Events; Sidewalk Sales. Lessor reserves the right, from time to time, in Lessor's
sole discretion, to utilize portions of the Common Areas for promotional events, which may include, but shall not be limited to,
entertainment. Lessor further reserves the right, in Lessor's sole discretion, to permit any one or more Lessees of the Shopping Center
to conduct the display and/or sale of merchandise from the sidewalks immediately adjacent to such Lessees' respective premises.
2.12 Common Areas - Remodeling. At any time during the Tenn, Lessor may remodel or expand, in any manner, the
existing Shopping Center, which work may include, without limitation, the addition of shops and/or new buildings to the Shopping
Center (collectively, "Remodeled Center"). If Lessor deems it necessary for construction personnel to enter the Premises in order to
construct the Remodeled Center, Lessor shall give Lessee no less than 30 days prior notice and Lessee shall allow such entry. Lessor
shall use reasonable efforts to complete any work affecting the Premises in an efficient manner so as not to interfere unreasonably
with Lessee's business. Lessee shall not be entitled to any damages for any inconvenience or any disruption to Lessee's business
caused by such work; provided, however, the Base Rent paid by Lessee for the period of the inconvenience shall be abated in
proportion to the degree that Lessee's use of the Premises is impaired as reasonably determined by Lessor.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.
Patties intend that Lessee shall i�A_,.,@ aePPqq te tlip premises as of the Eafly Pessession Date for puipeses 4pfepaFing and flxtur4ziag
flip, A-emigeg f4a; the Genduct of T PqqRR'q bulginesq. 4 Lessee totally er paFfially aeeepies the Premises prief to the Gafnffieneement
purposes fPF@PaF4.44g aad 4*wF4 g t -h@ 12 eMiSeS fop bUSin@SS), tl4@ obligation to pay Base Rent aad 12afeentage Rent shall �P, abated
fE)F the period of sueh early pesqeqsign. -All athei- terms of this L@as@ (ineltidijig but not limited to Lesgee's abligatiens te eaffy
i 11,91AFalwe and to maintain the Prernises) shall be in affeet doting such pefied, @�Eeept that Lessee's obligation te VsFy Lessee's Shar&4
Cemman _4ea Opefating E3Tarises, Real PFepetty Ta3ies aiad iRstifance premiums shall anly be iii effect prior to the
Data if r o e has opened for business n the Premises p «. fie Commencement n.,te n,9 ..dcl: ;=ar]j�°ossersioH ohal'r.,o fi�T
the Expiration
3.3 Delay in Possession. J=esseF agFea8 to use eornmersially fea, Rigable effarts to deliver pessessien ef the Promises te
Lessee
the Commencement Date. lf,� despite 4d egefts, hessof is unable to de4ivei, passession by sueh flat@, Tmessei- shall riot -4e
�njliability therefor, shall .. .d, A.'1 £feet the validity 06:, 0 the Expiration , Da TL4 e it t
rxu Tnv'r ocxoncu..�„ � oaovo3-61'iary^� 2.cp}ra_ },vcot� oow€6h&xi-.ao.-
jleWe'�eF, be obligated to pay Rent or perform its etheF ebligations until Lessor deli—is pes—sien of the Premises RHd Effly period ef
rnri abatement that Lessee would et4eizwise liave ei�oyed qball run f+om �Iw date Of delivery of pessessien said earniflue f.. ape
:..d
T o o Tf pe-
ld othw-wise 4ave eiijeyed under the terms hepeef, but minus any days 4 delay eaesed by the nets SF
„ f ss -es d..., is t d 1', e«ed within 60 days after A,ma« „A] e.,.
the tei*ms ef any Work Letter ONCEAV1@4 bj'12RF66S, Lessee may, at its eptien, by nedee in wFiting within 19 days aftef the end of-iieli
60 daFy pefied, eatieel this Lease, in Ahish AVRat flIP PHAiRS shall be discharged fre4fl all ebligations hereundej, Tfsupli wvitt ,ea antiee is
..4 F@eeivad by Lessor .,:thin said 10 d.,, ., Fred T::
�ec's right to cancel..6
his Tam µl1 to .,,
. ' nate Possession ,sees.. ef t1ga Promise's ::,.
i4ot doliv@ped within 180 days aAe- the ComanpuppmPnt Date, iliis Lease shall autematieally ten�iii4e unless other agreemaRts are
reached between T e,...,,i..i ,d Lessee, in iii: t'.,..
3.4 Lessee Compliance. Lessor shall not be required to tender possession of the Premises to Lessee until Lessee
complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be
required to perforin all of its obligations under this Lease from and after the Start Date, including the payment of Rent,
notwithstanding Lessor's election to withhold possession pending receipt of such evidence of insurance.
4. Rent.
4.1 Rent Defined. All monetary obligations of Lessee to Lessor under the terns of this Lease (except for the Security
Deposit) are deemed to be rent ("Rent").
4.2 Common Area Operating Expenses. Lessee shall pay to I—essor during the teFm hereof, in addition to the Base
Rent and, if applieable, Percentage Rent, T=essee's Share (as speeified in PaFagpap�i 1.7) of all Common A+ea Operating Ripenses, as
(a) "Common Area OperHting Expenses" afe defined, fer purpeses Rf this Lc�sp, as all Posts ineuFFed by
tt e f•,.ib'
86 Feasellabl, -a
4.3 Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States,
without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. In the event that
any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the
amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be
prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or
to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the
amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check
so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason,
Lessee agrees to pay to Lessor the sum of $25,00 in addition to any Late Charge and Lessor, at its option, may require all future Rent
be paid by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to
Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs.
result
6. Use.
6.1 (a) Agreed Use; Agreed Trade Name. Lessee shall use and occupy the Premises only for the Agreed Use, and
for no other use or purpose without Lessor's prior written consent, and Lessee shall operate at the Premises only under the Agreed
Trade Name and under no other trade name without Lessor's prior written consent. Lessee shall not use or permit the use of the
Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to
neighboring premises or properties. Other than guide, signal and seeing -eye dogs, Lessee shall not keep or allow in the Premises any
pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a
modification of the Agreed Use, or to the Agreed Trade Name. If Lessor elects to withhold consent, Lessor shall within 14 days after
such request give written notification of same, which notice shall include an explanation of Lessor's objections to the change in the
Agreed Use and/or Agreed Trade Name.
(b) Continuous Operation. Lessee shall continuously (i) operate and conduct the Agreed Use under the
Agreed Trade Name within the entire Premises in a reputable manner and in conformity with industry standards of practice prevailing
in the field of business afflatig merchants engaged in the same oF sifflilia: business in the eky in wlii& the Premises afe jeeated, (ii)
st..fCthe n.lisps Su,; N, �..fPeiont Sal t ....A, t e n«e, :. .... ;N, adequate .« rcha,d:se a,&ieize'is ..,...,A 1. ...;,,..�� .,«�..�.:.. o..
Se as tE3 Q-0,9,9 At a, minimum, Lessee shall keep the Pfemises earitinuously epen �ei, biisiiiess mort Ry thfeligh Friday
(c) Violations of Exclusive Use Rights. Lessee acknowledges that Lessor may grant, or may have previously
granted, exclusive use rights to other Lessees of the Shopping Center and agrees that a material consideration to Lessor in entering
into this Lease is Lessee's covenant to limit its use of the Premises to the Agreed Use under the Agreed Trade Name as set forth above.
Lessee's violation of exclusive use rights granted to other Lessees of the Shopping Center will result in Lessor suffering irreparable
harm and, therefore, in addition to all other nights and remedies available to Lessor, Lessor may seek to enjoin Lessee's breach of such
covenant and Lessee shall be liable for any damages incurred or sustained by Lessor to such other Lessees whose exclusive use rights
are breached by Lessee. In no event shall Lessor be liable to Lessee for any failure of any other Lessees of the Shopping Center to
operate their businesses, or for any loss or damage that may be occasioned by or through the acts or omissions of other Lessees or
third parties.
(d) Other Tenancies. Lessor reserves the absolute right to establish procedures to control other tenancies in
the Shopping Center. Regardless of whether any specific Lessees are shown on any site plan attached hereto, Lessee does not rely on
that fact, nor does Lessor represent that any specific Lessee or number or type of Lessees shall or shall not during the Term occupy
any portion of the Shopping Center, nor does Lessee rely on any other Lessee operating its business in the Shopping Center at any
particular time or times. Further, no conduct by any Lessee, subLessee or other occupant of, or any customer of, or any supplier to or
use of any portion of the Shopping Center shall constitute an eviction, constructive or otherwise, of Lessee from the Premises, and
Lessee hereby waives any and all claims that it might otherwise have against Lessor by reason thereof.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The tenn "Hazardous Substance" as used in this Lease shall mean any
product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination
with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor
to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include,
but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-products or fractions thereof. Lessee
shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the
express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable Requirements.
"Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice,
registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a
Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary
materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper,
glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a
Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or
expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such
additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against
damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease
expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit.
(b) Duty to Inform Lessor. if Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come
to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give
written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has
concerning the presence of such Hazardous Substance.
(c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on,
under, or about the Premises (including through fine plumbing or sanitary sewer system) and shall promptly, at Lessee's expense,
comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not
formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the
Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any
Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party.
(d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground
lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties,
and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee,
or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of
any Hazardous Substance under the Premises from areas outside of the Shopping Center not caused or contributed to by Lessee).
Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the
environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall
survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and
Lessee shall release Lessee from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed
by Lessor in writing at the time of such agreement.
(e) Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall
indemnify, defend, reimburse and bold Lessee, its employees and lenders, harmless from and against any and all environmental
damages, including the cost of remediation, which are suffered as a direct result of Hazardous Substances on the Premises prior to
Lessee taking possession or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees.
Lessor's obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of
investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease.
(f) Investigations and Remediation. Lessor shall retain the responsibility and pay for any investigations or
remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on
the Premises prior to Lessee taking possession, unless such remediation measure is required as a result of Lessee's use of the Premises
(including "Alterations", as defined in paragraph 7.3(a) below), in which event Lessee shall be responsible for such payment. Lessee
shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor's agents to have reasonable
access to the Premises at reasonable times in order to Bary out Lessor's investigative and remedial responsibilities.
(g) Lessor Termination Option. If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of
this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof
required by the Applicable Requirements and this Lease shall continue in full force and effect, but subject to Lessor's rights under
Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's option, either (i) investigate slid remediate such Hazardous Substance
Condition, if required, as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is
greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous
Substance Condition, of Lessor's desire to terminate this Lease as of the date 60 days following the date of such notice. In the event
Lessor elects to give a termination notice, Lessee may, within 10 days thereafter, give written notice to Lessor of Lessee's commitment
to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times
the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance
thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall
proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such
notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified
in Lessor's notice of termination.
6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at
Lessee's sole expense, fully, diligently and in a timely manner, comply with all Applicable Requirements, the requirements of any
applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate
in any manner to such Requirements, without regard to whether said Requirements are now in effect or become effective after the
Start Date. Lessee shall, within 10 days after receipt of Lessor's written request, provide Lessor with copies of all permits and other
documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall
immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable
Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any
suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (ii) any mustiness or other odors that
might indicate the presence of mold in the Premises.
6.4 Inspection; Compliance. Lessor and Lessor's "Lender" (as defined in Paragraph 29) and consultants shall have the
right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable notice, for the
purpose of inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease. The cost of any such
inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see
Paragraph 9.1) is found to exist or be imminent. In such case, Lessee shall upon request reimburse Lessor for the cost of such
inspection, so long as such inspection is reasonably related to the violation or contamination. hi addition, Lessee shall provide copies
of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of written request therefor.
7. Maintenance; Repairs, Utility Installations; Trade Fixtures and Alterations.
7.1 Lessee's Obligations.
(a) In General. Subject to the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3 (Lessee's
Compliance with Applicable Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), and 14 (Condemnation),
Lessee shall, at Lessee's sole expense, keep the Premises, Utility Installations (intended for Lessee's exclusive use, no matter where
located), and Alterations in good order, condition and repair (whether or not the portion of the Premises requiring repairs, or the
means of repairing the same, are reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as a
result of Lessee's use, any prior use, the elements or the age of such portion of the Premises), including, but not limited to, all
equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, fixtures, interior
walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and skylights but excluding any items which
are the responsibility of Lessor pursuant to Paragraph 7.2. Lessee, in keeping the Premises in good order, condition and repair, shall
exercise and perform good maintenance practices, specifically including the procurement and maintenance of the service contracts
required by Paragraph 7.1(b) below. Lessee's obligations shall include restorations, replacements or renewals when necessary to keep
the Premises and all improvements thereon or a part thereof in good order, condition and state of repair.
(b) Service Contracts. ,Lessee shall, at Lessee's sole expense, procure and maintain contracts, with copies to
Lessor, in customary form and substance for, and with contractors specializing and experienced in the maintenance of the following
equipment and improvements, if any, if and when installed on the Premises: (i) HVAC equipment, (ii) boiler and pressure vessels, and
(iii) clarifiers and grease interceptors. Lessor reserves the right, upon notice to Lessee, to procure and maintain any or all of such
service contracts, and Lessee shall reimburse Lessor, upon demand, for the cost thereof.
(e) Failure to Perform. If Lessee fails to perform Lessee's obligations under this Paragraph 7.1, Lessor may
enter upon the Premises after 10 days' prior written notice to Lessee (except in the case of an emergency, in which case no notice shall
be required), perform such obligations on Lessee's behalf, and put the Premises in good order, condition and repair, and Lessee shall
promptly pay to Lessor a sum equal to the cost thereof.
(d) Replacement. Subject to Lessee's indemnification of Lessor as set forth in Paragraph 8.7 below, and
without relieving Lessee of liability resulting from Lessee's failure to exercise and perform good maintenance practices, if an item
described in Paragraph 7.1(b) cannot be repaired other than at a cost which is in excess of 50% of the cost of replacing such item, then
such item may be replaced by Lessor, and the cost thereof shall be prorated between the Parties and Lessee shall only be obligated to
pay, each month during the remainder of the term of this Lease, on the date on which Base Rent is due, an amount equal to the product
of multiplying the cost of such replacement by a fraction, the numerator of which is one, and the denominator of which is 144 (i.e.
1/144th of the cost per month). Lessee shall pay Interest on the unamortized balance but may prepay its obligation at any time
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Common
Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or Destruction) and 14 (Condemnation), afid subjeet to
;Aimbtrrsement pursuant ant to Pa+agr phi 4.2, Lessor shall keep in good order, condition and repair the foundations, exterior walls,
structural condition of interior bearing walls, exterior roof, fire sprinkler system, Common Area fire alarm and/or smoke
detection systems, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems
serving the Common Areas and all parts thereof, as well as ppoviding th ^r^^" thers is ^ "^-^Eg• AFsa n
Y b
Exile se paysitmit ta Pafag aph 4.2- Lessor shall not be obligated to paint the interior surfaces of exterior walls nor shall Lessor be
obligated to maintain, repair or replace windows, doors or plate glass of the Premises all of which shall be performed by Lessee at
Lessee's sole expense. Lessee expressly waives the benefit of any statute now or hereafter in effect to the extent it is inconsistent with
the terms of this Lease.
7.3 Utility Hnstallations; Trade Fixtures; Alterations.
(a) Definitions. The term "Utility Installations" refers to all floor and window coverings, air and/or vacuum
lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC
equipment, plumbing, and fencing in or on the Premises. The term "Trade Fixtures" shall mean Lessee's machinery and equipment
that can be removed without doing material damage to the Premises. The term "Alterations" shall mean any modification of the
improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned Alterations and/or
Utility Installations" are defined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant
to Paragraph 7.4(a).
(b) Consent. Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor's
prior written consent. Lessee may, however, make non-structural Alterations and Utility Installations to the interior of the Premises
(excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve
puncturing, relocating or removing the roof or any existing walls, will not affect the electrical, plumbing, HVAC, and/or life safety
systems, and the cumulative cost thereof during this Lease as extended does not exceed a sum equal to 3 month's Base Rent in the
aggregate or a sum equal to one month's Base Rent in any one year. Notwithstanding the foregoing, Lessee shall not make or permit
any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to
granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility
Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form
with detailed plans. Consent shall be deemed conditioned upon Lessee's: (i) acquiring all applicable governmental permits, (ii)
furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii)
compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner. Any
Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall
promptly upon completion furnish Lessor with as -built plans and specifications. For work which costs an amount in excess of one
month's Base Rent, Lessor may condition its consent upon Lessee providing a lien and completion bond in an amount equal to 150%
of the estimated cost of such Alteration or Utility Installation and/or upon Lessee's posting an additional Security Deposit with Lessor.
(c) Liens; Bonds. Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have
been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic's or materialman's
lien against the Premises or any interest therein. Lessee shall give Lessor not less than 10 days' notice prior to the commencement of
any work in, on or about the Premises, and Lessor shall have the right to post notices of non -responsibility. If Lessee shall contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises
against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If
Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or
demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor's
attorneys' fees and costs.
7.4 Ownership; Removal; Surrender; and Restoration.
(a) Ownership. Subject to Lessor's right to require removal or elect ownership as hereinafter provided, all Alterations
and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any
time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless
otherwise instructed per ,Paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or
termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises.
(b) Removal. By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to
the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by
the expiration or termination of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned
Alterations or Utility Installations made without the required consent.
(c) Surrender; Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date,
with all of the improvements, parts and surfaces thereof broom clean and free of debris, and in good operating order, condition and
state of repair, ordinary wear and tear excepted. "Ordinary wear and tear" shall not include any damage or deterioration that would
have been prevented by good maintenance practice. Notwithstanding the foregoing, if this Lease is for 12 months or less, then Lessee
shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and
tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee Owned
Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for
Lessee. Lessee shall also completely remove from the Premises any and all Hazardous Substances brought onto the Premises by or for
Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the
Premises), even if such removal would require Lessee to perform or pay for work that exceeds statutory requirements. Trade Fixtures
shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the
Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained
by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the
express written consent of Lessor shall constitute a holdover under the provisions of 26 below.
8. Insurance; Indemnity.
8.1 Payment of Premiums. The cost of the premiums for the insurance policies required to be carried by Lessor,
pursuant to Paragraphs 8.2(b), 8.3(a) and 8.3(b), shall be a Common Area Operating Expense. P, rm,ms for pali,. periods
g pFief !a, ap w4endiiig beyead, the tef+R ef this T=ease shall be prap4gd te pai;wide with the of
�'- �-i-� Or evidence of self insured retention in the same amount.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy
of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property
damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto.
Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence
with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at
least as broad as the Insurance Service Organization's "Additional Insured -Managers or Lessors of Premises" Endorsement. The policy
shall not contain any intra -insured exclusions as between insured persons or organizations, but shall include coverage for liability
assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity obligations under this Lease. The limits
of said insurance shall not limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an
endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar
insurance carried by Lessor, whose insurance shall be considered excess insurance only.
(b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in
addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured
therein.
8.3 Property Insurance - Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of
insurance in the name of Lessor, with loss payable to Lessor, any ground -lessor, and to any Lender insuring loss or damage to the
Premises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist
from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available
insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's personal property shall be
insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure
against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including
coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction
or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed
valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the
annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index
for All Urban Consumers for the city nearest to where the Premises are located.
(b) Rental Value. Lessor shall also obtain and keep in force a policy or policies in the name of Lessor
with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an
additional 180 days ("Rental Value Insurance"). Said insurance shall contain an agreed valuation provision in lieu of any
10
coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee,
for the next 12 month period.
(c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance
of the Building and for the Common Areas or other buildings in the Shopping Center if said increase is caused by Lessee's acts,
omissions, use or 4a n.e..•ges
8.4 Lessee's Property; Business Interruption Insurance; Worker's Compensation Insurance.
(a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's
personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement
cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee
for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations.
(d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or
forms of coverage of insurance specified herein are adequate to cover Lessee's property, business operations or obligations under this
Lease.
8.5 Insurance Policies. Insurance required herein shall be by companies maintaining during the policy term a "General
Policyholders Rating" of at least A- VTI, as set forth in the most current issue of "Best's hnsurance Guide", or such other rating as may
be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee
shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required
endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to
modification except after 30 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such policies,
furnish Lessor with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may order such insurance and
charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term
of at least one year, or the length of the remaining tern of this Lease, whichever is less. if either Party shall fail to procure and
maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.
8.6 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and
relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of
or incident to the perils required to be insured against herein. The effect of such releases and waives is not limited by the amount of
insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage
insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long
as the insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and
hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, property manager, partners and Lender, from and
against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or
liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or
proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's
expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have
first paid any such claim in order to be defended or indemnified.
8.8 Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease
by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or
goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or
about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air
quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, IIVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a part, or from other sources or places, (ii) any damages
arising from any act or neglect of any other Lessee of Lessor or from the failure of Lessor or its agents to enforce the provisions of any
other lease in the Shopping Center, or (iii) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is
intended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee is
required to maintain pursuant to the provisions of Paragraph 8.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the improvements on the
Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 6 months or less from the
date of the damage or destruction, and the cost thereof does not exceed a sum equal to 6 month's Base Rent. Lessor shall notify Lessee
in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.
(b) "Premises Total Destruction" shall mean damage or destruction to the improvements on the
Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 6
months or less from the date of the damage or destruction and/or the cost thereof exceeds a sum equal to 6 month's Base Rent. Lessor
shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or
Total.
(c) "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than
Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the
insurance described in Paragraph 83(a), irrespective of any deductible amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor
at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading
required by the operation of Applicable Requirements, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or discovery of a condition
involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises or Common Areas which
requires restoration.
9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that is air Insured Loss occurs, then Lessor shall, at
Lessor's expense, repair such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon
as reasonably possible and this Lease shall continue in full force and effect. Notwithstanding the foregoing, if the required insurance
was not in force or the insurance proceeds are not sufficient to affect such repair, the Insuring Party shall promptly contribute the
shortage in proceeds as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by
reason of the unique nature of the improvements, full Replacement Cost insurance coverage was not commercially reasonableand
available, Lessor shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the
Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, within 10 days following receipt
of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day
period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in
full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by written notice to Lessee within 10
days thereafter to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any shortage in proceeds, in
which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be
entitled to reimbursement of any funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due
to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net
proceeds of any such insurance shall be made available for the repairs if made by either Party.
9.3 Partial Damage - Uninsured Loss. If a Premises Partial Damage that is not an Insured Loss occurs, unless caused
by a grossly negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), Lessor may either:
(i) repair such damage as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the
occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to
terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor
of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with
said finds or satisfactory assurance thereof within 30 days atter making such commitment. In such event this Lease shall continue in
full force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are made
available to Lessor. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the
termination notice.
9.4 Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease
shall terminate 60 days following such Destruction. If the damage or destruction was caused by the gross negligence or willful
misconduct of Lessee, Lessor shall have the right to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
9.5 Damage Near End of Term. If at any time during the last 12 months of this Lease there is damage for which the
cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective as of the date
of occurrence of such damage by giving a written termination notice to Lessee within 90 days after the date of occurrence of such
damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease and the damage is an
Insured Loss, then Lessee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in
insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days
after Lessee's receipt of Lessor's written notice purporting to terminate this Lease, or (it) the day prior to the date upon which such
option expires. If Lessee duly exercises such option during such period and provides Lessor with funds (or adequate assurance thereof)
to cover any shortage in insurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as
L2
reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds
or assurance during such period, or if the damage is not an Insured Loss, then this Lease shall terminate on the date specified in the
termination notice and Lessee's option shall be extinguished.
9.6 Damage to Shopping Center. hi the event of any damage or destruction to other portions of the Building or to any
other buildings in the Shopping Center, whether insured or uninsured (and whether or not there is also damage or destruction to
the Premises), which cannot reasonably be repaired in 12 months or less from the date of the damage or destruction, Lessor may
either (i) repair such damage or destruction as soon as reasonably possible without expense to Lessee, in which event this Lease shall
continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 90 days after receipt by Lessor
of knowledge of the occurrence of such damage or destruction. Such termination shall be effective 60 days following the date of such
notice.
9.7 Abatement of Rent; Lessee's Remedies.
(a) Abatement. In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous
Substance Condition for which Lessee is not responsible under this Lease, the Base Rent payable by Lessee for the period required for
the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee's use of the Premises
is impaired, but not to exceed the proceeds actually received by Lessor from the Rental Value hrsurance. All other obligations of
Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation,
repair or restoration except as provided herein.
(b) Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or
Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee
to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to
be, used by Lessor.
10. Real Property Taxes.
10.1 Definition. As used herein, the term "Real Property Taxes" shall include any form of assessment; real estate,
general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement
bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Shopping Center, Lessor's right
to other income therefrom, and/or Lessor's business of leasing, by any authority having the direct or indirect power to tax and where
the funds are generated with reference to the Shopping Center address and where the proceeds so generated are to be applied by the
city, county or other local taxing authority of a jurisdiction within which the Shopping Center is located. The term "Real Property
Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring
during the term of this Lease, including but not limited to, a change in the ownership of the Shopping Center, (ii) a change in the
improvements thereon, and/or (iii) levied or assessed on machinery or equipment provided by Lessr to Lessee pursuant to this Lease.
In calculating Real Property Taxes for any calendar year, the 'Real Property Taxes for any real estate tax year shall be included in the
calculation of Real Property Taxes for such calendar year based upon the number of days which such calendar year and tax year have
in common.
10.2 Payment of Taxes. Except as otherwise provided in Paragraph 10.3, Lessor shall pay the Real Property Taxes
applicable to the Shopping Center, and said paymeirs shall b@ iapluded in the ,,..r„ lat,A, 4 G,...,,,,,,, Area Opo ..t:. b r
,,oF tam,�w-.,,.e ..v'th4he-proyis',..,,. of n.........aph 4-.2-.
10.3 Additional Improvements. Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the
time Co.^.:::cn kre : Op@aat _g E*V e ses are payable ra . P,._,.,. h 4.2, the entirely of any increase in Real Property Taxes if
assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee's
request, or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by
the Parties.
10.4 Joint Assmsment. If the Building is ne� separately assessed, Rea4 Pizoperty Taxes alh3eated te the Buildini� shall be
Proportion to be determined bylneSsei: Item tile FeSpCet1V@ assigned in th "s work shentsn ,u'.,otli,,,,vin
as May be reasonably available. InesseA Feaseriable dete
10.5 Personal Property Taxes. Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee
Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in
the Premises. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee's said
property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee's property within 10
days after receipt of a written statement setting forth the taxes applicable to Lessee's property.
11. Utilities and Services. Lessee shall pay for all water, gas, beat, light, power, telephone, leash -disposal and other utilities and
services supplied to the Premises, together with any taxes thereon. To the @ .eAt an such utilities afl&F- ..,.n .,.o., a - �
metered, Lessee shall pay Lessee's Sliffe thaFeef in aeseei-dissee with Paragraph Q. Netwithstanding the PFOViSiERS of PRFag;Faph-4—.L,
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if at any time in Lessor's sole judgment, Lessor determines that Lessee is using a disproportionate amount of water, electricity or other
commonly metered utilities, or that Lessee is generating such a large volume of trash as to require an increase in the size of the trash
receptacle and/or an increase in the number of times per month that it is emptied, then Lessor may increase Lessee's Base Rent by an
amount equal to such increased costs. There shall be no abatement of Rent and Lessor shall not be liable in any respect whatsoever for
the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown,
accident, repair or other cause beyond Lessor's reasonable control or in cooperation with governmental request or directions.
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively,
"assign or assignment"), license or sublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior
written consent.
(b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the
control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting
control of Lessee shall constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or series of transactions by way of merger, sale,
acquisition, financing, transfer, leveraged buy-out or otherwise, which results or will result in a reduction of the Net Worth of Lessee
by an amount greater than 25% of such Net Worth as it was represented at the time of the execution of this Lease or at the time of the
most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting
such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its
consent. "Net Worth of Lessee" shall mean the net worth of Lessee (including any guarantors) established under generally accepted
accounting principles.
(d) An assignment or subletting without consent shall, at Lessor's option, be a Default curable after notice per
Paragraph 13.1(c), or a non -curable Breach without the necessity of any notice and grace period. If Lessor elects to treat such
unapproved assignment or subletting as a non -curable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon 30 days written
notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental
adjustment, all fixed and non -fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of
the scheduled adjusted rent.
(e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages
and/or injunctive relief.
(f) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at
the time consent is requested.
(g) Notwithstanding the foregoing, allowing a de minirmis portion of the Premises, i.e. 20 square feet or less, to
be used by a third party vendor in connection with the installation of a vending machine or paypbone shall not constitute a subletting.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, no assignment or subletting shall: (i) be effective without the express
written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations
hereunder, or (iii) alter the liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed
by Lessee. -
(b) Lessor may accept Rent or performance of Lessee's obligations from any person other than Lessee pending
approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of
Rent or performance shall constitute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(e) Lessor's consent to any assignment or subletting shall not constitute a consent to any subsequent
assignment or subletting.
(d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any
Guarantors or anyone else responsible for the performance of Lessee's obligations under this Lease, including any assignee or
sublessee, without first exhausting Lessor's remedies against any other person or entity responsible therefore to Lessor, or any
security held by Lessor.
(e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information
relevant to Lessor's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or
sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of
$1,000.00 as consideration for Lessor's considering and processing said request. Lessee agrees to provide Lessor with such other or
additional information and/or documentation as may be reasonably requested. (See also Paragraph 35)
(f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into
such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform
and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the
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term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or
sublease to which Lessor has specifically consented to in writing.
(g) Lessor's consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option
granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing.
12.3 Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to
any subletting by Lessee of all or any part of the Premises and shall be deemed to be included in all subleases Under this Lease
whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease,
and Lessor may collect such Rent and apply same toward Lessee's obligations under this Lease; provided, however, that
until a Breach shall occur in the performance of Lessee's obligations, Lessee may collect said Rent. In the event that the
amount collected by Lessor exceeds Lessee's then outstanding obligations any such excess shall be refunded to Lessee. Lessor
shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable
to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligations to such sublessee. Lessee
hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor stating that a Breach
exists in the performance of Lessee's obligations under this Lease, to pay to Lessor all Rent due and to become due under the
sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to
inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which
event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the
expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such
sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor.
(c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor.
(d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written
consent.
13. Default; Breach; Remedies.
13.1 Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or perform any of the terms,
covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the
following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:
(a) The vacating or abandonment of the Premises. Lessee shall be deemed to have vacated the Premises if
Lessee ceases to continuously operate its business in the Premises for a period of 5 consecutive days.
(b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee
hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any
obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 5 days
following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY
DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO
RECOVER POSSESSION OF THE PREMISES.
(c) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste,
act or acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for
a period of 5 days following written notice to Lessee.
(d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable
Requirements, (it) the service contracts, (iii) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate
or financial statements, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any
document requested under Paragraph 40, (viii) material data safety sheets (MSDS), or (ix) any other documentation or information
which Lessor may reasonably require of Lessee under the terns of this Lease, where any such failure continues for a period of 10
days following written notice to Lessee.
(e) A Default by Lessee as to the terns, covenants, conditions or provisions of this Lease, or of the rules
adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default
continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee's Default is such that more than
30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30
day period and thereafter diligently prosecutes such cure to completion.
(f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for
the benefit of creditors; (ii) becoming a "debtor" as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a
petition tiled against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to
Lessee within 30 days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event
15
that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect
the validity of the remaining provisions.
(g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially
false.
(h) If the performance of Lessee's obligations under this Lease is guaranteed: (i) the death of a Guarantor, (fi)
the termination or attemptedtermination of a Guarantor's liability with respect to this Lease other than in accordance with the express
terms of such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor
the guaranty, or (v) a Guarantor's breach of its guaranty obligation on an anticipatory basis, and Lessee's failure, within 30 days
following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then
existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time
of execution of this Lease.
13.2 Remedies, If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice
(or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee's behalf, including
but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals.
Lessee shall pay to Lessor an amount equal to the costs and expenses incurred by Lessor in such performance upon receipt of an
invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such Breach:
(a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall
terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee:
(i) the unpaid Rent which had been earned at the time of termination; (ii) 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
Lessee proves could have been reasonably avoided; (iii) 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 Lessee proves could be reasonably avoided;
and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform
its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited
to the cost of recovering possession of the Premises, expenses of re -letting, including necessary renovation and alteration of the
Premises, reasonable attorneys' fees, and that portion of any Leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the
immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the
District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by
Lessee's Breach of this Lease shall not waive Lessor's right to recover any damages to which Lessor is otherwise entitled. If
termination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in
such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part
thereof in a separate suit. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or
quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph
13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and
the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and
a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due, in which event
Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to re -let, and/or the appointment of a
receiver to protect the Lessor's interests, shall not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein
the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee's right to possession shall not
relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof
or by reason of Lessee's occupancy of the Premises.
13.3 Inducement Recapture. Any agreement for free or abated rent or other charges, or for the giving or paying by
Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee's entering into this Lease, all of which
concessions are hereinafter referred to as "Inducement Provisions", shall be deemed conditioned upon Lessee's full and faithful
performance of all of the terns, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement
Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus,
inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due
and payable by Lessee to Lessor, subject to the timely, subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or
the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this
paragraph unless specifically so stated in writing by Lessor at the time of such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if
16
any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to
Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever
is greater. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by
reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's Default or
Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In
the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then
notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's option, become due and payable quarterly in
advance.
13.5 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due
shall bear interest from the 31st day after it was due. The interest ("Interest") charged shall be computed at the rate of 10% per annum
but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in
Paragraph 13.4.
13.6 Breach by Lessor.
(a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a
reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall
in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in
writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however,
that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall
not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. Under no
circumstances shall Lessee have the right to terminate the Lease as a result of Lessor's breach or alleged breach of the Lease.
(b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach
within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then
Lessee may upon 30 days prior written notice to Lessor, elect to cure said breach at Lessee's expense, and should Lessor fail or refuse
to reimburse Lessee for the actual, itemized, third -party cost of such cure within 30 days following Lessor's receipt of Lessee's
itemized invoice for same, Lessee may offset from Base Rent the actual and reasonable cost to perform such cure, provided however,
that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit, reserving Lessee's
right to reimbursement from Lessor for any such expense in excess of such offset.
14. Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat
of the exercise of said power (collectively "Condemnation"), this Lease shall terminate as to the part taken as of the date the
condemning authority takes title or possession, whichever first occurs. If more than 10% of the floor area of the Premises is taken by
Condemnation, Lessee may, at Lessee's option, to be exercised in writing within 20 days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within 20 days after the condemning authority shall have taken possession)
terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that
the Base Rent shall be reduced in proportion to the reduction Rentable Area of the Premises caused by such Condemnation.
Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be
entitled to any compensation paid by the condemner for Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures,
without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility
Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and
Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason
of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation to the extent of the
Condemnation Award actually received by Lessor, if any.
15. Brokerage.
15.1 Representations and Indemnities of Broker Relationships. Lessee and Lessor each represent and warrant to the
other that it has had no dealings with any person, firm, broker or finder (other than the Brokers, if any) in connection with this Lease,
and that no one other than said named Brokers is entitled to any commission or finder's fee in connection herewith. Lessee and Lessor
do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges
which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the
indemnifying Patty, including any costs, expenses, attorneys' fees reasonably incurred with respect thereto.
16. Estoppel Certificates.
(a) Lessee (as "Responding Party") shall within 10 days after written notice from Lessor (the "Requesting Party")
execute, acknowledge and deliver to the Requesting Party an estoppel statement or certificate in writing in the form designated by
17
Lessor (or Lessor's Lender or purchaser), plus such additional information, confirmation and/or statements as may be reasonably
requested by the Requesting Party.
(b) If the Responding Parry shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the
Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except
as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) not
more than one month's rent has been paid in advance. Prospective purchasers and encumbrances may rely upon the Requesting Party's
Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In
addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and
potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain.
Accordingly, should Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent
shall be automatically increased, without any requirement for notice to Lessee, by all amount equal to 10% of the then existing Base
Rent or $100, whichever is greater for remainder of the Lease. The Parties agree that such increase in Base Rent represents fair and
reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to provide the Estoppel
Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to
provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder.
(c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall
within 10 days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial
statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee's financial statements for
the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used
only for the purposes herein set forth.
17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the time in question of
the fee title to the Premises, or, if this is a sublease, of the Lessee's interest in the prior lease. Hi the event of a transfer of Lessor's
title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor
shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the
Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only
upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no
way affect the validity of any other provision hereof.
19. Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in this Lease shall mean and refer to
calendar days.
20. Limitation on Liability. The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor, or
its partners, members, directors, officers or shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for
the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members,
directors, officers or shareholders, or any of their personal assets for such satisfaction.
21. Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by
the Parties under this Lease.
22. No Prior or Other Agreements. This Lease contains all agreements between the Parties with respect to any matter
mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may
be delivered in person (by hand or by cornier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express
Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in a mariner specified in this
Paragraph 23. The addresses noted adjacent to a Parry's signature on this Lease shall be that Party's address for delivery or mailing of
notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be
concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing.
23.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on
the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice
shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by
18
United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the
same to the Postal Service or courier. Notices transmitted by facsimile transmission or similar means shall be deemed delivered upon
telephone confirmation of receipt (confirmation report from fax machine is sufficient), provided a copy is also delivered via delivery
or mail. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be
deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of
any other tern, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary
the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Lease requiring such consent. The acceptance of Rent by Lessor shall not be a
waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages
due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements
and/or conditions shall be of no force or effect unless specifically agreed to in writing by Lessor at or before the time of deposit of
such payment. THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO
AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH
STATUTE IS INCONSISTENT WITH THIS LEASE.
25. No Right To Holdoier. Tmessee has na Fight te Fetaiii pessessien ofthe Premises or any part thereof bayeRd the e�ipivatiop m,
wi-millation ef tlliq �_Rasp. 411 tllp w0pilt that I es9ep, 11RIdg OA,ef, then the Base Rent and 1201Gentage Rent Rate ghall be iiqs;eaqsdto 14
a
termination.
gbal l be .. ......t« .v .... ........ T
A «t b e,.,..... .. 1 ekliRg e e.. b T eSSee
26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be
cumulative with all other remedies at law or in equity.
27. Construction of Agreement. In construing this Lease, all headings and titles are for the convenience of the Parties only and
shall not be considered a part of this Lease. Whenever required by the context; the singular shall include the plural and vice versa. This
Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties
had prepared it.
28. Binding Effect; Choice of Law. This Lease shall be binding upon the parties, their personal representatives, successors and
assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Panties hereto
concerning this Lease shall be initiated in the county in which the Premises are located.
29. Subordination; Attornment; Non -Disturbance.
29.1 Subordination. This Lease shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or hereafter placed upon the Premises, to any and all
advances made on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of
any such Security Devices (in this Lease together referred to as "Lender") shall have no liability or obligation to perform any of the
obligations of Lessor wider this Lease. Any Lender may elect to have this Lease superior to the lien of its Security Device by giving
written notice thereof to Lessee, whereupon this Lease shall be deemed prior to such Security Device, notwithstanding the relative
dates of the documentation or recordation thereof.
29.2 Attornment. In the event that Lessor transfers title to the Premises, or the Premises are acquired by another upon
the foreclosure or termination of a Security Devise to which this Lease is subordinated (i) Lessee shall, subject to the non -disturbance
provisions of Paragraph 29.3, attorn to such new owner, and upon request, enter into a new lease, containing all of the terms and
provisions of this Lease, with such new owner for the remainder of the tern hereof, or, at the election of the new owner, this Lease
will automatically become a new lease between Lessee and such new owner, and (ii) Lessor shall thereafter be relieved of any further
obligations hereunder and such new owner shall assume all of Lessor's obligations, except that such new owner shall not: (a) be liable
for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any
offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or
(d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.
29.3 Non -Disturbance. With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee
shall execute and deliver to Lessor a commercially reasonable non-distrurbance agreement (a "Non -Disturbance Agreement") from
the Lender which Non -Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any
options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the
Premises. Within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable
efforts to obtain a Non -Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises.
19
In the event that Lessor is unable to provide the Non -Disturbance Agreement within said 60 days, then Lessee may, at Lessee's option,
directly contact Lender and attempt to negotiate for the execution and delivery of a Nov -Disturbance Agreement.
29.4 Self -Executing. The agreements contained in this Paragraph 29 shall be effective without the execution of any
further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or
refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately
document any subordination, attonnnent and/or Non -Disturbance Agreement provided for herein.
30. Attorneys' Fees. If any Party brings an action or proceeding involving the Premises whether founded in tort, contract or
equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon,
shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or
not such action or proceeding is pursued to decision or judgment. The term "Prevailing Party" shall mean a Party who substantially
obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the
other Party of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule, but
shall be such as to fully reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be entitled to attorneys' fees, costs
and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a
legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per
occurrence for such services and consultation).
31. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any
time, in the case of air emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same
to prospective purchasers, lenders, or Lessees, and making such alterations, repairs, improvements or additions to the Premises as
Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the
Premises and/or other premises as long as there is no material adverse effect on Lessee's use of the Premises. All such activities shall
be without abatement of rent or liability to Lessee.
32. Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written
consent, which consent shall be granted or denied at Lessor's sole discretion.
33. Signs. Lessor may place on the Premises ordinary "For Lease" signs during the last 6 months of the term hereof. All signs
must comply with all Applicable Requirements. Lessee shall not place, construct, or maintain on the glass panes or supports of the
show windows of the Premises, the doors, exterior walls or the roof of the Building, or anywhere else within the Shopping Center
outside of the Premises, or on any interior portions of the Premises that are visible from the exterior of the Premises, any signs,
advertisements, names, insignia, trademarks, descriptive material or any other items without Lessor's prior written consent, which
consent shall be granted or denied at Lessor's sole discretion. Lessor shall designate the size, shape, color, design, and location of all
exterior sign(s) to be installed by Lessee, and Lessee shall, at Lessee's sole cost and expense, fabricate, construct and install all such
sign(s) in full compliance with Lessor's designation and in accordance with the Sign Criteria for the Shopping Center attached hereto,
if any. Lessee agrees to submit plans and specifications for Lessee's sign(s) for Lessor's written approval within 30 days after the full
execution hereof and to install such signs) prior to opening for business at the Premises. Lessor, at Lessee's cost, may remove any
item placed, constructed or maintained in, upon or about the Premises or Shopping Center which does not comply with this paragraph.
Lessee shall have the right to install lettering designating Lessee's business, on both sides of one panel of the pylon signage along
Harbor Blvd at Lessee's expense; with Lessor's approval of location, size, style and color. All signs that are permanently attached to
the Premises or Building shall become the property of Lessor at the expiration or earlier termination hereof; provided, however, that
Lessee shall promptly remove all such signs if Lessor so elects, and Lessee shall promptly repair all damage caused by such removal.
Lessee shall not place, construct or maintain in, upon or about the Premises any search lights, flashing lights, loudspeakers,
phonographs or other visual or audio media.
34. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this
Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall
automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or
all existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the
holder of any such lesser interest, shall constitute Lessor's election to have such event constitute the termination of such interest.
35. Consents. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for
the other Party, such consent shall not be unreasonably withheld or delayed. In those express instances where consent is within the
sole discretion of a party, the party shall have no obligation to adhere to a standard of reasonableness. Lessor's actual reasonable costs
and expenses (including but not limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration
of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or
20
the presence or use of a IIazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation
therefor. Lessor's consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by
Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then -existing Default or Breach, except as may be
otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to
Lessor's consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any
determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall
furnish its reasons in writing and in reasonable detail within 10 business days following such request.
36. Guarantor.
36.1 Execution. The Guarantors, if any, shall each execute a guaranty of lease in the form prescribed by Lessor.
36.2 Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a)
evidence of the execution of the guaranty, including the authority of the party signing on Guarantor's behalf to obligate Guarantor, and
in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty,
(b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect.
37. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of
the Premises during the term hereof.
38. Options. If Lessee is granted any Option, as defined below, then the following provisions shall apply.
38.1 Definition. "Option" shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or
reduce the term of or renew any lease that Lessee has on other property of Lessor; and (b) the right of first refusal or first offer to lease
either the Premises or other property of Lessor;
38.2 Options Personal To Original Lessee. Any Option granted to Lessee in this Lease is personal to the original
Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full
possession of the Premises and, if requested by Lessor, with Lessee certifying that Lessee has no intention of thereafter assigning or
subletting.
38.3 Multiple Options. In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option
cannot be exercised unless the prior Options have been validly exercised.
38.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option: (1) during the period commencing with the giving of any
notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to
whether notice thereof is given Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has been
given 3 or more notices of separate Default, whether or not the Defaults are cured, during the Term of the Lease.
(b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of
Lessee's inability to exercise an Option because of the provisions of Section 38.4(a).
39. Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of
guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all
responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties. While
Lessor does not assume any responsibility to provide any security measures or any liability for failure to provide security measures or
for any inadequacy thereof, Lessor shall have the authority to institute or continue such security measures as Lessor in its sole
discretion deems necessary or appropriate from time to time, the cost and expenses of which shall be considered Common Area
Operating Expenses.
40. Reservations. Lessor reserves the right: (i) to grant, without the consent or joinder of Lessee, such easements, rights and
dedications that Lessor deems necessary, (ii) to cause the recordation of parcel maps and restrictions, and (iii) to create and/or install
new utility raceways, so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably
interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate
such rights.
41. Building Planning. Lessor shall have the right at any time or times, upon giving Lessee not less than 60 days prior written
notice, to provide and furnish Lessee with space of comparable visibility located elsewhere within any of the buildings within the
Shopping Center and to move Lessee into such new space, provided that the usable area of such new space is not less than the usable
area of the Premises and provided that all of Lessee's reasonable out-of-pocket moving expenses (including but not limited to the cost
21
of moving Lessee's personal property, the cost of reprinting Lessee's stationery or other business materials with the new address, and
the cost to relocate and reinstall Lessee improvements and Lessee's telecommunications and computer equipment) shall be paid by
Lessor, and provided further that Lessor shall construct at Lessor's expense such improvements to such new space as shall be
necessary to place it in a condition that is substantially comparable to the Premises. Except as provided in the immediately preceding
sentence, Lessor shall have no obligation to improve such space or pay any other expenses incurred by Lessee as a result of such
relocation. On such relocation, the terms and conditions of tivs Lease shall remain in full force and effect, including but not limited to
the Base Rent payable hereunder and Lessee's Share (even if the usable area of such relocated Premises is in excess of the usable area
of the Premises), except that the Premises shall be in such new location. Upon Lessor's request, the Parties shall execute an
amendment to this Lease in form required by Lessor confirming the relocation of the Premises to such new location. If the new space
does not meet with Lessee's approval, which approval Lessee shall give or withhold in accordance with Paragraph 35, Lessee shall
have the right to cancel this Lease by giving Lessor written notice thereof within 15 days of receipt of Lessor's notification of its intent
to relocate Lessee. Lessee's failure to give such notice within such 15 day period shall be deemed Lessee's approval of the new space.
If timely notice is given by Lessee, then this Lease shall terminate unless Lessor rescinds Lessor's prior notice of its intent to relocate
Lessee within 10 days after Lessor's receipt of Lessee's notice of cancellation.
42. Authority; Multiple Parties; Execution.
(a) If either Party hereto is a corporation, bust, limited liability company, partnership, or similar entity, each individual
executing this Lease on behalf of such entity represents and warrants that be or she is duly authorized to execute and deliver this Lease
on its behalf Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority.
(b) If this Lease is executed by more than one person or entity as "Lessee", each such person or entity shall be jointly
and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this
Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named
Lessees had executed such document.
(c) This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
43. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be
controlled by the typewritten or handwritten provisions.
44. Offer. Preparation of this Lease by either Party or their agent and submission of same to the other Party shall not be deemed
an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.
45. Amendments. This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification.
As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non -monetary
modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
46. Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties arising out of this
Lease O is OX is not attached to this Lease.
47. Accessibility; Americans with Disabilities Act.
(a) The Premises: have not undergone an inspection by a Certified Access Specialist (CASp). 2 have andeigene as
......essi1,:1:,. st.,. daFds pti t ♦ Gaut.,...:. !":.:1 Gado §55.51 et see El have undergone an inspection h. a G.eztifisd 4een....
ucc�a�mmy--�uncmTa�°—Pc�`�h[' o� �S—�"
Speiali.(CA Sp) and 4-- ��txiaed4bat41�qe 123-01 not meet all applicable ................:.... ..ol.,. a ,.,. ssibi4ty-standards,
Galifemia
(b) Since compliance with the Americans with Disabilities Act (ADA) is dependent upon Lessee's specific use of the
Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation.
In the event that Lessee's specific use of the Premises and/or Lessee's Work or improvements to the Premises requires any
modifications, alterations or additions to the Premises in order to comply with the Accessibility Laws, such work shall be performed
by Lessee at Lessee's sole cost and expense. Subject to the terms of this Lease, Lessee shall inderm2ify, defend, hold harmless and
reimburse Lessor from and against any and all claims, actions, causes of action, damages, demands, liabilities, obligations, losses or
expenses (specifically including, but not limited to reasonable attorneys' fees, court costs, and expert witness fees), proceedings, suits,
debts, or any claimed indebtedness alleged against Lessor, its agents and assigns, arising out of or in connection with, in whole or in
part, directly or indirectly (i) any use by Lessee of the Premises which is not in compliance with the Accessibility Laws, (ii) Lessee's
failure to maintain the Premises in compliance with the Accessibility Laws, and/or (iii) Lessee's Work or Improvements to the
Premises which are not in compliance with the Accessibility Laws.
22
48. Soldiers and Sailors Civil Relief Act (SSCRA). Lessee hereby certifies that he/she, individually, or any member or officer
of the Lessee Corporation, Partnership, LLC or any other Organization is not currently an active member of any Branch or in the
Reserve of any Branch of the Armed Forces of the United States of America, and. Further waives all of his/her/their rights to and
under The Soldiers and Sailors Civil Relief Act (SSCRA).
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN. AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND
VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED,
THE TERMS OF TRIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF
LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.
LESSOR
Rio Vista West, LLC,
a California Limited Liability
By:
Name Printed: Richard P, Keller
Title: Member
Address: c/o WREM
3146 Red Hill Ave., Suite 150
Costa Mesa, CA 92626
Telephone: (714) 427-5977
Facsimile: (714) 427-5922
Email: kathy@wrem.com
Email:
ID No. 33-0777028
LESSEE
Santa Ana Police Department
A division of the City of Santa Ana, a municipal corporation
See Attached
By:
Name Printed: Raul Godinez H
Title: City Manager
Address: 20 Civic Center Plaza, 8"' Floor
Santa Ana, Ca. 92701
Telephone: (714) 647-5200
Facsimile: (�
Email: raodineza.santa-ana.m
Email«
Federal ID No.
23
ATTEST:
MAR AU 7A
�T Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
Tamara Bogosian
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
li David )/,alenth
Wcting Chief of Police
24
CITP OF SANTA ANA
RAUL GODINEZ II
City Manager
Exhibit "A"
Site Plan
25
Exhibit `B"
Sign Criteria
26
EXHIBIT "E"
MEMORANDUM OF LEASE TERM COMMENCEMENT
This Form is prepared by Rio Vista West, LLC ("Lessor") and submitted to ("Lessee") per the terms of the Lease dated for
Premises at McFadden Avenue, Santa Ana, CA. Lessee shall either confirm all information as true and correct or make the
appropriate notations where Lessee disagrees with the information supplied by Lessor.
Confirmation of Lease Terms.
1. Date of Lease:
2. Date of Delivery of Premises by Lessor:
3. Lease Term Commencement Date:
4. Date of Expiration of Initial Lease Term:
5. Options to Renew:
6. Date of Minimum Rent Commencement:
7. Date of Adjustments (CAM) Commencement:
8. Total rentable square footage of Premises:
9. Total prepaid Minimum Rent and Adjustments
10. Total Security Deposit:
Lessee Acknowledges:
Lessee has inspected the Premises, including without limitation its physical attributes, square footage, frontage and
configuration, and accepts the Premises in their "As Is" condition as delivered by Lessor, except for the following (if "no exceptions",
enter "NONE):
Lessee acknowledges that the HVAC system, electrical, plumbing and mechanical systems servicing the Premises are in good
working order as of the Lease Term Commencement Date, except for the following (if"no exceptions", enter "NONE"):
Lessee has not relied on any statements, promises, inducements, representations or warranties by Lessor nor any agent,
broker, employee, manager or contractor of Lessor in executing this Memorandum of Lease Tenn Commencement.
Based on its own due diligence and inspection, Lessee acknowledges that the Premises are suitable for Lessee's intended use
and that Lessor is not obligated nor responsible for any repairs, improvements or other work to be made to the Premises.
Acknowledgment of Authority
The undersigned executed this Memorandum of Lease Term Commencement on behalf of Lessor and Lessee warrant and
represent that each is authorized by their respective principals to execute this document on its behalf so that its contents are binding on
the parties without any further action, approval, consent or ratification by either party.
"Lessor"
By: Rio Vista West, ,LLC,
a California Limited Liability Company
By: Williams Real Estate Management, Inc._
Managing Agent
Audrey B. Williams, President
EXHIBIT "E"
33
"Lessee"
Do Not Shen - approve for form on7i
Lessor's Initials:
Lessee's Initials:
EXHIBIT "F"
FORM OF LESSEE'S ESTOPPEL CERTIFICATE
The undersigned, as Lessee, under that certain Shopping Center Retail Lease dated , 20, made with
RIO VISTA WEST LLC, a California limited liability company, as Lessor, hereby certifies as follows:
1. That the undersigned has entered into occupancy of the Premises described in the Lease;
2. That the Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way,
except as follows:
3. That the Lease represents the entire agreement between the parties as to the leasing of the Premises:
4. That the Commencement Date of the Lease is
5. That there is an unexpired term under the Lease of
years;
6. That all conditions of the Lease to be performed by Lessor and necessary to the enforceability of the Lease have
been satisfied;
7. That there are no defaults by either Lessee or Lessor thereunder;
8. That no rents have been prepaid, other than as provided in the Lease; and
9. That on this date there are no existing defenses or offsets which the undersigned has against the enforcement of the
Lease by Lessor.
The undersigned hereby agrees:
1. To disclaim all right, title or interest in the Premises except the rights granted by the Lease; and
2. To notify the holder of any mortgage affecting the Premises of any default on the part of Lessor which Lessee
proposes to cure and deduct from rentals, or use as a basis for cancellation of the Lease and hereby grants to any such holder the
option to cure said default within a reasonable length of time. Lessee further agrees not to invoke any of its remedies under the Lease
during any period that any such holder is proceeding to cure such default with due diligence, or is taking steps with due diligence to
obtain the legal right to enter the Premises and cure the default. The undersigned hereby acknowledges that
is presently the holder of a mortgage affecting the Premises.
EXECUTED this day of 20
BY: (Do Not Sign —for Formonlv
EXHIBIT "G"
RULES AND REGULATIONS
Lessor hereby establishes the following rules and regulations for the safety, care and cleanliness of (i) the store areas
(hereinafter referred to as the "demised premises") of any Lessee or Lessees of the Center (hereinafter referred to as the "Lessee"); (it)
the common area; and (iii) the Center in general, or for the preservation of good order:
A. FOR THE STORE AREAS:
1. All floor areas of the demised premises (including vestibules, entrances, and air returns), doors, fixtures,
windows, and plate glass shall be maintained in a clean, safe and good condition.
2. All trash, refuse, and waste materials shall be stored in adequate containers and regularly removed from the
demised premises. These containers shall not be visible to the general public and shall not constitute a health or fire hazard, or a
nuisance to any other Lessee. In the event that any Lessee shall fail to remedy such a health or fire hazard, or nuisance, within five (5)
days after written notice by Lessor, Lessor may remedy and/or correct such health or fire hazard or nuisance at the expense of the
Lessee involved.
No portion of the demised premises shall be used for lodging purposes.
4. Neither sidewalks nor walkways shall be used to display, store, or place any merchandise, equipment or
devices, except in connection with sidewalk sales held with Lessor's prior written approval. The roof of the demised premises shall
not be used for the storage of merchandise or equipment.
5. No public telephone, newsstand, shoeshine stand, refreshment, vending or other coin operated machine
shall be installed or placed on the sidewalk or walkway area adjacent to the dernised premises or on the Common Areas without
Lessor's prior written approval in each instance.
6. No person or persons shall use the demised premises, or any part thereof, for conducting therein a second-
hand store, auction, distress or fire sale or bankruptcy sale, or "going -out -of -business" sale or "lost our lease" sale, without Lessor's
prior written consent.
7. No portion of the demised premises shall be used for the storage of any merchandise, materials or other
properties, other than those reasonably necessary for the operation of a Lessee's business. Lessor may, from time to time, inspect the
demised premises to insure compliance with the foregoing provisions.
& Except for professionally prepared signs, Lessee shall not black out or otherwise obstruct the windows of
the demised premises, without Lessor's prior written consent.
9. If a Lessee provides its customers with the use of shopping carts and/or baskets, such Lessee shall be
responsible for causing said carts and/or baskets to be stored ordy in areas designated by Lessor. If such Lessee fails to routinely
collect and store said carts as necessary (at least twice on a daily basis), Lessor may assume the responsibility of same and may bill the
Lessee involved on an estimated monthly basis for such service.
B. FOR THE COMMON AREAS:
1. All Lessees and their authorized representatives and invitees shall use any roadway, walkway, or mall
(including the enclosed mall, if any) only for ingress and egress from the stores in the Center. Use of the Common Areas shall be in
an orderly manner in accordance with directional or other signs or guides. Roadways shall not be used at a speed in excess of ten (10)
mules per hour and shall not be used for parking or stopping, except for the immediate loading or unloading of passengers. Walkways
and malls (including the enclosed mall, if any) shall be used only for pedestrian travel.
2. All Lessees and their authorized representatives and invitees shall not use the parking areas for anything
but parking motor vehicles. All motor vehicles shall be parked in an orderly manner within the painted lines defining the individual
parking places. During peak periods of business activity, Lessor can impose any andall controls Lessor deems necessary to operate
the parking lot including, but not limited to, the length of time for parking use.
3. No person shall use any utility area or truck loading area reserved for use in conducting business, except for
the specific propose for which permission to use these areas has been given.
4. No employee shall use any area for motor vehicle parking except the area specifically designated for
employee parking for the particular period of time the use of to be made. No Lessee shall designate an area for employee parking
except the area designated in writing by Lessor.
5. Without the prior written consent of Lessor, no person shall use any of the Common
Areas for (i) Vending, peddling or soliciting orders for sale or distributing of any merchandise, device, service,
periodical, book, pamphlet, or other matter; (ii) Exhibiting any non-professional sign, placard, banner, notice or
other written material or distributing any circular, booklet, handbill, placard, or other material; (iii) Soliciting
membership in any organization, group, or association, or soliciting contributions for any purpose or parading,
patrolling, picketing, demonstrating, or engaging in conduct that might interfere with the use of the Common Areas
or be detrimental to any of the business establishments in the Center; (iv) Using the Common Areas for any purpose
when none of the business establishments in the Center are open for business; (v) Discarding any paper, glass, or
extraneous matter of any kind, except in designated receptacles; (vi) Using a sound -making device that is grossly
annoying or unpleasant to the general public; or (vii)
Damaging any sign, light standard, or fixture, landscaping material or other improvement or property within the
Center.
The above listing of specific prohibitions is not intended to be exclusive, but is intended to indicate the
manner in which the right to use the Common Areas solely as a means of access and convenience in shopping at the
business establishments in the Center is limited and controlled by Lessor.
EXHIBIT "H"
Restricted Uses
As of July 2015
1. As a grocery store, food store, market, mini market, convenience store, health food store or
gourmet market.
2. As a fast food restaurant, with or without, drive-thru facilities.
3. As a shoe store.
4. As a Mexican Fast Food Restaurant.
5. As a store selling cellular telephones, accessories and related supplies.
6. As a business offering "Financial Services". Financial Services means state and national banks,
savings banks, credit unions, savings and loan institutions, mortgage and brokerage companies,
and any other entities in the financial services business, as well as the operation of ATM's and
financial Drive-thrus.
7. Asa business offering money wiring or transfers, money loans, money orders, bill paying or
related financial services.
8. As a store specializing in the sale of Vitamins, food supplements or related products.
9. As a Jewelry Store.
10. As a store selling (a) fresh ground and whole coffee beans, (b) express -based and coffee based
drinks, (c) tea or tea based drinks, (d) gourmet brand -identified brewed coffee, and (e) blended
beverages, including without limitation, those containing the following: coffee, espresso.