STANDARD RETAIL LEASE
FOR UNION LANDING PHASE TWO
LANDLORD:
PAPPAS UNION CITY NO. 2, L.P.,
a California limited partnership
TENANT:
NVERNESS MANAGEMENT, LLC
• California limited liability compan
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 Shops Lease / Inverness Management
STANDARD RETAIL LEASE
FOR UNION LANDING PHASE TWO
TABLE OF CONTENTS
Section Title Page
1. Definitions and Basic Lease Provisions. ....1
Landlord...
1.2 Landlord Address. ...1
1.3 Tenant..... ...1
1.4 Tenant Address.. ..1
1.5 Shopping Center. ...1
1.6 Building... ..2
1.7 Premises
1.8 Tenant's Share.
1.9 Term.
1.10 Payment Obligations
1.11 Permitted Use.
1.12 Insurance
1.13 Brokers..
1.14 [Intentionally Deleted]
1.15 Trade Name...
2. Premises ....
2.1 Premises.
2.2 Landlord's Reservation of Rights 4
2.3 Certified Access Specialist Inspection.
3. Term
3.1 Term; Notice of Lease Dates...
4. Rent.
4.1 Basic Rent.
4.2 Additional Rent
4.3 Late Payments
5. [Intentionally Deleted]
6. Common Area......
6.1 Definition of Common Area....
6.2 Maintenance and Use of Common Area ..
6.3 Control of and Changes to Common Area
6.4 Common Area Expenses...
6.5 Determination of Tenant's Monthly Common Area Expense Charge 8
6.6 Estimate Statement.... 8
6.7 Actual Statement...
6.8 Miscellaneous...
7. Use.
7.1 General..
7.2 Operation of Business
7.3 Parking.....
7.4 Signs, Awnings and Canopies...
7.5 Hazardous Materials....
7.6 Prohibited and Exclusive Uses
7.7 Refuse and Sewage
7.8 Cannabis.
8. Payments and Notices
9. Brokers.
10. Surrender; Holding Over..
10.1 Surrender of Premises
10.2 Holding Over..
10.3 No Effect on Landlord's Rights
11. Taxes.....
11.1 Real Property Taxes....
11.2 Personal Property Taxes...
12. Possession; Condition of Premises; Repairs.
12.1 Delivery of Possession
12.2 Condition of Premises
12.3 Landlord's Repair Obligations
12.4 Tenant's Repair Obligations.
Union Landing Shopping Center
377172.00006/4919-0168-5109.2 (i) Shops Lease / Inverness Management Page
13. Alterations.. .16
13.1 Tenant Changes; Conditions . 16
13.2 Removal of Tenant Changes and Tenant Improvements. ..17
13.3 Removal of Personal Property ..17
13.4 Tenant's Failure to Remove.. ...17
14. Liens. ..18
15. Assignment and Subletting... ..18
15.1 Restriction on Transfer 18
15.2 Transfer Notice... 19
15.3 Landlord's Options.. 19
15.4 Additional Conditions 20
16. Entry by Landlord 20
17. Utilities and Services .20
18. Indemnification and Exculpation..
18.1 Tenant's Assumption of Risk and Waiver
18.2 Tenant's Indemnification of Landlord ...
18.3 Survival; No Release of Insurers; No Limitation
19. Damage or Destruction.
19.1 Landlord's Rights and Obligations..
19.2 Tenant's Costs and Insurance Proceeds
19.3 Abatement of Rent...
19.4 Inability to Complete.
19.5 Damage Near End of Term
19.6 Waiver of Termination Right
20. Eminent Domain..
20.1 Substantial Taking.....
20.2 Partial Taking; Abatement of Rent.
20.3 Condemnation Award
20.4 Temporary Taking...
20.5 Waiver of Termination Right
21. Tenant's Insurance...
21.1 Types of Insurance.
21.2 Requirements.....
21.3 Effect on Insurance
22. Landlord's Insurance.
23. Waiver of Insurers..
24. 29
Landlord's Remedies; Re-Entry Rights ... 29
Landlord's Remedies; Continuation of Lease. 29
Landlord's Right to Perform 30
Late Charges.. 30
Security Interest
Rights and Remedies Cumulative..
25. Landlord's Default.
26. Subordination..
27. Estoppel Certificate... 31
27.1 Tenant's Obligations..... ...31
27.2 Tenant's Failure to Deliver .32
28. Relocation ... ..32
29. Modification and Cure Rights of Landlord's Mortgagees and Lessors ...32
29.1 Modifications. 32
29.2 Cure Rights. .32
30. Quiet Enjoyment... 33
31. Transfer of Landlord's Interest.. 33
32. Limitation on Landlord's Liability.. 33
33. Financial Statements .. 33
33.1 Current Financial Statements .33
33.2 [Intentionally Deleted] 33
34. Miscellaneous.. .33
Governing Law... ..33
34.1 34.2 Successors and Assigns. ..34
34.3 No Merger... ...34
34.4 Professional Fees. ....34
34.5 Waiver.. .34
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 (i) Shops Lease / Inverness Management
34.6 Terms and Headings..
34.7 Time....
34.8 Prior Agreements; Amendments.
34.9 Severability
34.10 Recording..
34.11 Exhibits and Riders..
34.12 Accord and Satisfaction
34.13 No Partnership.
34.14 Force Majeure.
34.15 Execution in Counterparts...
34.16 Nondisclosure of Lease Terms
34.17 Non-Discrimination..
34.18 Jury Trial.....
34.19 Tenant Delay...
34.20 Waiver of Claims
34.21 Auctions..
35. Lease Execution
35.1 Tenant's Authority.
35.2 Joint and Several Liability..
35.3 No Option....
EXHIBITS
EXHIBIT "A" Shopping Center Site Plan
EXHIBIT "B" Floor Plan of Premises
EXHIBIT "C" [Intentionally Deleted]
EXHIBIT "D" Sample Form of Notice of Lease Term Dates
EXHIBIT "E" Rules and Regulations
EXHIBIT "F" Sample Form of Tenant Estoppel Certificate
EXHIBIT "G" [Intentionally Deleted]
EXHIBIT "H" Sign Criteria
EXHIBIT "I" Prohibited, Restricted and Exclusive Uses
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 (iii) Shops Lease / Inverness Management
INDEX OF MAJOR DEFINED TERMS
LOCATION OF DEFINITION
DEFINED TERMS IN SHOPPING CENTER LEASE
Abandonment... .35
Actual Statement .12
ADA .13
Additional Rent. .8
Agency ... .21
Applicable Laws. ..13
Cannabis .17
CASp Reports. 5
CDC. 9
City... ..2
Collateral....... .37
Common Area Expenses... .10
Common Area, .. .8
Common Utility Facilities ..10
days .. .41
Delivery Conditions ..2
Effective Date... .45
Estimate Statement .11
Exclusive Items ... Exhi
Floor Area...
Force Majeure Delays
Hazardous Materials.
HVAC....
Indemnified Claims.
Landlord.....
Landlord Indemnified Parties
Lease..
OPA..
PCBs.
PDF
Pre-Approved Change
Project Signs...
Real Property Taxes
Released Claims..
Rent...
Service Provider
Shopping Center
Sign Criteria...
Tenant.
Tenant Change..
Tenant Changes.
Tenant Delay...
Tenant's Monthly Common Area Expense Charge.
Tenant's Parties
Transfer..
Transfer Date.
Transfer Notice... .26
Transferee... .25
TSM Facilities
Union Landing Shopping Center.. .2
WHO....
Worth at the time of award .36
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 (iv) Shops Lease / Inverness Management
STANDARD RETAIL LEASE
FOR UNION LANDING PHASE TWO
This Standard Retail Lease for Union Landing Phase Two (this "Lease") is made and dated for reference purposes as of the "Effective Date" identified on the signature page hereof, by and between Landlord and Tenant who agree as follows:
1. DEFINITIONS AND BASIC LEASE PROVISIONS. The following are essential business terms na definitions applicable to this Lease. References in parentheses are to Sections in the remainder of th ease or Exhibits where these terms are particularly relevant or are further discusse
1.1 Landlord: Pappas Union City No. 2, L.P.., a California limited partnership
1.2 Landlord Address: Pappas Union City No. 2, L.P.
Attn: John Pappas
2020 L Street, St Floor
Sacramento, CA 95811
Phone: (916) 447-7100
Facsimile: (916) 447-7112
1.3 Tenant: Inverness Management, LIC, a California limited liability company
1.4 Tenant Address: Inverness Management
Attn: Liza Morris
2020 L Street, 5ü Floor
Sacramento, CA 95811
Phone: (916) 447-7100
Facsimile: (916) 447-7112
1.5 Shopping Center. As used herein, the term "Shopping Center" means a portion of that certain larger shopping center commonly known as "Union Landing Shopping Center", and is located on the northerly side of Courthouse Drive, between Holly Way and Dyer Street, in City of Union City ("City"), Alameda County, California. The current or contemplated configuration of the Shopping Center is depicted on the site plan attached hereto as Exhibit "A" (the "Site Plan"). The Shopping Center includes all buildings, improvements and facilities, now or subsequently located within the area outlined as the Shopping Center on the Site Plan, as such area may be expanded or reduced from time to time. The Floor Area (as defined below) of all of the buildings currently contemplated for construction within the Shopping Center is approximately 38,500 square feet (which Floor Area is subject to change from time to time based on the actual Floor Area constructed within the Shopping Center). As used herein, "Floor Area" means the total number of square feet of floor space in a building including basement, subterranean, balcony and mezzanine space, irrespective of whether actually occupied and shall be measured from the exterior line of the exterior walls and from the center line of any party or common interior walls without deduction for columns, walls or other structural or non- structural components.
Building. That certain building denoted on the Site Plan as "Shops 3" located in the Shopping Center, with a Floor Area of approximately 7,008 square feet.
Premises. Those certain premises (as shown on the Site Plan and the floor plan attached hereto as Exhibit "B"), within the Building, with a Floor Area of approximately 1,200 square feet and a street address of 31079 Courthouse Drive, Union City, California.
1.8 Tenant's Share. 3.117%, based upon 38,500 square feet of Floor Area within the Shopping Center and subject to adjustment as provided below. Tenant Share is determined as a fraction, the numerator of which is the Floor Area of the Premises and the denominator of which is the Floor Area of all buildings in the Shopping Center, including the Premises, which from time to time have been constructed within the Shopping Center (commencing at such time as the occupants of such buildings commence to pay rent or Common Area Expenses or open for business, whichever is earlier). From time to time at Landlord's option, Landlord's architect may determine and redetermine the actual Floor Area of the Premises and/or other building(s) in question, and thereupon Tenant's Share, Monthly Basic Rent and the Security Deposit will be adjusted accordingly.
Term. The initial Term of this Lease shall be sixty (60) full calendar months beginning on the Commencement Date.
Turnover Date. The date Landlord delivers possession of the Premises to Tenant, which Turnover Date shall be evidenced by Landlord's delivery of keys to the Premises to Tenant; provided, however, Landlord shall have no obligation to deliver the Premises to Tenant unless and until all of the following conditions precedent for Landlord's benefit are satisfied (collectively, the "Delivery Conditions"):
(a) Tenant has delivered to Landlord, a copy of this Lease, fully executed by Tenant; (b) Tenant has delivered Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 Shops Lease / Inverness Management to Landlord, the Security Deposit and the first installment of Monthly Basic Rent; and (c) Tenant has delivered to Landlord, copies of policies of insurance or certificates thereof as required under Section 21 of this Lease.
1.9.2 Commencement Date. December 1, 2025.
1.10 Payment Obligations. All sums payable by Tenant to Landlord pursuant to this Lease (including, without limitation, reimbursements or advances of Common Area Expenses, interest, late charges and amounts commonly referred to as "rent") shall be deemed to be included within the definition of "Rent" herein.
1.10.1 Basic Rent. Basic Rent is predicated on the initial rate of $38.00 per square foot per month. Such Basic Rent, beginning on the Commencement Date, shall be:
Months Annual Basic Rent* Monthly Basic Rent*
1-60** $45,600.00 $3,800.00
* If the actual Floor Area of the Premises is more or less than the estimated Floor Area referred to in Section 1.7, the Basic Monthly Rent shall be adjusted at the applicable per foot rate. ** Month 1 shall commence on the Commencement Date and shall include any partial month in which the Commencement Date occurs, which partial month shall be prorated in accordance with Section 4.1 of the Lease.
1.10.2 Common Area Expenses. Common Area Expenses are defined and described in Section 6.4 below.
1.10.3 Security Deposit. None.
1.10.4 Interest Rate. The lesser of: (a) the rate announced from time to time by Wells Fargo Bank or, if Wells Fargo Bank ceases to exist or ceases to publish such rate, then the rate announced from time to time by the largest (as measured by deposits) chartered bank operating in California, as its "prime rate" or "reference rate," plus five percent (5%); or (b) the maximum rate permitted by law.
1.11 Permitted Use. Subject to Section 7 below and the Prohibited, Restricted and Exclusive Uses set forth in Exhibit "I" attached hereto, Tenant shall have the non-exclusive right to operate the Premises as a management office, a police substation, a place for public meetings related to the Shopping Center and for incidental uses related to any of the foregoing (the "Permitted Use"). Tenant shall not operate the Premises for any other use without Landlord's prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
1.12 Insurance. Tenant shall maintain insurance pursuant to and in accordance with Section 21 below. (Section 21).
1.13 Brokers:
Landlord's Broker: None
Tenant's Broker: None
1.14 [Intentionally Deleted]
1.15 Trade Name. Inverness Management.
2. PREMISES.
Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises upon and subject to the terms, covenants and conditions contained in this Lease to be performed by each party.
2.2 Landlord's Reservation of Rights. Provided Tenant's use of and access to the Premises is not interfered with in an unreasonable manner, Landlord reserves for itself the right from time to time to install, use, maintain, repair, replace and relocate pipes, ducts, conduits, wires and appurtenant meters and equipment above the ceiling surfaces, below the floor surfaces and within the walls of the Building and the Premises.
2.3 Certified Access Specialist Inspection. For purposes of Section 1938(a) of the California Civil Code, Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, that the Premises have not undergone inspection by a Certified Access Specialist (CASp). In addition, the following notice is hereby provided pursuant to Section 1938(e) of the California Civil Code: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -2- Shops Lease / Inverness Management construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises. " In furtherance of and in connection with such notice: (i) Tenant, having read such notice and understanding Tenant's right to request and obtain a CASp inspection and with advice of counsel, hereby elects not to obtain such CASp inspection and forever waives its rights to obtain a CASp inspection with respect to the Premises, Building and/or any other portion of the Shopping Center to the extent permitted by Applicable Laws now or hereafter in effect; and (ii) if the waiver set forth in clause (i) hereinabove is not enforceable pursuant to Applicable Laws now or hereafter in effect, then Landlord and Tenant hereby agree as follows (which constitute the mutual agreement of the parties as to the matters described in the last sentence of the foregoing notice): (A) Tenant shall have the one-time right to request for and obtain a CASp inspection, which request must be made, if at all, in a written notice delivered by Tenant to Landlord on or before the Commencement Date; (B) any CASp inspection timely requested by Tenant shall be conducted (1) between the hours of 9:00 a.m. and 5:00 p.m. on any business day, (2) only after ten (10) days' prior written notice to Landlord of the date of such CASp inspection, (3) in a professional manner by a CASp designated by Landlord and without any testing that would damage the Premises, Building or any other portion of the Shopping Center in any way, and (4) at Tenant's sole cost and expense, including, without limitation, Tenant's payment of the fee for such CASp inspection, the fee for any reports prepared by the CASp in connection with such CASp inspection (collectively, the "CASp Reports") and all other costs and expenses in connection therewith; (C) Tenant shall deliver a copy of any CASp Reports to Landlord within two (2) business days after Tenant's receipt thereof; (D) Tenant, at its sole cost and expense, shall be responsible for making any improvements, alterations, modifications and/or repairs to or within the Premises to correct violations of construction-related accessibility standards including, without limitation, any violations disclosed by such CASp inspection; and (E) if such CASp inspection identifies any improvements, alterations, modifications and/or repairs necessary to correct violations of construction-related accessibility standards relating to those items of the Building and/or any other portion of the Shopping Center located outside the Premises that are Landlord's obligation to repair as set forth in Section 12.3 below, then Landlord shall perform such improvements, alterations, modifications and/or repairs as and to the extent required by Applicable Laws to correct such violations, and Tenant shall reimburse Landlord for the cost of such improvements, alterations, modifications and/or repairs within ten (10) business days after Tenant's receipt of an invoice therefor from Landlord.
3.1 Term; Notice of Lease Dates. The Term of this Lease shall be for the period designated in Section 1.9 commencing on the Commencement Date, and ending on the expiration of such period, unless the Term is sooner terminated or extended as provided in this Lease. Notwithstanding the foregoing, if the Commencement Date falls on any day other than the first day of a calendar month then the Term will be measured from the first day of the month following the month in which the Commencement Date occurs.
Within ten (10) days after Landlord's written request, Tenant shall execute a written confirmation of the Commencement Date and expiration date of the Term in the form of the Notice of Lease Term Dates attached as Exhibit "D" to this Lease. The Notice of Lease Term Dates shall be binding upon Tenant unless Tenant objects thereto in writing within such ten (10) day period.
4. RENT.
Basic Rent. Tenant agrees to pay Landlord, as basic rent for the Premises, the Annual Basic Rent designated in Section 1.10 above. The Annual Basic Rent shall be paid by Tenant in twelve (12) equal monthly installments of Monthly Basic Rent in the amounts designated in Section 1.10 above in advance on the first day of each and every calendar month during the Tenn, except that the first full month's Monthly Basic Rent shall be paid upon execution of this Lease by Tenant. Monthly Basic Rent for any partial month shall be prorated in the proportion that the number of days this Lease is in effect during such month bears to the actual number of days in such month.
Additional Rent. All amounts and charges payable by Tenant under this Lease in addition to the Basic Rent described in Section 4.1 above shall be considered additional rent ("Additional Rent") for the purposes of this Lease, and the word "rent" or "Rent" in this Lease shall include such Additional Rent as well as Basic Rent unless the context specifically or clearly implies that only the Basic Rent is referenced. All Rent shall be paid to Landlord as provided in Section 8, without any prior demand therefor and without any deduction or offset, in lawful money of the United States of America.
Late Payments. Late payments of rent will be subject to interest and a late charge as provided in Sections 24.6 and 24.7 below.
5. [Intentionally Deleted]
COMMON AREA.
Union Landing Shopping Center/
-3- Shops Lease / Inverness Management
377172.00006/4919-0168-5109.2
Definition of Common Area. The term "Common Area," as used in this Lease means all areas and the improvements thereon within the exterior boundaries of the Shopping Center now or later made available for the general use of Landlord, Tenant and other persons entitled to occupy Floor Area in the Shopping Center and their customers, including, without limitation, the parking facilities of the Shopping Center which serve the Building, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways (other than the drive-thru areas serving a particular premises exclusively), project identification and directory signage, landscaped areas, the exterior surfaces and roofs of all buildings (including the Building) and thematic elements located within the Shopping Center, any facilities, equipment and improvements required under any transportation systems management plan imposed by the City on or with respect to the Shopping Center including without limitation designated parking spaces, bicycle racks, etc. (collectively, "TSM Facilities"), and similar areas and facilities situated within the Shopping Center which are not reserved for the exclusive use of any Shopping Center occupants. Without limiting this definition, Landlord may include in the Common Area those portions of the Shopping Center presently or later sold or leased to purchasers or tenants, as the case may be, until the commencement of construction of the building(s) thereon, at which time there shall be withdrawn from the Common Area those areas not provided by such owner or lessee for common use. Common Area shall not include (i) the entryway to a tenant's premises, (ii) any improvements installed by a tenant outside of its premises, whether with or without Landlord's knowledge or consent, including without limitation, drive-thru areas and equipment serving a particular building and/or suite(s), or (iii) any areas or facilities that are included in the description of premises leased to Tenant acknowledges and agrees that Exhibit "A" sets forth a proposed general layout of the Shopping Center, but it shall not be deemed a representation by Landlord that any improvements not presently existing in the Shopping Center shall be constructed as indicated thereon or within any specified time frame, or that any tenants or occupants designated by name or type of business shall conduct business in the Shopping Center, or that the Shopping Center shall not be expanded, reduced or otherwise modified. Landlord expressly makes no representations or warranties of any kind or nature as to the nature, size, location, or time of construction of any structures in the Shopping Center whether such structures are shown on the Site Plan, any other exhibit to this Lease or on any sales or other materials or literature concerning the Shopping Center.
Landlord makes no representations or warranties that Tenant will be able to obtain any licenses, permits or other authorizations necessary or required to conduct the uses permitted herein nor that the Premises are suitable for the uses permitted herein.
Maintenance and Use of Common Area. The manner in which the Common Area shall be maintained shall be solely determined by Landlord. If any owner or tenant of any portion of the Shopping Center maintains Common Area located upon its parcel or demised premises (Landlord shall have the right in its sole discretion to allow any purchaser or tenant to so maintain Common Area located upon its parcel or demised premises and to be excluded from participation in the payment of Common Area Expenses as provided below), Landlord shall not have any responsibility for the maintenance of that portion of the Common Area and Tenant shall have no claims against Landlord arising out of any failure of such owner or tenant to so maintain its portion of the Common Area. The use and occupancy by Tenant of the Premises shall include the non-exclusive right to use the Common Area (except those portions of the Common Area on which have been constructed or placed permanent or temporary kiosks, displays, carts, and stands and except areas used in the maintenance or operation of the Shopping Center), in common with Landlord and other tenants of the Shopping Center and their customers and invitees, subject to such reasonable, non-discriminatory rules and regulations concerning the Shopping Center as may be established by Landlord from time to time including, without limitation, the Rules and Regulations attached hereto as Exhibit "E". Tenant agrees to promptly comply with all such rules and regulations and any reasonable, non-discriminatory amendments thereto, upon receipt of written notice from Landlord.
6.3 Control of and Changes to Common Area. Landlord shall have the sole and exclusive control of the Common Area, as well as the right to make reasonable changes to the Common Area including, without limitation, installing improvements, materials, equipment and/or other items to improve health and safety conditions to comply with recommendations and/or requirements of the Centers for Disease Control ("CDC'"), the World Health Organization ("WHO") and/or Applicable Laws. Provided Landlord does not materially interfere with Tenant's use of and access to the Premises, Landlord's rights shall include, but not be limited to, the right to (a) restrain the use of the Common Area by unauthorized persons; (b) cause Tenant to remove or restrain persons from any unauthorized use of the Common Area if they are using the Common Area by reason of Tenant's presence in the Shopping Center; (c) place permanent or temporary kiosks, displays, carts, and stands in the Common Area and to lease same to tenants; (d) temporarily close any portion of the Common Area for repairs, improvements or alterations, to discourage non-customer use, to prevent public dedication or an easement by prescription from arising, or for any other reason deemed appropriate in Landlord's judgment; and (e) reasonably change the shape and size of the Common Area, add, eliminate or change the location of improvements to the Common Area, including, without limitation, buildings, lighting, parking areas, landscape areas, roadways, drive aisles, walkways and curb cuts.
6.4฿ Common Area Expenses. The term "Common Area Expenses" as used in this Lease means all costs and expenses incurred by Landlord (a) in operating, managing, policing, insuring, servicing, repairing, maintaining and replacing the Common Area, (b) in maintaining, repairing and replacing the exterior surface of exterior walls and roofs of the buildings from time to time constituting the Shopping Center including the Building and all thematic elements in the Shopping Center, provided if any tenants) have signage on any such Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -4- Shops Lease / Invemess Management thematic elements, then the costs of maintaining such tenants' signage shall be allocated only among the tenants with such signage; (c) in operating, insuring, repairing, replacing and maintaining the Common Utility Facilities. "Common Utility Facilities" are defined to include but are not limited to, sanitary sewer lines and systems, gas lines and systems, water lines and systems, fire protection lines and systems, electric power, telephone and communication lines and systems, and storm drainage and retention facilities whether or not exclusively serving the premises of any tenant or store located in the Shopping Center. Common Area Expenses shall include, without limitation, the following: expenses for repair, maintenance, insurance and replacement of landscaping and irrigation lines and lighting within the Shopping Center; TSM Facilities within the Shopping Center, storm drainage lines and systems, fire protection systems and similar items, traffic, directional and Shopping Center identification signs, including parking area light standard Project identification banners, Shopping Center identification signage on thematic elements, and the Shopping Center monument/pylon signs ("Project Signs"); patching, repaving, resurfacing, slurry coating and restriping of parking areas, sidewalks, and curbs; exterior building and other improvement washing, painting, repairing and maintenance; janitorial services, Common Area irrigation water; electricity for Common Area and Shopping Center identification signage and directional signage and lighting, including lighting for the Project Signs as well as repair, maintenance and replacement of same; trash removal, security, if any, and security personnel to implement such services, including, if Landlord deems necessary, the cost of security guards or security alarms and devices; fire protection and similar items; non-refundable contributions toward one or more reserves for replacements other than equipment; costs for depreciation on maintenance and operating machinery and equipment, if owned, and rental paid for such machinery and equipment, if rented; charges, surcharges, and other levies related to the requirements of any federal, state or local governmental agency; expenses related to the Common Utility Facilities; the costs of repairing any casualty damage in excess of any insurance proceeds received by Landlord; personal property taxes and Real Property Taxes on the improvements and land comprising the Common Area; costs associated with contesting any Real Property Taxes (including tax appeals) on the improvements and land comprising the Common Area; costs of insurance maintained by Landlord pursuant to Section 22; costs of improvements to the Common Area as may be required from time to time by any Applicable Laws, ordinances, rules or regulations of any governmental authority or agency having jurisdiction thereof; the costs for purchase, rental, installation and removal of holiday decorations; and the cost of premiums for public liability, property damage, fire and extended coverage insurance (including reasonable reserves for deductibles and any self-insured retention and including "Earthquake Insurance," "Flood Insurance," "Lessor's Liability" and "loss of rental insurance" if Landlord deems desirable), together with insurance against sprinkler damage, vandalism and malicious mischief, and any other insurance carried or deemed necessary by Landlord or required by Landlord's lender or mortgagee on the Common Areas, buildings and/or improvements in the Shopping Center. Portions of the Shopping Center may be owned or leased from time to time by various persons or entities occupying freestanding facilities or other facilities containing a substantial amount of Floor Area or utilizing a greater than average proportion of parking and designated by Landlord as "Other Stores." The contributions, if any, of the Other Stores towards the Common Area Expenses (whether on a land to land or building to building basis, or otherwise as reasonably determined by Landlord) shall be credited toward payment of Common Area Expenses and the remainder shall be shared by all remaining tenants of the Shopping Center (i.e., other than tenants of such Other Stores) on a pro rata basis based upon the Floor Area of the premises in question as compared to the total Floor Area of the entire Shopping Center, exclusive of such Other Stores. Additionally, portions of the Shopping Center or specific premises within the Shopping Center may generate expenses which are unique to such areas of the Shopping Center or such premises in which event Landlord reserves the right to allocate such expenses only to the tenants) of such areas or premises and to deduct such expenses from Common Area Expenses allocated among all remaining tenants of the Shopping Center.
6.5 Determination of Tenant's Monthly Common Area Expense Charge. From and after the Commencement Date, Tenant shall pay to Landlord, on the first day of each calendar month during the Term of this Lease, Tenant's Share of an amount estimated by Landlord to be the monthly Common Area Expenses for the Shopping Center for that month ("Tenant's Monthly Common Area Expense Charge"), except that the first full month's Tenant's Monthly Common Area Expense Charge shall be paid upon execution of this Lease by Tenant.
6.6 Estimate Statement. Prior to the Commencement Date and on or about April 1st of each subsequent calendar year during the Term of this Lease, Landlord will endeavor to deliver to Tenant a statement ("Estimate Statement") wherein Landlord will estimate both the Common Area Expenses and Tenant's Monthly Common Area Expense Charge for the then current calendar year. Tenant agrees to pay Landlord, as Additional Rent, Tenant's estimated Monthly Common Area Expense Charge each month thereafter, beginning with the next installment of Rent due, until such time as Landlord issues a revised Estimate Statement or the Estimate Statement for the succeeding calendar year; except that, concurrently with regular monthly Rent payment next due following the receipt of each such Estimate Statement, Tenant shall pay Landlord an amount equal to one monthly installment of Tenant's estimated Monthly Common Area Expense Charge (less any applicable Common Area Expenses already paid) multiplied by the number of months from January, in the current calendar year, to the month of such Rent payment next due, all months inclusive. If at any time during the Term of this Lease, but not more often than quarterly, Landlord reasonably determines that Tenant's Share of Common Area Expenses for the current calendar year will be greater than the amount set forth in the then current Estimate Statement, Landlord may issue a revised Estimate Statement and Tenant agrees to pay Landlord, within ten (10) days of receipt of the revised Estimate Statement, the Union Landing Shopping Centes/
377172.00006/4919-0168-5109.2 -5- Shops Lease / Inverness Management difference between the amount owed by Tenant under such revised Estimate Statement and the amount owed by Tenant under the original Estimate Statement for the portion of the then current calendar year which has expired. Thereafter Tenant agrees to pay Tenant's Monthly Common Area Expense Charge based on such revised Estimate Statement until Tenant receives the next calendar year's Estimate Statement or a new revised Estimate Statement for the current calendar year.
6.7 Actual Statement. By April 1st of each calendar year during the Term of this Lease, Landlord will also endeavor to deliver to Tenant a statement ("Actual Statement") which states Tenant's Share of the actual Common Area Expenses for the preceding calendar year. If the Actual Statement reveals that Tenant's Share of the actual Common Area Expenses is more than the total Additional Rent paid by Tenant for Common Area Expenses on account of the preceding calendar year, Tenant shall pay Landlord the difference in a lump sum within 10 days of receipt of the Actual Statement. If the Actual Statement reveals that Tenant's Share of the actual Common Area Expenses is less than the amount actually paid by Tenant for Common Area Expenses during the preceding calendar year, Landlord will credit any overpayment toward the next monthly installments) of Tenant's Share of the Common Area Expenses due under this Lease.
Miscellaneous. Any delay or failure by Landlord in delivering any Estimate Statement or Actual Statement pursuant to this Section 6 will not constitute a waiver of its right to require an increase in rent nor will it relieve Tenant of its obligations pursuant to this Section 6, except that Tenant will not be obligated to make any payments based on such Estimate Statement or Actual Statement until ten (10) days after receipt of such Estimate Statement or Actual Statement. If Tenant does not object to any Estimate Statement or Actual Statement within thirty (30) days after Tenant receives any such statement, such statement will be deemed final and binding on Tenant. Even though the Term has expired and Tenant has vacated the Premises, when the final determination is made of Tenant's Share of the actual Common Area Expenses for the year in which this Lease terminates, Tenant agrees to promptly pay any increase due over the estimated expenses paid and, conversely, any overpayment made in the event said expenses decrease shall promptly be rebated by Landlord to Tenant. Such obligation will be a continuing one which will survive the expiration or termination of this Lease. Prior to the expiration or sooner termination of the Lease Term and Landlord's acceptance of Tenant's surrender of the Premises, Landlord will have the right to estimate the actual Common Area Expenses for the then current lease year and to collect from Tenant prior to Tenant's surrender of the Premises, Tenant's Share of any excess of such actual Common Area Expenses over the estimated Common Area Expenses paid by Tenant in such lease year.
General. Tenant shall use the Premises solely for the Permitted Use specified in Section 1.11 above and under the Trade Name specified in Section 1.15 above, and shall not use or permit the Premises to be used for any other use or purpose or under any other trade name whatsoever. Nothing in this Lease shall be construed to grant Tenant an exclusive right to such Permitted Use or any other use.
7.1.1 Tenant shall observe and comply with the "Rules and Regulations" attached hereto as Exhibit "E", and all reasonable non-discriminatory modifications thereof and additions thereto from time to time, put into effect and furnished by Landlord to Tenant. Landlord shall endeavor to enforce the Rules and Regulations, but shall have no liability to Tenant for the violation or non-performance by any other tenant ot occupant of the Shopping Center of any such Rules and Regulations.
Tenant shall not do anything or suffer anything to be done in or about the Premises or any other portion of the Shopping Center which will in any way violate any law, statute, ordinance or other governmental rule, regulation or requirement now in force or which may hereafter be enacted or promulgated (collectively, "Applicable Laws"). Subject to Landlord's obligation to comply with Applicable Laws with respect to those items of the Premises, Building and/or Common Area that are Landlord's obligation to repair as set forth in Section 12.3 below, Tenant shall, at its sole cost and expense, observe and comply with all requirements of any board of fire underwriters or similar body relating to the Premises, and all Applicable Laws now or hereafter in force (including without limitation, those Applicable Laws relating to or affecting the use, occupancy, alteration or improvement of the Premises, including, without limitation, the provisions of Title III of the Americans with Disabilities Act of 1990 ("ADA") as it pertains to Tenant's use, occupancy, improvement and alteration of the Premises). Notwithstanding the foregoing, to the extent Landlord's compliance obligations (including without limitation, any obligations to correct violations of construction- related accessibility standards described in Section 2.3 above) in the immediately preceding sentence are triggered by any improvements or Tenant Changes made to the Premises by or on behalf of Tenant including the initial Tenant Improvements), Tenant's particular manner of use of the Premises, changes in Applicable Laws that are born out of force majeure events (e.g., the cost of installing additional barriers in the Premises that are required to ensure customers/invitees are complying with social distancing requirements and/or to ensure separation between customers/invitees and Tenant's employees) and/or Tenant's installation of any trade fixtures, furniture, equipment or personal property in the Premises, Tenant shall reimburse Landlord for the reasonable cost of such compliance within ten (10) business days after Tenant's receipt of an invoice therefor from Landlord. With respect to ADA, Tenant's compliance obligations shall include all interior improvements, whether initially installed by Tenant or by Landlord, and Tenant shall indemnify, defend and hold Landlord harmless from any liability for noncompliance and any expense of effecting compliance as to Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -6- Shops Lease / Inverness Management the Premises interior including all improvements and equipment, layout of aisles and displays and access for customers to and within the Premises. If Tenant is permitted to use any outdoor seating or any exterior merchandise display such as a sidewalk sale or promotion, Tenant shall be solely responsible for complying with ADA access requirements.
7.1.3 Tenant shall not use or allow the Premises to be used (a) in violation of any recorded covenants, conditions and restrictions affecting the Shopping Center or of any law or governmental rule or regulation, or of any certificate of occupancy issued for the Premises or the Building, or (b) for any improper, immoral, unlawful or reasonably objectionable purpose. Tenant shall not do or permit to be done anything which will obstruct or interfere with the rights of other tenants or occupants of the Shopping Center, or injure or annoy them. Tenant shall not cause, maintain or permit any nuisance in, on or about the Premises, the Building or the Shopping Center, nor commit or suffer to be committed any waste in, on or about the Premises, the Building or the Shopping Center. Tenant and Tenant's employees and agents shall not solicit business in the Common Area, nor shall Tenant distribute any handbills or other advertising matter in the Common Area.
Tenant and Tenant's employees and agents shall not provide any outside music or lighting without Landlord's prior written approval. The judgment of any court of competent jurisdiction or the admission of Tenant in any judicial action, regardless of whether Landlord is a party thereto, that Tenant has violated any of said Operation of Business. Tenant shall open the Premises for business on the Commencement Date, and Tenant shall thereafter continuously operate all of the leasable area of the Premises during the entire Term with due diligence and efficiency. Tenant shall keep its storefront sign well lighted during the standard Shopping Center hours of night time operation. During the Term, neither Tenant, nor any entity owned or controlled directly or indirectly by Tenant, its constituent partners, shareholders or directors, shall, without the prior written consent of Landlord, directly or indirectly engage in any similar or competing business with that to be operated by Tenant in the Premises within a radius of five (5) miles from the outside boundary of the Shopping Center, measured on a straight line basis.
Parking. Tenant and its employees shall park their vehicles only in those portions of the Common Area from time to time designated for such purpose by Landlord. Further, Landlord shall have the right to adopt and implement such alternative parking programs as may be necessary to alleviate parking problems during peak traffic periods. The use of the parking area shall be subject to the Parking Rules and Regulations attached hereto as Exhibit "E" and any other reasonable, non-discriminatory rules and regulations adopted by Landlord and/or Landlord's parking operators from time to time, including any system for controlled ingress and egress and charging visitors and invitees, with appropriate provision for validation of such charges. Tenant shall furnish Landlord with a list of its employees and the license numbers of their vehicles within fifteen (15) days after Landlord requests such information. Tenant shall be responsible for ensuring that its employees comply with all the provisions of this Section and such other parking rules and regulations as may be adopted and implemented by Landlord from time to time, including, but not limited to, systems of validation, shuttle transportation or any other programs which may be deemed necessary or appropriate by Landlord to control, regulate or assist parking by customer of the Shopping Center. Landlord or its agents shall have the right to tow or cause the towing of any vehicle of Tenant, its employees or agents that may be parked in an unauthorized area and/or in violation of the Parking Rules and Regulations, and Tenant shall indemnify and hold Landlord harmless from and against any and all claims, demands, losses, damages, costs or expenses (including, without limitation, the costs incurred in conjunction with the towing of any vehicle) asserted in connection with or arising from the removal of any such vehicle.
7.4 Signs, Awnings and Canopies.
7.4.1 Tenant shall have the right, at its sole cost and expense, to install its customary exterior signage upon the front exterior wall of the Premises in the location designated by Landlord therefor, provided such sign (i) has been previously approved in writing by Landlord, and (ii) is in compliance with all Applicable Laws (including without limitation, the Union City Building Department's regulations and requirements) and Landlord's Sign Criteria (defined below). Except as provided in the immediately preceding sentence, Tenant will not place or suffer to be placed or maintained on the roof or on any exterior door, wall or window (or within 48 inches of any window) of the Premises any sign, awning or canopy, or advertising matter on the glass of any window or door of the Premises without Landlord's prior written consent. Tenant further agrees to maintain such sign, awning, canopy, decoration, lettering or advertising matter as may be approved in good condition and repair at all times. Tenant agrees, at Tenant's sole cost, to obtain a canopy type sign from the source designated by Landlord and any other signs required by Landlord in strict conformance with Landlord's sign criteria as set forth on Exhibit "H" attached hereto ("Sign Criteria") as to design, material, color, location, size and letter style. Tenant's sign shall be installed prior to Tenant's opening for business and shall thereafter be maintained by Tenant in good condition and repair at its own expense.
7.4.2 If Tenant fails to maintain any sign, awning, canopy, decoration, lettering or advertising, Landlord may do so and Tenant shall reimburse Landlord for such cost plus a twenty percent (20%) overhead fee. If, without Landlord's prior written consent, Tenant installs any sign, awning, canopy, decoration, lettering or advertising, Landlord may have Tenant's sign, awning, canopy, decoration, lettering or advertising removed and stored at Tenant's expense. The removal and storage costs shall bear interest until Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -7- Shops Lease / Inverness Management paid at the Interest Rate. Landlord reserves the right to revise the Sign Criteria, at any time as a result of any governmental requirement or Landlord's renovation of the Premises, the Building or the Shopping Center.
Within ninety (90) days of Landlord's request, Tenant shall remove Tenant's existing sign, patch the fascia, and install a new sign, at Tenant's sole cost and expense, in accordance with Landlord's then Sign Criteria.
Upon the expiration or earlier termination of this Lease, Tenant shall remove Tenant's signs and repair any damage resulting from the installation or removal thereof.
Hazardous Materiais. Except for ordinary and general office supplies, such as copier toner, liquid paper, glue, ink, common household cleaning materials and common kitchen materials, charcoal grills and high pressure burners (some or all of which may constitute "Hazardous Materials" as defined in this Lease), Tenant agrees not to cause or allow any Hazardous Materials to be brought upon, stored, used, handled, generated, released or disposed of on, in, under or about the Premises, the Building, the Common Areas or any other portion of the Shopping Center by Tenant, its agents, employees, subtenants, assignees, licensees, contractors or invitees (collectively, "Tenant's Parties"), without the prior written consent of Landlord, which consent Landlord may withhold in its sole and absolute discretion. Upon the expiration or earlier termination of this Lease, Tenant agrees to promptly remove from the Premises, the Building and the Shopping Center, at its sole cost and expense, any and all Hazardous Materials, including any equipment or systems containing Hazardous Materials which are installed, brought upon, stored, used, generated or released upon, in, under or about the Premises, the Building and/or the Shopping Center or any portion thereof by Tenant or any of Tenant's Parties. To the fullest extent permitted by Applicable Law, Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord and Landlord's partners, officers, directors, employees, agents, successors and assigns (collectively, "Landlord Indemnified Parties") from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean-up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees and court costs) which arise or result from the presence of Hazardous Materials on, in, under or about the Premises, the Building or any other portion of the Shopping Center and which are caused or allowed by Tenant or any of Tenant's Parties. Tenant agrees to promptly notify Landlord of any release of Hazardous Materials in the Premises, the Building or any other portion of the Shopping Center which Tenant becomes aware of during the Term of this Lease, whether caused by Tenant or any other persons or entities. In the event of any release of Hazardous Materials caused allowed by Tenant or any of Tenant's Parties, Landlord shall have the right, but not the obligation, to cause Tenant to immediately take all steps Landlord deems necessary or appropriate to remediate such release and prevent any similar future release to the satisfaction of Landlord and Landlord's mortgagee(s). At all times during the Term of this Lease, Landlord will have the right, but not the obligation, to enter upon the Premises to inspect, investigate, sample and/or monitor the Premises to determine if Tenant is in compliance with the terms of this Lease regarding Hazardous Materials. As used in this Lease, the term "Hazardous Materials" shall mean and include any hazardous or toxic materials, substances or wastes as now or hereafter designated under any Applicable Law, statute, ordinance, rule, regulation, order or ruling of any agency of the State, the United States Government or any local governmental
hydrocarbons and petroleum based products, urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs"), and freon and other chlorofluorocarbons. The provisions of this Section 7.5 will survive the expiration or earlier termination of this Lease.
7.6 Prohibited and Exclusive Uses. Without limiting in any way the restriction in this Lease that the Premises be used only for the Permitted Use specified in Section 1.11 above, in no event shall the Premises be used for any prohibited or restricted uses set forth in Exhibit "' attached hereto or for any exclusive use granted by Landlord to other tenants of the Shopping Center prior to or subsequent to the date of this Lease, including those currently existing exclusive uses set forth in Exhibit "" attached hereto.
Refuse and Sewage. Tenant agrees not to keep any trash, garbage, waste or other refuse on the Premises except in sanitary containers and agrees to regularly and frequently remove same from the Premises. Tenant shall keep all containers or other equipment used for storage of such materials in a clean and sanitary condition, including the regular cleaning and deodorizing of all exterior trash and garbage areas and containers exclusively serving the Premises. Tenant shall properly dispose of all sanitary sewage and shall not use the sewage disposal system for the disposal of anything except sanitary sewage. sewage disposal system free of all obstructions and in good operating condition. If the volume of Tenant's trash becomes excessive in Landlord's judgment, Landlord shall have the right to charge Tenant for additional trash disposal services and/or to require that Tenant contract directly for additional trash disposal services at Tenant's sole cost and expense.
7.8 Cannabis. Tenant shall not use the Premises or any portion of the Shopping Center for the allow or suffer, any of Tenant's officers, employees, agents, servants, licensees, subtenants, concessionaires, contractors and invitees to bring any Cannabis onto the Premises, the Building or any portion of the Shopping Center. Without limiting the foregoing, the prohibitions in this paragraph shall apply to all Cannabis, whether such Cannabis is legal for any purpose whatsoever under state or federal law or both. Notwithstanding anything to the contrary, any failure by Tenant to comply with each of the terms, covenants, conditions and provisions of this Section shall automatically and without the requirement of any notice be a default that is not Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -8- Shops Lease / Inverness Management subject to cure, and Tenant agrees that upon the occurrence of any such default, Landlord may elect, in its sole discretion, to exercise all of its rights and remedies under this Lease, at law or in equity with respect to such default.
8. PAYMENTS AND NOTICES. All rent and other sums payable by Tenant to Landlord hereunder shall be paid to Landlord at the address designated in Section 1.2, or to such other persons and/or at such other places as Landlord may hereafter designate in writing. Any notice required or permitted to be given hereunder must be in writing and may be given by personal delivery (including delivery by nationally recognized overnight courier or express mailing service), facsimile transmission, or by registered or certified mail, postage prepaid, return receipt requested, addressed to Tenant at the addresses) designated in Section 1.4, or to Landlord at the address(es) designated in Section 1.2. Either party may, by written notice to the other, specify a different address for notice purposes.
9. BROKERS. Tenant and Landlord represent that neither has not had any dealings with any real estate broker, finder or intermediary with respect to this Lease. Each party hereto shall indemnify and hold harmless the other party hereto from and against any and all losses, damages, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys' fees and related costs) resulting from any claims that may be asserted against such other party by any real estate broker, finder or intermediary arising from any act of the indemnifying party in connection with this Lease.
10. SURRENDER; HOLDING OVER.
10.1 Surrender of Premises. Upon the expiration or sooner termination of this Lease, Tenant shall surrender all keys for the Premises to Landlord, and Tenant shall deliver exclusive possession of the Premises to Landlord broom clean and in first-class condition and repair, reasonable wear and tear excepted (and casualty damage excepted if this Lease is terminated as a result thereof pursuant to Section 19), with all of Tenant's personal property (and those items, if any, of Tenant Improvements and Tenant Changes identified by Landlord pursuant to Section 13.2 below) removed therefrom and all damage caused by such removal repaired, as required pursuant to Sections 13.2 and 13.3 below. If, for any reason, Tenant fails to surrender the Premises on the expiration or earlier termination of this Lease (including upon the expiration of any subsequent month-to-month tenancy consented to by Landlord pursuant to Section 10.2 below), with such removal and repair obligations completed, then, in addition to the provisions of Section 10.3 below and Landlord's rights and remedies under Section 13.4 and the other provisions of this Lease, Tenant shall indemnify, protect, defend (by counsel reasonably approved in writing by Landlord) and hold Landlord harmless from and against any and all claims, judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys' fees and court costs) resulting from such failure to surrender, including, without limitation, any claim made by any succeeding tenant based thereon. The foregoing indemnity shall survive the expiration or earlier termination of this Lease.
10.2 Holding Over. If Tenant holds over after the expiration or earlier termination of the Lease Term, Tenant shall become a tenant at sufferance only, upon the terms and conditions set forth in this Lease so far as applicable (including Tenant's obligation to pay all Common Area Expenses and any other Additional Rent under this Lease), but at a Monthly Basic Rent equal to the greater of: (a) one hundred fifty percent (150%) of the Monthly Basic Rent applicable to the Premises immediately prior to the date of such expiration or earlier termination; or (b) one hundred fifty percent (150%) of the prevailing market rate excluding any rental or other concessions (as reasonably determined by Landlord) for the Premises in effect on the date of such expiration or earlier termination. Nothing contained herein, including without limitation, any acceptance by Landlord of rent after such expiration or earlier termination shall (i) be construed as granting Tenant any right to holdover at the expiration or earlier termination of this Lease, or (ii) constitute a consent to a hold over hereunder or result in an extension of this Lease. Tenant shall pay an entire month's Monthly Basic Rent calculated in accordance with this Section 10.2 for any portion of a month it holds over and remains in possession of the Premises pursuant to this Section 10.2.
10.3 No Effect on Landlord's Rights. The foregoing provisions of this Section 10 are in addition to, and do not affect, Landlord's right of re-entry or any other rights of Landlord under this Lease or otherwise provided at law or in equity.
1l. _ TAXES.
11.1 Real Property Taxes.
11.1.1 Tenant agrees to pay Tenant's Share of all general and special real property taxes, assessments (including, without limitation, change in ownership taxes or assessments), liens, bond obligations, license fees or taxes and any similar impositions in-lieu of other impositions now or previously within the definition of real property taxes or assessments (collectively "Real Property Taxes") which may be levied or assessed by any lawful authority against the Shopping Center applicable to the period from the Commencemen Date until the expiration or sooner termination of this Lease. If and to the extent Landlord elects to contes (cither formally or informally through negotiations) any Real Property Taxes levied or assessed against the Shopping Center during the Term, the Real Property Taxes shall be deemed to include all costs and expenses Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -9- Shops Lease / Inverness Management incurred by Landlord in so contesting such Real Property Taxes. Tenant's Share shall be apportioned according to the Floor Area of the Premises as it relates to the total Floor Area of the Building or buildings located within the Shopping Center (including the Premises). Notwithstanding the foregoing provisions, if the Real Property Taxes are not levied and assessed against the entire Shopping Center by means of a single tax bill (i.e., if the Shopping Center is separated into two (2) or more separate tax parcels for purposes of levying and assessing the Real Property Taxes), then, at Landlord's option, Tenant shall pay Tenant's pro rata share of all Real Property Taxes which may be levied or assessed by any lawful authority against the land and improvements of the separate tax parcel on which the Building containing the Premises is located. Tenant's pro rata share under such circumstances shall be apportioned according to the Floor Area of the Premises as it relates to the total Floor Area of the Building or buildings situated within the separate tax parcel in which the Premises is
11.1.2 All Real Property Taxes for the tax year in which the Commencement Date occurs and for the tax year in which this Lease terminates shall be apportioned and adjusted so that Tenant shall not be responsible for any Real Property Taxes for a period of time occurring prior to the Commencement Date or subsequent to the expiration of the Term.
11.1.3 Notwithstanding anything to the contrary contained herein, Tenant's obligation to pay Real Property Taxes includes the special tax assessed through a community facilities district to which the Shopping Center is subject. Landlord hereby discloses and Tenant acknowledges that Landlord and the Community Redevelopment Agency of the City ("Agency') are parties to an Owner Participation Agreement ("OPA") pursuant to which Landlord conveyed to the City certain portions of Landlord's property adjoining the Shopping Center for roadway improvements. In consideration for such conveyance and the performance by Landlord of any other obligation under the OPA, the Agency agreed to compensate Landlord through payment of any special taxes imposed by the community facilities district which was formed to finance such roadway improvements. Any and all of such payment by the Agency (whether advanced directly to Landlord by the Agency or credited against a component of Real Property Taxes assessed against the Shopping Center) is analogous to an eminent domain award paid in installments to Landlord. Accordingly, and notwithstanding anything to the contrary contained herein, no portion of such payment by the Agency to Landlord shall be credited against or reduce Tenant's obligation for the amount of Taxes assessed during the Term.
11.1.4 The amount to be paid pursuant to the provisions of this Section 11.1 shall be paid monthly in advance as part of Common Area Expenses as estimated by Landlord based on the most recent tax bills and estimates of reappraised values (if reappraisal is to occur), commencing with the month (or partial month on a prorated basis if such be the case) that the Commencement Date occurs. The initial estimated monthly charge for Tenant's pro rata share of Real Property Taxes is included in the Monthly Common Area Expense Payment as provided in Section 6.
11.1.5 If at any time during the Term under the laws of the United States, or the state, county, municipality, or any political subdivision thereof in which the Shopping Center is located, a tax or excise on rent or any other tax however described is levied or assessed by any such political body against Landlord on account of rent payable to Landlord hereunder or any tax based on or measured by expenditures made by Tenant on behalf of Landlord, such tax or excise shall be considered "Real Property Taxes" for purposes of this Section 11.1, and shall be payable in full by Tenant. At Landlord's option, such taxes or excises shall be payable monthly in advance on an estimated basis as provided in this Section 11.1 or shall be payable within ten (10) days after Tenant's receipt of the tax bill therefor from Landlord.
11.2 Personal Property Taxes. Tenant shall be liable for, and shall pay before delinquency, all taxes and assessments (real and personal) levied against (a) any personal property or trade fixtures placed by Tenant in or about the Premises (including any increase in the assessed value of the Premises based upon the value of any such personal property or trade fixtures); and (b) any Tenant Improvements or alterations in the Premises (whether installed and/or paid for by Landlord or Tenant). If any such taxes or assessments are levied against Landlord or Landlord's property, Landlord may, after written notice to Tenant (and under proper protest if requested by Tenant) pay such taxes and assessments, and Tenant shall reimburse Landlord therefor within ten (10) business days after demand by Landlord; provided, however, Tenant, at its sole cost and expense, shall have the right, with Landlord's cooperation, to bring suit in any court of competent jurisdiction to recover the amount of any such taxes and assessments so paid under protest.
12. POSSESSION; CONDITION OF PREMISES; REPAIRS.
Delivery of Possession. Landlord will deliver possession of the Premises to Tenant in its current (as of the date of this Lease) "AS IS" condition with all faults and without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements for the Premises. If Landlord cannot deliver possession of the Premises to Tenant by the estimated Turnover Date, this Lease will not be void or voidable, nor will Landlord be liable to Tenant for any loss or damage resulting from such delay. If the delay in delivery of possession is caused by any Tenant Delay (including delays caused by Tenant's failure to supply the items referred to in the following sentence), then the Term and Tenant's obligation to pay rent will commence as of the date the Commencement Date would have occurred, but for such Tenant Delay. Notwithstanding the foregoing, Landlord will not be obligated to Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -10- Shops Lease / Inverness Management deliver possession of the Premises to Tenant (but Tenant will be liable for rent if Landlord can otherwise deliver the Premises to Tenant) until all of the Delivery Conditions are satisfied in full.
Condition of Premises. Landlord is delivering the Premises to Tenant in its current (as of the date of this Lease) "AS IS" condition with all faults and without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements for the Premises. Tenant does not rely on, and Landlord does not make, any express or implied representations or warranties as to any matters regarding the Shopping Center or the Premises, including without limitation, any characteristics of the Premises or improvements thereon, the suitability of the Premises for the Permitted Use, the likelihood of deriving business from the Shopping Center, the economic feasibility of the Tenant's business, or any other matter. Tenant has satisfied itself as to such suitability and other pertinent matters by Tenant's own inquiries and tests into all matters relevant in determining whether or not to enter into this Lease.
Tenant acknowledges that, except as otherwise expressly set forth in this Lease, neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the Premises, the Building or the Shopping Center or their condition, or with respect to the suitability thereof for the conduct of Tenant's business. taking of possession of the Premises by Tenant shall conclusively establish that the Shopping Center, the Building, the Premises and the Common Areas were at such time complete and in good, sanitary and satisfactory condition and repair and without any obligation on Landlord's part to make any alterations, upgrades or improvements thereto.
Landlord's Repair Obligations. Landlord shall, as part of the Common Area Expenses, repair and maintain (a) the Building shell and other structural portions of the Building (including the roof, exterior walls and foundations), (b) to the extent applicable, any basic plumbing, heating, ventilating, air conditioning ("HVAC") (if Landlord elects, in its sole discretion, to maintain such HVAC), sprinkler and electrical systems within the Building core (but not any conduits or connections thereto or distribution systems thereof within the Premises or any other tenant's premises), and (c) the Common Areas of the Shopping Center (including without limitation, Common Utilities Facilities); provided, however, to the extent such maintenance or repairs are required as a result of any act, neglect, fault or omission of Tenant or any of Tenant's agents, employees, contractors, licensees or invitees, Tenant shall pay to Landlord, as Additional Rent, the costs of such maintenance and repairs. Landlord shall not be liable to Tenant for failure to perform any such repairs or maintenance, unless Landlord shall fail to commence such repairs within thirty (30) days following written notice from Tenant to Landlord of the need for such repairs. Without limiting the foregoing, Tenant waives the right to make repairs at Landlord's expense under any law, statute or ordinance now or hereafter in effect (including the provisions of California Civil Code Section 1942 and any successive sections or statutes of a similar nature).
Tenant's Repair Obligations. Except for Landlord's obligations specifically set forth in Sections 12.2, 12.3, 19.1 and 20.2 hereof, Tenant shall at all times and at Tenant's sole cost and expense, keep, maintain, clean, repair and preserve the Premises and all parts thereof including, without limitation, all Tenant Improvements, Tenant Changes, utility meters, pipes and conduits within the Premises walls, all heatung, ventilating and air conditioning systems located within and/or exclusively serving the Premises (including without limitation any conduits or connections thereto or distribution systems thereof) if Landlord does not elect (in its sole discretion) to maintain the HVAC pursuant to Section 12.3 above, all fixtures, furniture and equipment, Tenant's storefront, Tenant's signs, locks, closing devices, security devices, windows, window sashes, casements and frames, floors and floor coverings, shelving, restrooms, if any, and any alterations, additions and other property located within the Premises in first-class condition and repair, reasonable wear and tear excepted. Tenant shall replace, at its expense, any and all plate and other glass in and about the Premises which is damaged or broken from any cause whatsoever except due to the gross negligence or willful misconduct of Landlord, its agents or employees. Such maintenance and repairs shall be performed with due diligence, lien-free and in a first-class and workmanlike manner, by licensed contractors) which are selected by Tenant and approved by Landlord, which approval Landlord shall not unreasonably withhold or delay.
Except as otherwise expressly provided in this Lease, Landlord shall have no obligation to alter, remodel,
13. ALTERATIONS.
13.1 Tenant Changes; Conditions.
13.1.1 Tenant shall not (i) attach or install any business or trade fixtures in or to the Premises or (ii) make any alterations, additions, improvements or decorations to the Premises (all such business/trade fixtures, alterations, additions, improvements and decorations being collectively, "Tenant Changes," and each individually, as a "Tenant Change") unless Tenant first obtains Landlord's prior written approval thereof, which approval Landlord shall not unreasonably withhold. Notwithstanding the foregoing, Landlord's prior approval shall not be required for any Tenant Change which satisfies the following conditions (hereinafter a "Pre-Approved Change"): (i) the costs of such Tenant Change does not exceed Five Hundred Dollars ($500.00) individually; (ii) the costs of such Tenant Change when aggregated with the costs of all other Tenant Changes made by Tenant during the Term of this Lease do not exceed One Thousand Five Hundred Dollars ($1,500); (iii) Tenant delivers to Landlord final plans, specifications and working drawings for such Tenant Change, and a copy of any building permits) required for any such Tenant Changes), at least ten (10) days Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -11- Shops Lease / Inverness Management prior to commencement of the work thereof; (iv) Tenant and such Tenant Change otherwise satisfy all other conditions set forth in this Section 13.1; and (v) the Tenant Change does not affect the roof or the structural the Premises.
13.1.2 All Tenant Changes shall be performed: (i) in accordance with the approved plans, specifications and working drawings; (ii) lien-free and in a first-class and workmanlike manner; (iii) in compliance with all Applicable Laws (including, without limitation, the provisions of Title Ill of the Americans with Disabilities Act of 1990); (iv) in such a manner so as not to unreasonably interfere with the occupancy and/or operations of any other tenant in the Building or any other building located within the Shopping Center, nor impose any additional expense upon nor delay Landlord in the maintenance and operation of the Building or any other part of the Shopping Center; and (v) at such times, in such manner and subject to such rules and regulations as Landlord may from time to time reasonably designate.
13.1.3 After Landlord has approved the Tenant Changes and the plans, specifications and working drawings therefor (or is deemed to have approved the Pre-Approved Changes as set forth in Section 13.1.1 above), Tenant shall: (i) enter into an agreement for the performance of such Tenant Changes with such contractors and subcontractors selected by Tenant and approved by Landlord, which approval shall not be unreasonably withheld or delayed; (ii) before proceeding with any Tenant Change (including any Pre- Approved Change), provide Landlord with ten (10) days' prior written notice thereof; (iii) obtain all necessary governmental permits and approvals for the commencement and completion of such Tenant Change; and (iV) at Landlord's request, obtain a completion and lien indemnity bond, or other surety, satisfactory to Landlord for such Tenant Change. Landlord's approval of any contractors) and subcontractor(s) of Tenant shall not release Tenant or any such contractors) and/or subcontractors) from any liability for any conduct or acts of such contractor(s) and/or subcontractor(s).
13.1.4 Tenant shall pay to Landlord, as Additional Rent, the reasonable costs of Landlord's engineers and other consultants (but not Landlord's on-site management personnel) for review of all plans, specifications and working drawings for the Tenant Changes, within ten (10) business days after Tenant's receipt of invoices either from Landlord or such consultants. In addition to such costs, Tenant shall pay to Landlord, within ten (10) business days after completion of any Tenant Change, the actual, reasonable costs incurred by Landlord for services rendered by Landlord's management personnel and engineers to coordinate and/or supervise any of the Tenant Changes to the extent such services are provided in excess of or after the normal on-site hours of such engineers and management personnel.
13.1.5 Throughout the performance of any and all Tenant Changes, Tenant shall obtain, or cause its contractors to obtain, workers compensation insurance and commercial general liability insurance in compliance with the provisions of Section 21 of this Lease.
13.2 Removal of Tenant Changes and Tenant Improvements. All Tenant Changes and the initial Tenant Improvements in the Premises (whether installed or paid for by Landlord or Tenant), shall become the property of Landlord and shall remain upon and be surrendered with the Premises at the end of the Term of this Lease; provided, however, Landlord may, by written notice delivered to Tenant at any time prior to the date which is thirty (30) days before the expiration of the Lease Term (or immediately upon any sooner termination of this Lease) identify those items of the initial Tenant Improvements and Tenant Changes which Landlord shall require Tenant to remove at the end of the Term of this Lease. If Landlord requires Tenant to remove any such items as described above, Tenant shall, at its sole cost, remove the identified items on or before the expiration or sooner termination of this Lease and repair any damage to the Premises caused by such removal (or, at Landlord's option, shall pay to Landlord all of Landlord's costs of such removal and repair).
13.3 Removal of Personal Property. Subject to Section 12.2 above, all articles of personal property owned by Tenant or installed by Tenant at its expense in the Premises (including furniture and movable partitions) shall be, and remain, the property of Tenant, and shall be removed by Tenant from the Premises, at Tenant's sole cost and expense, on or before the expiration or sooner termination of this Lease.
Tenant shall repair any damage caused by such removal.
Tenant's Failure to Remove. If Tenant fails to remove by the expiration or sooner termination of this Lease, all of its personal property, or any items of Tenant Improvements or Tenant Changes identified by Landlord for removal pursuant to Section 13.2 above, Landlord may, (without liability to Tenant for loss thereof), at Tenant's sole cost and in addition to Landlord's other rights and remedies under this Lease, at law or in equity: (a) remove and store such items in accordance with Applicable Law; and/or (b) upon ten (10)days' prior notice to Tenant, sell all or any such items at private or public sale for such price as Landlord may obtain as permitted under Applicable Law. Landlord shall apply the proceeds of any such sale to any amounts due to Landlord under this Lease from Tenant (including Landlord's attorneys' fees and other costs incurred in the removal, storage and/or sale of such items), with any remainder to be paid to Tenant.
14. LIENS. Tenant shall not permit any mechanic's, materialmen's or other liens to be filed against all or any part of the Shopping Center, the Building or the Premises, nor against Tenant's leasehold interest in the Premises, by reason of or in connection with any repairs, alterations, improvements or other work contracted Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -12- Shops Lease / Inverness Management for or undertaken by Tenant or any other act or omission of Tenant or Tenant's subtenants or their respective agents, employees, contractors, licensees or invitees. Tenant shall, at Landlord's request, provide Landlord with enforceable, conditional and final lien releases (and other reasonable evidence reasonably requested by Landlord to demonstrate protection from liens) from all persons furnishing labor and/or materials with respect to the Premises. Landlord shall have the right at all reasonable times to post on the Premises and record any notices of non-responsibility which it deems necessary for protection from such liens. If any such liens are filed, Tenant shall, at its sole cost, immediately cause such lien to be released of record or bonded so that it no longer affects title to the Shopping Center, the Building or the Premises. If Tenant fails to cause such lien to be so released or bonded within twenty (20) days after filing thereof, Landlord may, without waiving its rights and remedies based on such breach, and without releasing Tenant from any of its obligations, cause such lien to be released by any means it shall deem proper, including payment in satisfaction of the claim giving rise to such lien. Tenant shall pay to Landlord within five (5) days after receipt of invoice from Landlord, any sum paid by Landlord to remove such liens, together with interest at the Interest Rate trom the cate of such payment by Landlord.
15. ASSIGNMENT AND SUBLETTING.
15.1 Restriction on Transfer. Tenant will not assign or encumber this Lease in whole or in part, nor sublet all or any part of the Premises (each a "Transfer"), without the prior written consent of Landlord, which consent Landlord will not unreasonably withhold, except as provided in this Section 15. Without in any way limiting Landlord's right to reasonably refuse to give consent, Landlord may withhold its consent to any
15.1.1 The quality of the services of the proposed assignee, subtenant or transferee (each a "Transferee") is not equal to that of the Tenant;
15.1.2 The financial strength of the proposed Transferee, both in terms of net worth and in terms of reasonably anticipated cash flow over the Lease Term, is materially less than Tenant's financial strength at the time this Lease was signed or at the time of such Transfer, whichever is greater, or is insufficient, based on generally accepted industry standards, to capitalize the business to be conducted in the Premises;
15.1.4 The business of the proposed Transferee is substantially similar to the business of another tenant then operating in the Shopping Center, conflicts with the permitted uses set forth in this Lease, or would violate the exclusive use rights of another tenant of the Shopping Center (or a prospective tenant of the Shopping Center with which Landlord is then negotiating);
15.1.5 The business of the proposed Transferee is not, in Landlord's reasonable judgment, a business that is likely to attract patrons to the Shopping Center, based on the demographics and clientele of the Shopping Center, or the business or reputation of the proposed Transferee is inconsistent with the image of the Shopping Center;
15.1.6 [Intentionally Deleted];
15.1.7 The proposed Transferee will create a vacancy elsewhere in the Shopping Center;
15.1.8 The proposed Transferee is a person with whom Landlord is, or recently has been, within the past three (3) months, negotiating to lease space in property owned by Landlord, including the Shopping Center;
15.1.9 Tenant is in default under the Lease, or has defaulted hereunder on more than three (3) occasions during the twelve (12) months preceding the request by Tenant;
15.1.10 The proposed business plan (or past business history) of the proposed Transferee indicates a possible likelihood of detriment to any portion of the Shopping Center or to the Rent to be received by Landlord hereunder; and/or
15.1.11 The proposed Transferee will operate under a trade name other than that stated in this Lease.
The consent by Landlord to any Transfer shall not constitute a waiver of the necessity for obtaining Landlord's consent to any subsequent Transfer. This probibition against Transfer shall be construed to include a prohibition against any assignment or subletting by operation of law. If Tenant is a corporation, limited liability company or partnership, or is an unincorporated association or partnership, the transfer, assignment 01 hypothecation of any stock or interest in such entity in the aggregate in excess of forty nine percent (49%) shall be deemed an assignment within the meaning and provisions of this Section 15. Notwithstanding any contrary provision of this Lease, if Tenant or any proposed Transferee claims that Landlord has unreasonably withheld Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -13- Shops Lease / Inverness Management or delayed its consent to a proposed Transfer or otherwise has breached its obligations under this Section 15, Tenant's and such Transferee's only remedy shall be to seek a declaratory judgment and/or injunctive relief, and Tenant, on behalf of itself and, to the extent permitted by Applicable Law, such proposed Transferee waives all other remedies against Landlord, including, without limitation, the right to seek monetary damages or to terminate this Lease.
Transfer Notice. If Tenant desires to effect a Transfer, then at least thirty (30) days prior to the date when Tenant desires the Transfer to be effective (the "Transfer Date"), Tenant shall give Landlord a notice (the "Transfer Notice"), stating the name, address and business of the proposed Transferee, reasonable information (including references) concerning the character, ownership, and financial condition and business experience of the proposed Transferee, the proposed Transfer Date, any ownership or commercial relationship between Tenant and the proposed Transferee, and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord may reasonably require.
15.3 Landlord's Options. Within fifteen (15) days after Landlord receives any Transfer Notice, and any additional information requested by Landlord concerning the proposed Transferee's financial responsibility, Landlord will notify Tenant of its election to do one of the following: (i) consent to the proposed Transfer subject to such reasonable conditions as Landlord may impose in providing such consent; (ii) refuse such consent, which refusal shall be on reasonable grounds; or (iii) terminate this Lease and recapture the Premises for reletting by Landlord.
15.4 Additional Conditions. A condition to Landlord's consent to any Transfer of this Lease will be the delivery to Landlord of a true copy of the fully executed instrument of assignment, sublease, transfer or hypothecation, in form and substance reasonably satisfactory to Landlord. Tenant agrees to pay to Landlord, as Additional Rent, all sums and other consideration payable to and for the benefit of Tenant by the assignee or sublessee in excess of the rent payable under this Lease for the same period and portion of the Premises. In calculating excess rent or other consideration which may be payable to Landlord under this Section, Tenant will be entitled to deduct commercially reasonable third party brokerage commissions and attorneys' fees and other amounts reasonably and actually expended by Tenant in connection with such assignment or subletting if acceptable written evidence of such expenditures is provided to Landlord. No Transfer will release Tenant of Tenant's obligations under this Lease or alter the primary liability of Tenant to pay the rent and to perform all other obligations to be performed by Tenant hereunder. If this Lease is assigned by Tenant, or if the Premises or any part thereof are sublet or occupied by any person or entity other than Tenant, Landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver on the part of Landlord, or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained unless expressly made in writing by Landlord. Consent by Landlord to one Transfer will not be deemed consent to any subsequent Transfer. In the event of default by any Transferee of Tenant or any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such Transferee or successor.
16. ENTRY BY LANDLORD. Landlord and its employees and agents shall at all reasonable times have the right to enter the Premises to inspect the same, to supply any service required to be provided by Landlord to Tenant under this Lease, to exhibit the Premises to prospective lenders or purchasers (or during the last year of the Term, to prospective tenants), to post notices of non-responsibility, and/or to alter, improve or repair the Premises or any other portion of the Building, all without being deemed guilty of or liable for any breach of Landlord's covenant of quiet enjoyment or any eviction of Tenant, and without abatement of rent. In exercising such entry rights, Landlord shall endeavor to minimize, as reasonably practicable, the interference with Tenant's business, and shall provide Tenant with reasonable advance notice of such entry (except in emergency situations). Landlord shall have the means which Landlord may deem proper to open Tenant's doors in an emergency in order to obtain entry to the Premises. Any entry to the Premises obtained by Landlord by any of said means or otherwise shall not, under any circumstances, be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof, or grounds for any abatement or reduction of rent and Landlord shall not have any liability to Tenant for any damages or losses on account of any such entry by Landlord except, subject to the provisions of Section 23.1, to the extent of Landlord's gross negligence or willful misconduct.
17. UTILITIES AND SERVICES. To the extent such items are separately metered to the Premises, Tenant shall be solely responsible for contracting with the appropriate utility companies and shall promptly pay all charges (including hook-up fees) for heat, air conditioning, water, gas, electricity or any other utility used, consumed or provided in, furnished to or attributable to the Premises at the rates charged by the supplying utility companies and/or Landlord. If not separately metered, Tenant shall pay Landlord monthly Tenant's pro rata Share of the monthly charges for such utilities based upon Tenant's Share if utility usage is ratable among all tenants of the Building based upon square footage occupied by each tenant, or based upon actual utility usage by the tenants of the Building as reasonably determined by Landlord if such usage is not ratable based upon square footage occupied. Should Landlord elect to supply any or all of such utilities, Tenant agrees to purchase and pay for the same as Additional Rent as apportioned by Landlord. The rate to be charged by Landlord to Tenant shall not exceed the rate charged to Landlord by any supplying utility. Tenant shall Union Landing Shopping Center/
-14- Shops Lease / Inverness Management
377172.00006/4919-0168-5109.2
reimburse Landlord within ten (10) days of billing for fixture charges and/or water tariffs, if applicable, which are charged to Landlord by local utility companies. Landlord will notify Tenant of this charge as soon as it becomes known. This charge will increase or decrease with current charges being levied against Landiord, the Premises or the Building by the local utility company, and will be due as Additional Rent. If Tenant's business operations shall require additional after hours Common Area lighting, Tenant shall pay the incremental cost of such additional after hours lighting on a per hour/per light basis for the Common Area lighting zone within which the Premises is located, on a pro rata basis with all other tenants within such lighting zone which remain open during all or a part of Tenant's after hours operation period(s). If Tenant's business operations shall require extraordinary water consumption as compared to other tenants of the Building, Landlord reserves the right in its discretion to install a separate water sub-meter for the Premises at Tenant's cost, and Tenant shall thereafter pay for its water usage based upon such sub-meter readings. In no event shall Landlord be liable for any interruption or failure in the supply of any such utility services to Tenant. Landlord shall have the right at any time and from time-to-time during the Lease Term to contract for service from any company or companies providing electricity service ("Service Provider") to the Shopping Center. Tenant shall cooperate with Landlord and the Service Provider at all times and, as reasonably necessary upon prior notice to Tenant, shall allow Landlord and Service Provider reasonable access to the Building's electric lines, feeders, risers, wiring, and any other machinery within the Premises. Landlord shall in no way be liable or responsible for any loss, damage, or expense that Tenant may sustain or incur by reason of any change, failure, interference, disruption, or defect in the supply or character of the electric energy furnished to the Premises, or if the quantity or character of the electric energy supplied by the Service Provider is no longer available or suitable for Tenant's requirements, no such change, failure, defect, unavailability, or unsuitability shall constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under the Lease. Tenant shall also be responsible for and shall pay Landlord, as Additional Rent, for Tenant's pro rata share of the costs to maintain, repair and replace any grease traps serving the Building if Tenant's use requires use of such grease trap(s).
INDEMNIFICATION AND EXCULPATION.
Tenant's Assumption of Risk and Waiver. Except to the extent such matter is not covered by the insurance required to be maintained by Tenant under this Lease and such matter is attributable to the gross negligence or willful misconduct of Landlord, Landlord shall not be liable to Tenant, Tenant's employees, agents or invitees for: (i) any damage to property of Tenant, or of others, located in, on or about the Premises, (ii) the loss of or damage to any property of Tenant or of others by theft or otherwise, (iii) any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain or leaks from any part of the Premises or from the pipes, appliance of plumbing works or from the roof, street or subsurface or from any other places or by dampness or by any other cause of whatsoever nature, or (iv) any such damage caused by other tenants or persons in the Premises, occupants of adjacent property of the Shopping Center, or the public, or caused by operations in construction of any private, public or quasi-public work. Landlord shall in no event be liable for any consequential damages or loss of business or profits and Tenant hereby waives any and all claims for any such damage. All property of Tenant kept or stored at, on or in the Premises shall be so kept or stored at the sole risk of Tenant and Tenant shall hold Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant's insurance carriers, unless such damage shall be caused by the gross negligence or willful misconduct of Landlord. Landlord or its agents shall not be liable for interference with the light or other intangible rights.
Tenant's Indemnification of Landlord. Tenant shall be liable for, and shall indemnity, defend, protect and hold Landlord and each of the Landlord Indemnified Parties (as defined in Section 7.5 hereof) harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including attorneys' fees and court costs (collectively, "Indemnified Claims"), arising or resulting from (a) any act or omission of Tenant or any of Tenant's Parties (as defined in Section 7.5 hereof); (b) the use of the Premises and Common Areas and conduct of Tenant's business by Tenant or any of Tenant's Parties, or any other activity, work or thing done, permitted or suffered by Tenant or any of Tenant's Parties, in or about the Premises, the Building or elsewhere on the Shopping Center; and/or (c) any default by Tenant of any obligations on Tenant's part to be performed under the terms of this Lease. In case any action or proceeding is brought against Landlord or any Landlord Indemnified Parties by reason of any such Indemnified Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel approved in writing by Landlord, which approval shall not be unreasonably withheld.
18.3 Survival; No Release of Insurers; No Limitation. Tenant's indemnification obligation under Section 18.2, shall survive the expiration or earlier termination of this Lease. Tenant's covenants, agreements and indemnification in Sections 18.1 and 18.2 above, are not intended to and shall not relieve any insurance carrier of its obligations under policies required to be carried by Tenant, pursuant to the provisions of this Lease. Tenant's obligations pursuant to this Section 18 shall not be limited by the amounts of any applicable insurance.
19. DAMAGE OR DESTRUCTION.
19.1 Landlord's Rights and Obligations. If the Premises are damaged by fire or other casualty to an extent not exceeding twenty five percent (25%) of the full replacement cost thereof, and Landlord's Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -15- Shops Lease / Inverness Management contractor estimates in a writing delivered to the parties that the damage thereto is such that the Premises may be repaired, reconstructed or restored to substantially its condition immediately prior to such damage within one hundred twenty (120) days from the date of such casualty, and the casualty is one that is covered (or is required to be covered) by Landlord's insurance and Landlord will receive insurance proceeds sufficient to cover the costs of such repairs, reconstruction and restoration (including proceeds from Tenant and/or Tenant's insurance which Tenant is required to deliver to Landlord pursuant to Section 19.2 below), then Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration and this Lease shall continue in full force and effect. If, however, the Premises are damaged to an extent exceeding twenty five percent (25%) of the full replacement cost thereof, or Landlord's contractor estimates that such work of repair, reconstruction and restoration will require longer than 120 days to complete, or Landlord will not receive insurance proceeds (and/or proceeds from Tenant, as applicable) sufficient to cover the costs of such repairs, reconstruction and restoration, or if more than one third of the buildings in the Shopping Center are damaged or destroyed by casualty, then Landlord may elect to either:
19.1.1 repair, reconstruct and restore the portion of the Premises damaged by such casualty (including the Tenant Improvements and Tenant Changes), in which case this Lease shall continue in full force and effect; or
19.1.2 terminate this Lease effective as of the date which is thirty (30) days after Tenant's receipt of Landlord's election to so terminate.
Under any of the conditions of this Section 19.1, Landlord shall give written notice to Tenant of its intention to repair or terminate within the later of sixty (60) days after the occurrence of such casualty, or fifteen (15) days after Landlord's receipt of the estimate from Landlord's contractor. Notwithstanding any contrary provision of this Section 19, the parties hereby agree as follows: (i) the closure of the Shopping Center, the Building, the Premises, the Common Area, or any part thereof to protect public health shall not constitute a casualty for purposes of this Lease, (il) casualty covered by this Section 19 shall require that the physical or structural integrity of the Premises is degraded as a direct result of such occurrence, and (iii) a casualty under this Section 19 shall not be deemed to occur merely because Tenant is unable to productively use the Premises in the event that the physical and structural integrity of the Premises is undamaged.
19.2 any part of the Premises, Tenant shall immediately: (a) notify Landlord thereof; and (b) deliver to Landlord all insurance proceeds received by Tenant with respect to the Tenant Improvements and Tenant Changes in the Premises to the extent such items are not covered by Landlord's casualty insurance obtained by Landlord pursuant to Section 22 below (excluding proceeds for Tenant's furniture and other personal property), whether or not this Lease is terminated as permitted in this Section 19, and Tenant hereby assigns to Landlord all nights to receive such insurance proceeds. If, for any reason (including Tenant's failure to obtain insurance for the full replacement cost of any Tenant Changes which Tenant is required to insure pursuant to Sections 21.1.5 and 21.1.6 below), Tenant fails to receive insurance proceeds covering the full replacement cost of such Tenant Changes which are damaged, Tenant shall be deemed to have self insured the replacement cost of such Tenant Changes, and upon any damage or destruction thereto, Tenant shall immediately pay to Landlord the full replacement cost of such items, less any insurance proceeds actually received by Landlord from Landlord's or Tenant's insurance with respect to such items.
19.3 Abatement of Rent. If, as a result of any such damage, repair, reconstruction and/or restoration of the Premises, Tenant is prevented from using, and does not use, the Premises or any portion thereof, then the rent shall be abated or reduced, as the case may be, during the period that Tenant continues to be so prevented from using and does not use the Premises or portion thereof, in the proportion that the leasable area of the portion of the Premises that Tenant is prevented from using, and does not use, bears to the total leasable area of the Premises. Notwithstanding the foregoing to the contrary, if the damage is due to the negligence or willful misconduct of Tenant or any of Tenant's Parties, there shall be no abatement of rent.
Except for abatement of rent as provided hereinabove, Tenant shall not be entitled to any compensation or damages for loss of, or interference with, Tenant's business or use or access of all or any part of the Premises resulting from any such damage, repair, reconstruction or restoration.
19.4 Inability to Complete. Notwithstanding anything to the contrary contained in this Section 19, if Landlord is obligated or elects to repair, reconstruct and/or restore the damaged portion of the Premises pursuant to Section 19.1 above, but is delayed from completing such repair, reconstruction and/or restoration beyond the date which is six (6) months after the date estimated by Landlord's contractor for completion thereof pursuant to Section 19.1, by reason of any causes beyond the reasonable control of Landlord (including, without limitation, any events of Force Majeure as defined in Section 34.14 and delays caused by Tenant or any of Tenant's Parties), then Landlord may elect to terminate this Lease upon thirty (30) days' prior written notice to Tenant.
19.5 Damage Near End of Term. In addition to the termination rights of Landlord in Sections 19.1 and 19.4 above, both Landlord and Tenant shall have the right to terminate this Lease upon written notice to the other if any damage to the Building or Premises occurs during the last twelve (12) months of the Term of this Lease and Landlord's contractor estimates in a writing delivered to the parties that the Union Landing Shopping Centeri
377172.00006/4919-0168-5109.2 -16- Shops Lease / Inverness Management repair, reconstruction or restoration of such damage cannot be completed within the earlier of (a) the scheduled expiration date of the Lease Term, or (b) sixty (60) days after the date of such casualty.
Waiver of Termination Right. This Lease sets forth the terms and conditions upon which this Lease may terminate in the event of any damage or destruction. Accordingly, the parties hereby waive the provisions of California Civil Code Section 1932, Subsection 2, and Section 1933, Subsection 4 (and any successor statutes thereof permitting the parties to terminate this Lease as a result of any damage or destruction).
20. EMINENT DOMAIN.
20.1 Substantial Taking. Subject to the provisions of Section 20.4 below, in case the whole of the Premises, or such part thereof as shall substantially interfere with Tenant's use and occupancy of the Premises as reasonably determined by Landlord, shall be taken for any public or quasi-public purpose by any lawful power or authority by exercise of the right of appropriation, condemnation or eminent domain, or sold to prevent such taking, either party shall have the right to terminate this Lease effective as of the date possession is required to be surrendered to said authority. Notwithstanding any contrary provision of this Lease, the following governmental actions shall not constitute a taking or condemnation, either permanent or temporary:
(i) an action that requires Tenant's business or the Premises, the Building or the Shopping Center to close during the Lease Term, and (il) an action taken for the purpose of protecting public safety (e.g., to protect against acts of war, the spread of communicable diseases, or an infestation), and no such governmental actions shall entitle Tenant to any compensation from Landlord or any authority, or Rent abatement or any other remedy under this Lease.
20.2 Partial Taking; Abatement of Rent. In the event of a taking of a portion of the Premises which does not substantially interfere with the conduct of Tenant's business, then, except as otherwise provided in the immediately following sentence, neither party shall have the right to terminate this Lease and Landlord shall thereafter proceed to make a functional unit of the remaining portion of the Premises (but only to the extent Landlord receives proceeds therefor from the condemning authority), and rent shall be abated only with respect to the part of the Premises which Tenant shall be so deprived on account of such taking.
Notwithstanding the immediately preceding sentence, if any part of the Building or the Shopping Center shall be taken (whether or not such taking substantially interferes with Tenant's use of the Premises), Landlord may terminate this Lease upon thirty (30) days' prior written notice to Tenant as long as Landlord also terminates leases of all other tenants leasing comparably sized space within the Building for comparable lease terms.
Condemnation Award. Subject to the provisions of Section 20.4 below, in connection with any taking of the Premises or the Building, Landlord shall be entitled to receive the entire amount of any award which may be made or given in such taking or condemnation, without deduction or apportionment for any estate or interest of Tenant, it being expressly understood and agreed by Tenant that no portion of any such award shall be allowed or paid to Tenant for any so-called bonus or excess value of this Lease, and such bonus or excess value shall be the sole property of Landlord. Tenant shall not assert any claim against Landlord or the taking authority for any compensation because of such taking (including any claim for bonus or excess value of this Lease); provided, however, if any portion of the Premises is taken, Tenant shall be granted the right to recover from the condemning authority (but not from Landlord) any compensation as may be separately awarded or recoverable by Tenant for the taking of Tenant's furniture, fixtures, equipment and other personal property within the Premises, for Tenant's relocation expenses, and for any loss of goodwill or other damage to Tenant's business by reason of such taking.
Temporary Taking. In the event of a taking of the Premises or any part thereof for temporary use, (a) this Lease shall be and remain unaffected thereby and rent shall not abate, and (b) Tenant shall be entitled to receive for itself such portion or portions of any award made for such use with respect to the period of the taking which is within the Term, provided that if such taking shall remain in force at the expiration or earlier termination of this Lease, Tenant shall perform its obligations under Section 10.1 with respect to surrender of the Premises and shall pay to Landlord the portion of any award which is attributable to any period of time beyond the Term expiration date. For purpose of this Section 20.4, a temporary taking shall be defined as a taking for a period of two hundred seventy (270) days or less.
20.5 Waiver of Termination Right. This Lease sets forth the terms and conditions upon which this Lease may terminate in the event of a taking. Accordingly, the parties waive the provisions of the California Code of Civil Procedure Section 1265.130 and any successor or similar statutes permitting the parties to terminate this Lease as a result of a taking.
21. TENANT'S INSURANCE.
21.1 Types of Insurance. On or before the earlier of the Commencement Date or the date Tenant commences or causes to be commenced any work of any type in or on the Premises pursuant to this Lease, and continuing during the entire Term, at Tenant's sole cost and expense, Tenant shall obtain and keep in full force and effect, the following insurance:
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21.1.1 Commercial General Liability, not excluding coverage for bodily injury (including death), property damage liability, premises liability, personal and advertising injury liability, operations hazards, and liquor liability (if Tenant sells or serves alcohol), arising out of the use and occupancy of the Premises and the Building, and any part of either, and any areas adjacent thereto, and the business operated by Tenant or by any other occupant of or guest at the Premises. Such insurance shall not exclude coverage for contractual liability coverage, including Tenant's indemnity obligations set forth in this Lease. Such coverage shall have limits no less than $1,000,000 per occurrence and $2,000,000 aggregate; the aggregate limit shall apply on a "Per Location" basis. All such policies shall be written on an "occurrence" basis and endorsed to add Landlord and, at Landlord's request, any mortgagee of Landlord as Additional Insureds and shall provide that such coverage as afforded to Landlord is primary and that any insurance maintained by Landlord shall be non-contributory. Such policy shall contain a Waiver of Subrogation endorsement in favor of Landlord.
21.1.2 Workers Compensation and Employer's Liability, as required by any applicable statute, and Employer's Liability in amounts not less than $1,000,000 for injury by accident, $1,000,000 for injury by disease. Such policy shall contain a Waiver of Subrogation endorsement in favor of Landlord.
21.1.3 Auto Liability, covering any owned, non-owned or hired auto exposure Tenant may have, in an amount no less than $1,000,000. Such insurance shall be endorsed to name Landlord as an Additional Insured and shall waive any subrogation rights against Landlord.
21.1.4 Excess Liability, as following-form excess over Commercial General Liability, Auto Liability, and Employer's Liability, in an amount not less than $5,000,000.
21.1.5 Property Insurance, covering the full replacement value of Tenant's personal property, fixtures, equipment, floor coverings, inventory, trade fixtures, and any Tenant Changes and Tenant Improvements, written on "special form," and not excluding coverage for fire and extended coverages, boiler & machinery coverage, sprinkler leakage (including earthquake sprinkler leakage), vandalism, malicious mischief, and earthquake coverage. Tenant shall also carry coverage for business interruption/loss of use in an amount not less than twelve (12) months of coverage. In the event there is a dispute as to the amount which comprises the "full replacement cost," the decision of Landlord or the mortgagees of Landlord shall be presumptive.
21.1.6 Builder's Risk, in the event Tenant performs (or causes to be performed) any work in connection with any Tenant Improvements and/or Tenant Changes, Tenant shall deliver to Landlord, prior to commencement of any such work, satisfactory evidence of Builder's Risk or Installation insurance, covering construction of such Tenant Improvements and/or Tenant Changes, as applicable, in an amount and on forms approved by Landlord. Such insurance shall include Landlord as an insured and shall waive any subrogation rights against Landlord.
21.1.7 Contractor's Insurance, any contractor or subcontractor hired to perform the work shall be required to carry the same Liability coverages and limits as required of Tenant as defined in these "Insurance Requirements." All such insurance shall name Landlord as an additional insured (for ongoing and completed operations) and shall waive any subrogation rights against Landlord. Tenant shall provide evidence of contractor's insurance to Landlord prior to the commencement of any work. Landlord reserves the right to accept or reject Contractor's insurance at their sole discretion.
21.1.8 Any Other forms) of insurance Landlord or the mortgagees of Landlord may reasonably require from time to time.
21.2 Requirements.
21.2.1 All policies shall be issued by carriers authorized to do business in the State of California and rated not less than A- VII by AM Best's rating guide. All required policies, including property insurance, shall contain Waivers of Subrogation in favor of Landlord and endorsements affording the Landlord not less than thirty (30) days' prior notice in the event of cancellation (10 days for non-payment of premium).
Any policy deductible exceeding $10,000 shall be declared to and approved by Landlord. Evidence of required coverage and endorsements shall be provided to Landlord prior to Tenant taking occupancy of the Premises and, upon policy renewal, not less than fifteen (15) days prior to the expiration of the policies. If certificates of insurance are provided as evidence of coverage, Landlord reserves the right to request copies of and inspect the policies of insurance required under this Lease. Acceptance or rejection of Tenant's insurance is at the sole discretion of Landlord.
21.2.2 It is expressly understood and agreed that the coverages required represent Landlord's minimum requirements and are not to be construed to void or limit Tenant's obligations contained in this Lease, including without limitation Tenant's indemnity obligations hereunder. Should Tenant carry higher limits than those required under this Lease, those limits are hereby required and shall be made available to Landlord. In no event shall: (A) the insolvency, bankruptcy, or failure of any insurance company covering Tenant, (B) the failure of any insurance company to pay claims, or (C) any exclusion from or insufficiency of coverage be held to affect, negate, or waive any of Tenant's indemnity obligations or any other provision of this Lease. With Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -18- Shops Lease / Inverness Management respect to insurance coverages, except worker's compensation, maintained hereunder by Tenant and insurance coverages separately obtained by Landlord, all insurance coverages afforded by policies of insurance maintained by Tenant shall be primary insurance as such coverages apply to Landlord, and such insurance coverages separately maintained by Landlord shall be excess and non-contributory, and Tenant shall have its insurance policies so endorsed. The amount of liability insurance under insurance policies maintained by Tenant shall not be reduced by the existence of insurance coverage under policies separately maintained by Landlord. Tenant shall be solely responsible for any premiums, assessments, penalties, deductible assumptions, retentions, audits, retrospective adjustments or any other kind of payment due under its policies.
21.2.3 Tenant's occupancy of the Premises without delivering the certificates of insurance shall not constitute a waiver of Tenant's obligations to provide the required coverages. If Tenant provides to Landlord a certificate that does not evidence the coverages required herein, or that is faulty in any respect, such shall not constitute a waiver of Tenant's obligations to provide the proper insurance.
21.2.4 Tenant, and all parties claiming under Tenant, release and discharge Landiord from responsibility for that portion of any loss or damage paid or reimbursed by an insurer under any fire, extended coverage or other property insurance policy maintained by Tenant with respect to its Premises (or which would have been paid had applicable insurance been in full force and effect), no matter how caused, including negligence, and waives any right of recovery including, but not limited to, claims for contribution or indemnity, which might otherwise exist on account thereof. Any fire, extended coverage or property insurance policy maintained by Tenant with respect to the Premises shall contain a waiver of subrogation provision or endorsement in favor of Landlord. Tenant agrees to indemnify, protect, defend and hold harmless each and all of the Landlord Indemnitees from and against any claim, suit or cause of action asserted or brought by Tenant's insurers for, on behalf of, or in the name of Tenant, including, but not limited to, claims for contribution, indemnity or subrogation, brought in contravention of this paragraph. The releases, discharges and waivers contained in this provision shall apply EVEN IF THE LOSS OR DAMAGE TO WHICH THIS PROVISION APPLIES IS CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF LANDLORD.
21.2.5 Landlord shall not be responsible for, and Tenant releases and discharges Landlord from, and Tenant further waives any right of recovery from Landlord for, any loss for or from business interruption or loss of use of the Premises, parking areas, and/or common areas suffered by Tenant in connection with Tenant's use or occupancy of the Premises, EVEN IF SUCH LOSS IS CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF LANDLORD.
21.2.6 Any failure of Tenant to obtain and maintain the insurance policies and coverages required hereunder or failure by Tenant to meet any of the insurance requirements of this Lease shall constitute an event of default hereunder, and such failure shall entitle Landlord to pursue, exercise or obtain any of the remedies provided for in this Lease, and Tenant shall be solely responsible for any loss suffered by Landlord as a result of such failure. In the event of failure by Tenant to maintain the insurance policies and coverages required by this Lease or to meet any of the insurance requirements of this Lease, Landlord, at its option, and without relieving Tenant of its obligations hereunder, may obtain said insurance policies and coverages or perform any other insurance obligation of Tenant, but all costs and expenses incurred by Landlord in obtaining such insurance or performing Tenant's insurance obligations shall be reimbursed by Tenant to Landlord, together with interest on same from the date any such cost or expense was paid by Landlord until reimbursed by Tenant, at the rate of interest provided to be paid on judgments, by the law of the jurisdiction to which the interpretation of this Lease is subject.
21.2.7 Any loss incurred by Tenant and not covered under any of Tenant's insurance policies is deemed to be a loss self-insured by Tenant.
21.3 Effect on Insurance. Tenant shall cooperate with Landlord and Landlord's insurers in the adjustment of any insurance claim pertaining to the Premises, the Building and/or any other portion(s) of the Shopping Center, or Landlord's use thereof. Furthermore, Tenant shall not do or permit to be done anything which will (a) violate or invalidate any insurance policy maintained by Landlord or Tenant hereunder, or (b) increase the costs of any insurance policy maintained by Landlord pursuant to Section 22 or otherwise with respect to the Building or the Shopping Center. If Tenant's occupancy or conduct of its business in or on the Premises results in any increase in premiums for any insurance carried by Landlord with respect to the Building or the Shopping Center, Tenant shall pay such increase as Additional Rent within ten (10) days after being billed therefor by Landlord. If any insurance coverage carried by Landlord pursuant to Section 22 below or otherwise with respect to the Building or the Shopping Center shall be canceled or reduced (or cancellation or reduction thereof shall be threatened) by reason of the use or occupancy of the Premises by Tenant or by anyone permitted by Tenant to be upon the Premises, and if Tenant fails to remedy such condition within five (5) days after notice thereof, Tenant shall be deemed to be in default under this Lease, without the benefit of any additional notice or cure period specified in Section 24.1 below, and Landlord shall have all remedies provided in this Lease, at law or in equity, including, without limitation, the right (but not the obligation) to enter upon the Premises and attempt to remedy such condition at Tenant's sole cost.
LANDLORD'S INSURANCE. During the Term, Landlord shall maintain the following insurance:
(a) Special Form property insurance on the Common Areas of the Shopping Center, in an amount equal to the Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -19- Shops Lease / Inverness Management full replacement cost thereof, (b) Commercial General Liability insurance; such coverage shall have a per occurrence limit of at least Five Million Dollars ($5,000,000) and a general aggregate limit of at least Five Million Dollars ($5,000,000) and (c) at Landlord's option, earthquake damage coverage, and any other additional coverage as Landlord deems appropriate. At Landlord's option, all such insurance may be carried under blanket or umbrella policies Such policy(ies) shall be written to apply to bodily injury, property damage, and personal injury occurring during the policy term. Landlord may, but shall not be obligated to, carry any other form or forms of insurance as Landlord or the mortgagees or ground lessors of Landlord may reasonably determine is advisable. The cost of insurance obtained by Landlord pursuant to this Section 22 (including self- insured amounts and deductibles) shall be included in Common Area Expenses.
23. WAIVER OF INSURERS. Each party shall cause each property insurance policy required to be obtained by it pursuant to Sections 21 and 22 to provide that the insurer waives all rights of recovery by way of subrogation against either Landlord or Tenant, as the case may be, in connection with any claims, losses and damages covered by such policy. If either party fails to maintain property insurance required hereunder, such insurance shall be deemed to be self-insured with a deemed full waiver of subrogation as set forth in the immediately preceding sentence.
24. TENANT'S DEFAULT AND LANDLORD'S REMEDIES.
Tenant's Default. The occurrence of any one or more of the following events shall constitute a Tenant default under this Lease:
1.1.1 the vacation or abandonment of the Premises by Tenant. "Abandonment" is herei fined to include, but is not limited to, any absence by Tenant from the Premises for five (5) business days ( longer while in default of any other provision of this Lease;
24.1.2 the failure by Tenant to make any payment of rent or Additional Rent or any other payment required to be made by Tenant hereunder, within three (3) days of when due;
24.1.3 the failure by Tenant to observe or perform any of the express or implied covenants or provisions of this Lease to be observed or performed by Tenant, other than as specified in Sections 24.1.1 or 24.1.2 above, where such failure shall continue for a period of ten (10) days after written notice thereof from Landlord to Tenant; provided, however, that, if the nature of Tenant's default is such that more than ten (10) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant shall commence such cure within said ten (10)-day period and thereafter diligently prosecute such cure to completion, which completion shall occur not later than sixty (60) days from the date of such notice from Landlord; and
24.1.4 (i) the making by Tenant or any guarantor hereof of any general assignment for the benefit of creditors, (ii) the filing by or against Tenant or any guarantor hereof of a petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant or any guarantor hereof, the same is dismissed within sixty (60) days), (iii) the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease or substantially all of the guarantor's assets, where possession is not restored to Tenant or the guarantor within sixty(60) days, OI (IV) the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease or substantially all of the guarantor's assets where such seizure is not discharged within sixty (60) days; and/or
24.1.5 if the permitted use involves the sale and/or preparation of food, Tenant's failure to maintain a health department rating of "A" (or such other highest health department or similar rating as is available), which failure continues for more than thirty (30) days.
Any notice required under this Section 24.1 shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure, Section 1161.
24.2 Landlord's Remedies; Termination. In the event of any such default by Tenant, in addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall have the immediate option to terminate this Lease and all rights of Tenant hereunder. In the event that Landlord shall elect to so terminate this Lease, then Landlord may recover from Tenant:
24.2.1 the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus
24.2.2 the worth at the time of the 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 Tenant proves could have been reasonably avoided; plus
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24.2.3 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 Tenant proves could be reasonably avoided; plus
24.2.4 any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant'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: unamortized Tenant Improvement costs; attorneys' fees; unamortized brokers' commissions; the costs of refurbishment, alterations, renovation and repair of the Premises; and removal (including the repair of any damage caused by such removal) and storage (or disposal) of Tenant's personal property, equipment, fixtures, Tenant Changes, Tenant Improvements and any other items which Tenant is required under this Lease to remove but does not remove.
As used in Sections 24.2.1 and 24.2.2 above, the "worth at the time of award" is computed by allowing interest at the Interest Rate set forth in Section 1.10.4. As used in Section 24.2.3 above, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).
24.3 Landlord's Remedies; Re-Entry Rights. In the event of any such default by Tenant, in addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all persons and property from the Premises; such property may be removed, stored and/or disposed of pursuant to Section 13.4 of this Lease or any other procedures permitted by Applicable Law. No re-entry or taking possession of the Premises by Landlord pursuant to this Section 24.3, and no acceptance of surrender of the Premises or other action on Landlord's part, shall be construed as an election to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction.
Landlord's Remedies; Continuation of Lease. In the event of any such default by Tenant, in addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall have the right to continue this Lease in full force and effect, whether or not Tenant shall have abandoned the Premises. The foregoing remedy shall also be available to Landlord pursuant to California Civil Code Section 1951.4 and any successor statute thereof in the event Tenant has abandoned the Premises (i.e., Landlord may continue this Lease in effect after Tenant's breach and abandonment, and recover rent as it becomes due, if Tenant continues to have the right to occupy the Premises or to sublet or assign the Premises, subject to the terms of this Lease and California Civil Code Section 1951.4, or any successor statute thereof.
If Landlord elects to continue this Lease in full force and effect pursuant to this Section 24.4, then Landlord shall be entitled to enforce all of its rights and remedies under this Lease, including the right to recover rent as it becomes due. Landlord's election not to terminate this Lease pursuant to this Section 24.4 or pursuant to any other provision of this Lease, at law or in equity, shall not preclude Landlord from subsequently electing to terminate this Lease or pursuing any of its other remedies.
Landlord's Right to Perform. Except as specifically provided otherwise in this Lease, all covenants and agreements by Tenant under this Lease shall be performed by Tenant at Tenant's sole cost and expense and without any abatement or offset of rent. If Tenant fails to pay any sum of money (other than Annual Basic Rent) or perform any other act on its part to be paid or performed hereunder and such failure continues for three (3) days with respect to monetary obligations (or ten (10) days with respect to non-monetary obligations) after Tenant's receipt of written notice thereof from Landlord, Landlord may, without waiving or releasing Tenant from any of Tenant's obligations, make such payment or perform such other act on behalf of Tenant. All sums so paid by Landlord and all necessary incidental costs incurred by Landlord in performing such other acts shall be payable by Tenant to Landlord within five (5) days after demand therefor as Additional Rent.
24.6 Interest. If any installment of rent payable by Tenant hereunder is not received by Landlord by the date when due, it shall bear interest at the Interest Rate set forth in Section 1.10.4 from the date due until paid. All interest, and any late charges imposed pursuant to Section 24.7 below, shall be considered Additional Rent due from Tenant to Landlord under the terms of this Lease.
24.7 Late Charges. Tenant acknowledges that, in addition to interest costs, the late payments by Tenant to Landlord of any rent due under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impractical to fix. Such other costs include, without limitation, processing, administrative and accounting charges and late charges that may be imposed on Landlord by the terms of any mortgage, deed of trust or related loan documents encumbering the Premises, the Building or the Shopping Center. Accordingly, if any installment of rent payable by Tenant hereunder is not received by Landlord by the due date thereof, Tenant shall pay to Landlord an additional sum of five percent (5%) of the overdue amount as a late charge, but in no event more than the maximum late charge allowed by Applicable Law. The parties agree that such late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of any late payment as hereinabove referred to by Tenant, and the payment of late charges and interest are distinct and separate in that the payment of interest is to compensate Landlord for the use of Landlord's money by Tenant, while the payment of late charges is to Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -21- Shops Lease / Inverness Management compensate Landlord for Landlord's processing, administrative and other costs incurred by Landlord as a result of Tenant's delinquent payments. Acceptance of a late charge or interest shall not constitute a waiver of Tenant's default with respect to the overdue amount or prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease or at law or in equity now or hereafter in effect.
24.8 Security Interest. Tenant hereby grants to Landlord a lien and security interest on all property of Tenant now or hereafter placed in or upon the Premises including, but not limited to, all fixtures, machinery, equipment, furnishings and other articles of personal property, and all proceeds of the sale or other disposition of such property (collectively, the "Collateral") to secure the payment of all rent to be paid by Tenant pursuant to this Lease. Such lien and security interest shall be in addition to any landlord's lien provided by Applicable Law. This Lease shall constitute a security agreement under the Commercial Code of the State so that Landlord shall have and may enforce a security interest in the Collateral. Tenant agrees to execute as debtor and deliver such financing statement or statements and any further documents as Landlord may now or hereafter reasonably request to perfect or otherwise protect such security interest pursuant to such code. Landlord may also at any time file a copy of this Lease as a financing statement. Landlord, as secured party, shall be entitled to all rights and remedies afforded as secured party under such code, which rights and remedies shall be in addition to Landlord's liens and rights provided by Applicable Law or by the other terms and provisions of this Lease.
Rights and Remedies Cumulative. All rights, options and remedies of Landlord contained in this Section 24 and elsewhere in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Landlord shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law or in equity, whether or not stated in this Lease.
Nothing in this Section 24 shall be deemed to limit or otherwise affect Tenant's indemnification of Landlord pursuant to any provision of this Lease.
LANDLORD'S DEFAULT. Landlord shall not be in default in the performance of any obligation required to be performed by Landlord under this Lease unless Landlord has failed to perform such obligation within thirty (30) days after the receipt of written notice from Tenant specifying in detail Landlord's failure to perform; provided, however, if the nature of Landlord's obligation is such that more than thirty (30) days are required for its performance, then Landlord shall not be deemed in default if it commences such performance within such thirty (30) day period and thereafter diligently pursues the same to completion. Upon any such uncured default by Landlord, Tenant may exercise any of its rights provided in law or at equity; provided, however: (a) Tenant shall have no right to offset or abate rent in the event of any default by Landlord under this Lease, except to the extent offset rights are specifically provided to Tenant in this Lease; (b) Tenant shall have no right to terminate this Lease; (c) Tenant's rights and remedies hereunder shall be limited to the extent (i) Tenant has expressly waived in this Lease any of such rights or remedies and/or (ii) this Lease otherwise expressly limits Tenant's rights or remedies, including the limitation on Landlord's liability contained in Section 32 hereof; and (d) in no event shall Landlord be liable for consequential damages.
SUBORDINATION. Without the necessity of any additional document being executed by Tenant for the purpose of effecting a subordination, and at the election of Landlord or any mortgagee of a mortgage or a beneficiary of a deed of trust now or hereafter encumbering all or any portion of the Building or the Shopping Center, or any lessor of any ground or master lease now or hereafter affecting all or any portion of the Building or the Shopping Center, this Lease shall be subject and subordinate at all times to such ground or master leases (and such extensions and modifications thereof), and to the lien of such mortgages and deeds of trust (as well as to any advances made thereunder and to all renewals, replacements, modifications and extensions thereof). Notwithstanding the foregoing, Landlord shall have the right to subordinate or cause to be subordinated any or all ground or master leases or the lien of any or all mortgages or deeds of trust to this Lease. In the event that any ground or master lease terminates for any reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure is made for any reason, at the election of Landlord's successor in interest, Tenant shall attorn to and become the tenant of such successor. Tenant hereby waives its rights under any current or future law which gives or purports to give Tenant any right to terminate or otherwise adversely affect this Lease and the obligations of Tenant hereunder in the event of any such foreclosure proceeding or sale. Tenant covenants and agrees to execute and deliver to Landlord within ten (10) days after receipt of written demand by Landlord and in the form reasonably required by Landlord, any additional documents evidencing the priority or subordination of this Lease with respect to any such ground or master lease or the lien of any such mortgage or deed of trust or evidencing Tenant's agreement to attorn to Landlord's successor. Should Tenant fail to sign and return any such documents within such ten (10) day period, Tenant shall be in default hereunder without the applicability of notice or cure periods specified in Section 24.1 above.
27. ESTOPPEL CERTIFICATE.
27.1 Tenant's Obligations. Within ten (10) business days following Landlord's written request, Tenant shall execute and deliver to Landlord an estoppel certificate, in a form substantially similar to the form of Exhibit "F" attached hereto, certifying: (a) the Commencement Date of this Lease; (b) that this Lease is unmodified and in full force and effect (or, if modified, that this Lease is in full force and effect as modified, and stating the date and nature of such modifications); (c) the date to which the rent and other sums payable under this Lease have been paid; (d) that there are not, to the best of Tenant's knowledge, any defaults under Union Landing Shopping Center/
-22- Shops Lease / Inverness Management
377172.00006/4919-0168-5109.2
this Lease by either Landlord or Tenant, except as specified in such certificate; and (e) such other matters as are reasonably requested by Landlord. Any such estoppel certificate delivered pursuant to this Section 27.1 may be relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of any portion of the Shopping Center, as well as their assignees.
Tenant's Failure to Deliver. Tenant's failure to deliver such estoppel certificate within such time shall constitute a default hereunder without the applicability of notice or cure periods specified in Section 24.1 above and shall be conclusive upon Tenant that: (a) this Lease is in full force and effect without modification, except as may be represented by Landlord; (b) there are no uncured defaults in Landlord's or Tenant's performance (other than Tenant's failure to deliver the estoppel certificate); and (c) not more than one (1) month's rental has been paid in advance. Tenant shall indemnify, protect, defend (with counsel reasonably approved by Landlord in writing) and hold Landlord harmless from and against any and all claims, judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys' fees and court costs) attributable to any failure by Tenant to timely deliver any such estoppel certificate to Landlord pursuant RELOCATION. If Landlord requires the Premises for use by another tenant or for other reasons connected with the Shopping Center planning program, then Landlord shall have the right, upon sixty (60) days' prior written notice to Tenant, to relocate the Premises to other space in the Building or the Shopping Center of substantially similar size as the Premises, and with tenant improvements of substantially similar age, quality and layout as then existing in the Premises. In the event of any such relocation, Landlord shall pay for the cost of providing such substantially similar tenant improvements (but not any furniture or personal property), and Landlord shall reimburse Tenant, within thirty (30) days after Landlord's receipt of invoices and paid receipts, for the reasonable moving, telephone installation and stationery reprinting costs actually paid for by Tenant in connection with such relocation. If Landlord so relocates Tenant, the terms and conditions of this Lease shall remain in full force and effect and apply to the new space, except that (a) a revised Exhibit "B" shall become part of this Lease and shall reflect the location of the new space, (b) the Summary to this Lease shall be amended to include and state all correct data as to the new space, and (c) such new space shall thereafter be deemed to be the "Premises" hereunder. Notwithstanding the foregoing provisions of this Section 28 to the contrary, if the new space contains more leasable area than the original Premises, Tenant shall not be obligated to pay any more Annual Basic Rent or Common Area Expenses than otherwise applicable to the original Premises. Landlord and Tenant agree to cooperate fully in order to minimize the inconvenience
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS.
29.1 Modifications. If, in connection with Landlord's obtaining or entering into any financing or ground lease for any portion of the Building or the Shopping Center, the lender or ground lessor shall request modifications to this Lease, Tenant shall, within ten (10) days after request therefor, execute an amendment to this Lease including such modifications, provided such modifications are reasonable, do not increase the obligations of Tenant hereunder, or adversely affect the leasehold estate created hereby or Tenant's rights
29.2 Cure Rights. In the event of any default on the part of Landlord, Tenant will give notice by registered or certified mail to any beneficiary of a deed of trust or mortgagee covering the Premises or ground lessor of Landlord whose address shall have been furnished to Tenant, and shall offer such beneficiary, mortgagee or ground lessor a reasonable opportunity to cure the default (including with respect to any such beneficiary or mortgagee, time to obtain possession of the Premises, subject to this Lease and Tenant's rights hereunder, by power of sale or judicial foreclosure, if such should prove necessary to effect a cure).
QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that, upon Tenant performing all of the covenants and provisions on Tenant's part to be observed and performed under this Lease (including payment of rent hereunder), Tenant shall and may peaceably and quietly have, hold and enjoy the Premises in accordance with and subject to the terms and conditions of this Lease as against all persons claiming by, through or under Landlord.
TRANSFER OF LANDLORD'S INTEREST. The term "Landlord" as used in this Lease, so far as covenants or obligations on the part of the Landlord are concerned, shall be limited to mean and include only the owner or owners, at the time in question, of the fee title to, or a lessee's interest in a ground lease of, the Shopping Center. In the event of any transfer or conveyance of any such title or interest (other than a transfer for security purposes only), the transferor shall be automatically relieved of all covenants and obligations on the part of Landlord contained in this Lease accruing after the date of such transfer or conveyance. Landlord and Landlord's transferees and assignees shall have the absolute right to transfer all or any portion of their respective title and interest in the Shopping Center, the Building, the Premises and/or this Lease without the consent of Tenant, and such transfer or subsequent transfer shall not be deemed a violation on Landlord's part of any of the terms and conditions of this Lease.
32. LIMITATION ON LANDLORD'S LIABILITY. Notwithstanding anything contained in this Lease to the contrary, the obligations of Landlord under this Lease (including any actual or alleged breach or default Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -23- Shops Lease / Inverness Management by Landlord) do not constitute personal obligations of the individual partners, directors, officers, members, managers or shareholders of Landlord or Landlord's partners, and Tenant shall not seek recourse against the individual partners, directors, officers, members, managers or shareholders of Landlord or Landlord's partners, or any of their personal assets for satisfaction of any liability with respect to this Lease. In addition, in consideration of the benefits accruing to Tenant under this Lease, and notwithstanding anything contained in this Lease to the contrary, Tenant hereby covenants and agrees for itself and all of its successors and assigns that the liability of Landlord for its obligations under this Lease (including any liability as a result of any actual or alleged failure, breach or default hereunder by Landlord), shall be limited solely to, and Tenant's and its successors' and assigns' sole and exclusive remedy shall be against, Landlord's interest in the Shopping Center, and no other assets of Landlord.
33. FINANCIAL STATEMENTS.
33.1 Current Financial Statements. Upon ten (10) days prior written request from Landlord (which Landlord may make at any time during the Term but no more often than twice in any calendar year), Tenant shall deliver to Landlord a current financial statement of Tenant and any guarantor of this Lease. Such statements shall be prepared in accordance with generally acceptable accounting principles and certified as true in all material respects by Tenant (if Tenant is an individual) or by an authorized officer or general partner of Tenant (if Tenant is a corporation or partnership, respectively) or by the managing member of Tenant (if Tenant is a limited liability company).
33.2 [Intentionally Deleted]
34. MISCELLANEOUS.
34.1 Governing Law. This Lease shall be governed by, and construed pursuant to, the laws of the State of California.
Successors and Assigns. Subject to the provisions of Section 31 above, and except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, personal representatives and permitted successors and assigns; provided, however, no rights shall inure to the benefit of any Transferee of Tenant unless the Transfer to such Transferee is made in compliance with the provisions of Section 15, and no options or other rights which are expressly made personal to the original Tenant hereunder or in any rider attached hereto shall be assignable to or exercisable by anyone other than the original Tenant under this Lease.
34.3 No Merger. The voluntary or other surrender of this Lease by Tenant or a mutual termination thereof shall not work as a merger and shall, at the option of Landlord, either (a) terminate all or any existing subleases, or (b) operate as an assignment to Landlord of Tenant's interest under any or all such subleases.
34.4 Professional Fees. If either Landlord or Tenant should bring suit against the other with respect to this Lease, including for unlawful detainer or any other relief against the other hereunder, then all costs and expenses incurred by the prevailing party therein (including, without limitation, its actual appraisers', accountants', attorneys' and other professional fees, expenses and court costs), shall be paid by the other party.
34.5 Waiver. The waiver by either party of any breach by the other party of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant and condition herein contained, nor shall any custom or practice which may become established between the parties in the administration of the terms hereof be deemed a waiver of, or in any way affect, the right of any party to insist upon the performance by the other in strict accordance with said terms.
No waiver of any default of either party hereunder shall be implied from any acceptance by Landlord or delivery by Tenant (as the case may be) of any rent or other payments due hereunder or any omission by the non-defaulting party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect defaults other than as specified in said waiver. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease other than the failure of Tenant to pay the particular rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent.
Terms and Headings. The words "Landlord" and "Tenant" as used herein shall include the plural as well as the singular. Words used in any gender include other genders. The Section headings of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof. Any deletion of language from this Lease prior to its execution by Landlord and Tenant shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language.
34.7 Time. Time is of the essence with respect to performance of every provision of this Lease in which time or performance is a factor. All references in this Lease to "days" shall mean calendar days unless specifically modified herein to be "business" days.
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -24 Shops Lease / Inverness Management
34.8 Prior Agreements; Amendments. This Lease, including all Exhibits and Riders attached hereto, contains all of the covenants, provisions, agreements, conditions and understandings between Landlord and Tenant concerning the Premises and any other matter covered or mentioned in this Lease, and no prior agreement or understanding, oral or written, express or implied, pertaining to the Premises or any such other matter shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. The parties acknowledge that all prior agreements, representations and negotiations are deemed superseded by the execution of this Lease to the extent they are not expressly incorporated herein.
34.9 Severability. The invalidity or unenforceability of any provision of this Lease (except for Tenant's obligation to pay Annual Basic Rent, Percentage Rent and Common Area Expenses) shall in no way affect, impair or invalidate any other provision hereof, and such other provisions shall remain valid and in full force and effect to the fullest extent permitted by Applicable Law.
Recording. Neither Landlord nor Tenant shall record this Lease. In addition, neither party shall record a short form memorandum of this Lease without the prior written consent (and signature on the memorandum) of the other, and provided that prior to recordation Tenant executes and delivers to Landlord, in recordable form, a properly acknowledged quitclaim deed or other instrument extinguishing all of the Tenant's rights and interest in and to the Shopping Center, the Building and the Premises, and designating Bill Landlord as the transferee, which deed or other instrument shall be held by Landlord and may be recorded by Landlord once this Lease terminates or expires (but not prior thereto). If such short form memorandum is recorded in accordance with the foregoing, the party requesting the recording shall pay for all costs of or related to such recording, including, but not limited to, recording charges and documentary transfer taxes.
34.11 Exhibits and Riders. All Exhibits and Riders attached to this Lease are hereby incorporated in this Lease for all purposes as though set forth at length herein.
34.12 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than the rent payment herein stipulated shall be deemed to be other than on account of the rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease. Tenant agrees that each of the foregoing covenants and agreements shall be applicable to any covenant or agreement either expressly contained in this Lease or imposed by any statute or at common law.
34.13 No Partnership. Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant by reason of this Lease.
34.14 Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock-outs, labor troubles, inability to procure materials, failure of power, governmental moratorium or other governmental action or inaction (including failure, refusal or delay in issuing permits, approvals and/or authorizations), injunction or court order, riots, insurrection, war, fire, earthquake, flood or other natural disaster, actual or threatened public health emergency (including, without limitation, epidemic, pandemic, famine, disease, plague, quarantine, and other significant public health risk), governmental edicts, actions, declarations or quarantines by a governmental entity or health organization (including, without limitation, any shelter-in-place orders, stay at home orders or any restrictions on travel related thereto that preclude Tenant, its agents, contractors or its employees from accessing the Premises) or other reason of a like nature not the fault of the party delaying in performing work or doing acts required under the terms of this Lease (but excluding delays due to financia inability) (herein collectively, "Force Majeure Delays"), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Notwithstanding the foregoing, no Force Majeure Delays shall (a) excuse Tenant's obligations to pay Rent and other charges due pursuant to this Lease, (b) be grounds for Tenant to abate any portion of Rent due pursuant to this Lease, or entitle either party to terminate this Lease, except as allowed pursuant to Sections 19 and 20 of this Lease, (c) except for Section 7.2, excuse Tenant's obligations under Sections 7 of this Lease. The provisions of this Section 34.14 shall not apply to nor operate to excuse Tenant from the payment of rent in accordance with the terms of this Lease.
34.15 Execution in Counterparts. This Lease may be executed in two (2) or more counterparts and/or by the execution of counterpart signature pages that may be attached to one (1) or more counterparts of this Lease, cach of which shall be deemed to be an original and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all parties have not signed the same counterpart.
In addition, any counterpart signature page may be executed by any party wherever such party is located, and may be delivered by facsimile transmission or by portable document format ("PDF"), and any such facsimile or PDF transmitted signature pages may be attached to one (1) or more counterparts of this Lease, and such signature(s) sent by facsimile or by PDF shall have the same force and effect, and be as binding, as if original signatures had been executed and delivered in person. The parties may also validly execute (using DocuSign Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -25- Shops Lease / Inverness Management or a similar electronic signature service) and deliver (by using electronic mail) this Lease through electronic means.
34.16 Nondisclosure of Lease Terms. Tenant acknowledges and agrees that the terms of this Lease are confidential and constitute proprietary information of Landlord. Disclosure of the terms could adversely affect the ability of Landlord to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors, employees, agents and attorneys, shall not intentionally and voluntarily disclose the terms and conditions of this Lease to any newspaper or other publication or any other tenant or apparent prospective tenant of the Building or other portion of the Shopping Center, or real estate agent, either directly or indirectly, without the prior written consent of Landlord, provided, however, that Tenant may disclose the terms to prospective subtenants or assignees under this Lease.
34.17 Non-Discrimination. Tenant acknowledges and agrees that there shall be no discrimination against, or segregation of, any person, group of persons, or entity on the basis of race, color, creed, religion, age, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion thereof.
34.18 Jury Trial. To the fullest extent permitted by Applicable Law, each party hereby waives any right to a trial by jury in any action seeking specific performance of any provision of this Lease, for damages for any breach under this Lease, or otherwise for enforcement of any right or remedy hereunder.
34.19 Tenant Delay. As used in this Lease, the term "Tenant Delay" means any delay in the performance of any obligation under this Lease as a result of any acts and/or omissions of Tenant and/or any of Tenant's Parties.
34.20 Waiver of Claims. As a material inducement to Landlord to enter into this Lease, Tenant hereby releases Landlord from, and hereby waives, any and all losses, costs, damages, expenses, liabilities, claims and causes of action (collectively, the "Released Claims") arising from or related to Tenant's inability or limitation to conduct operations from the Premises as a result of any "shelter in place" orders or similar governmental directives, including, without limitation, any claims for, and/or rights of, termination of this Lease and/or abatement, offset and/or deferral of Rent under this Lease, at law and/or in equity related to the inability of Tenant to conduct operations from the Premises as a result of any "shelter in place" orders or similar governmental directives related thereto. With respect to the Released Claims, Tenant acknowledges that Tenant has either been advised by legal counsel or has made itself familiar with the provisions of California Civil Code section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. Tenant, being aware of the foregoing code section, hereby expressly waives any rights Tenant may have thereunder, as well as under any other statutes or common-law principles of similar effect, pertaining to the Released Claims.
Auctions. Tenant shall have no right to conduct any auction in, on or about the Premises, the Building or the Shopping Center.
35. LEASE EXECUTION.
35.1 Tenant's Authority. If Tenant executes this Lease as a partnership or corporation, then Tenant and the persons and/or entities executing this Lease on behalf of Tenant represent and warrant that:
(a) Tenant is a duly organized and validly existing limited liability company, partnership or corporation, as the case may be, and is qualified to do business in the state in which the Building is located; (b) such persons and/or entities executing this Lease are duly authorized to execute and deliver this Lease on Tenant's behalf in accordance with the Tenant's operating or partnership agreement (if Tenant is a limited liability company or partnership, respectively), or a duly adopted resolution of Tenant's board of directors and the Tenant's by-laws (if Tenant is a corporation); and (c) this Lease is binding upon Tenant in accordance with its terms.
Concurrently with Tenant's execution and delivery of this Lease to Landlord and/or at any time during the Term within ten (10) days of Landlord's request, Tenant shall provide to Landlord a copy of any documents reasonably requested by Landlord evidencing such qualification, organization, existence and authorization.
35.2 Joint and Several Liability. If more than one person or entity executes this Lease as Tenant:
(a) each of them is and shall be jointly and severally liable for the covenants, conditions, provisions and agreements of this Lease to be kept, observed and performed by Tenant; and (b) the act or signature of, or notice from or to, any one or more of them with respect to this Lease shall be binding upon each and all of the persons and entities executing this Lease as Tenant with the same force and effect as if each and all of them had so acted or signed, or given or received such notice.
35.3 No Option. The submission of this Lease for examination or execution by Tenant does not constitute a reservation of or option for the Premises and this Lease shall not become effective as a Lease until it has been executed by Landlord and delivered to Tenant.
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -26- Shops Lease / Inverness Management [SIGNATURE PAGE FOLLOWS]
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -27- Shops Lease / Inverness Management IN WITNESS WHEREOF, the parties have executed this Lease as of the respective dates set forth below (with the later of such dates being deemed to the "Effective Date"). "TENANT" INVERNESS MANAGEMENT, LLC,
a California limited liability company
By:
Print Name:
Print Title: _
Date of Tenant's Execution: October _ 2025
"LANDLORD" PAPPAS UNION CITY NO. 2, L.P.,
a California limited partnership
By: PF International, LLC
a California limited liability company
Its General Partner
Print Name: John Papagiannopoulos, also known as
John Pappas
Print Title: Manager
Date of Landlord's Execution: October _ 2025
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -28- Shops Lease / Inverness Management EXHIBIT A"
SHOPPING CENTER SITE PLAN
NORTH
20°
- MARI
160' 640'
UNION LANDING
UNION CITY, CA
LOWES
Pappas Investments
2020 L Street • 5th Floor • Sacramento, CA 95811
(916)447-7100 FAX(916)447-7112
Exhibit "A" Union Landing Shopping Center/ Shops Lease
4887-6704-1400.9 Pacific Dental
-1-
377172.00019/5-15-24/ceo/bjw
118-6"
23'-9" 20'-0" 18-9' 56'-0"
16'-3"
6'-3' Union Landing Shopping Center/ Shops Lease / Inverness Management 107 S.F.
INVERNESS DELTA EYE
MATHNASIUM MANAGEMENT CARE ANDERSON BAKERY
60'-0" 1318 S.F. 1200 S.F. 1125 S.F. 3360 S.F.
53-9"
EXHIBIT "B" FLOOR PLAN OF PREMISES Exhibit "B" -1-
31075 31079 31087 31097
UNION LANDING 377172.00006/4919-0168-5109.2
SHOPS 3 - EXHIBIT B' Pappas Investments
COURTHOUSE DRIVE
THE INFORMATION SHOWN HERBON IS FOR
FEASIBILITY PURPOSES ONLY. SETBACKS, UNION CITY, CA 2020 L Street PARKING LANDSCAPB OR OTHER ZONING • 5th Floor • Sacramento, CA 95811 REQUIREMENTS HAVE NOT BBEN BRIFIED N.T.S. 09/26/2025 (916)447-7100 FAX(916)447-7112 WITH THE APPROPRIATE JURISDICTIONS.
EXHIBIT "C"
[Intentionally Deleted]
Exhibit"'" Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 Shops Lease / Inverness Management EXHIBIT "D"
SAMPLE FORM OF NOTICE OF LEASE TERM DATES
To: Date:_
Re: 20_ between
Tenant,
concerning Suite
Gentlemen:
In accordance with the above-referenced Lease, we wish to advise and/or confirm as follows:
1. That the Premises have been accepted by Tenant as being substantially complete in accordanc vith the Lease, and that there is no deficiency in construction
2. That Tenan has case than a in please of the Premise, and ankaolodes that under the. to renew for — _years each, and commenced upon the Commencement Date of → 20_ and is currently scheduled to expire on
subject to earlier termination as provided in the Lease.
3. That in accordance with the Lease, rental payment has commenced (or shall commence) on
4. If the Commencement Date of the Lease is other than the first day of the month, the first billing will contain a pro rata adjustment. Each billing thereafter, with the exception of the final billing, shall be for the full amount of the monthly installment as provided for in the Lease.
5. He leade operal the end endy read and ere mail during the tea of
6. The Floor Area of the Premises is _ square feet.
7. Ienant's Monthly Common Area Expense Payment is _
AGREED AND ACCEPTED
TENANT: LANDLORD:
By:_ - By:_
By:-
SAMPLE ONLY [NOT FOR EXECUTION]
Exhibit "D* Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 Shops Lease / Inverness Management EXHIBIT "E"
RULES AND REGULATIONS
1. No sign, advertisement, name or notice shall be installed or displayed on any part of the outside or inside of the Building or in any part of the Common Area without the prior written consent of Landlord.
Landlord shall have the right to remove, at Tenant's expense and without notice, any sign installed or displayed in violation of this rule. All approved signs or lettering on doors and walls shall be printed, painted, affixed or inscribed at the expense of Tenant by a person approved by Landlord, using materials and in a style and format approved by Landlord.
Tenant shall not place anything or allow anything to be placed near the glass of any window, door, partition or wall which may appear unsightly from outside the Premises, in Landlord's sole discretion. No awnings or other projection shall be attached to the outside walls of the Building without the prior written
3. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances, or loading docks of the Building. Neither Tenant nor any employee, invitee, agent, licensee or contractor of Tenant shall go upon or be entitled to use any portion of the roof of the Building.
4. Unless expressly set forth to the contrary in Tenant's Lease, Tenant shall have no right or entitlement to the display of Tenant's name or logo on any Shopping Center sign, monument sign or pylon sign.
All cleaning and janitorial services for the Premises shall be provided, at Tenant's sole cost and expense, exclusively by or through Tenant or Tenant's janitorial contractors in accordance with the provisions of Tenant's Lease. Tenant shall not cause any unnecessary labor by carelessness or indifference to the good order and cleanliness of the Premises.
Landlord will furnish Tenant, free of charge, with two keys to each door lock in the Premises.
Landlord may impose a reasonable charge for any additional keys. Tenant, upon termination of its tenancy, shall deliver to Landlord the keys of all doors which have been furnished to, or otherwise procured by Tenant.
7. Electric wires, telephones, burglar alarms or other similar apparatus shall not be installed in the Premises except with the approval and under the direction of Landlord. The location of telephones, call boxes and any other equipment affixed to the Premises shall be subject to the approval of Landlord. Any installation of telephones, telegraphs, electric wires or other electric apparatus made without permission shall be removed by Tenant at Tenant's own expense.
8. Tenant shall not use or keep in the Premises any kerosene, gasoline or inflammable or combustible fluid or material other than those limited quantities necessary for the operation or maintenance of office equipment, subject to any express provisions of Tenant's Lease to the contrary. Tenant shall not use or permit to be used in the Premises any foul or noxious gas or substance, or permit or allow the Premises to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Building by reason of noise, odors or vibrations, nor shall Tenant bring into or keep in or about the Premises any birds or animals.
9. Tenant shall not use any method of heating or air-conditioning other than that supplied by Landlord.
10. Landlord reserves the right from time to time, in Landlord's sole and absolute discretion, exercisable without prior notice and without liability to Tenant: (a) to name or change the name of the Building or the Shopping Center; (b) to change the address of the Building, and/or (C) to install, replace or change any signs in, on or about the Common Areas, the Building or Shopping Center (except for Tenant's signs, if any, which are expressly permitted by Tenant's Lease.
Tenant shall close and lock all doors of its Premises and entirely shut off all water faucets or other water apparatus, unless otherwise needed for Tenant's business and, except with regard to Tenant's computers and other equipment, if any, which reasonably require electricity on a 24-hour basis, all electricity, gas or air outlets before Tenant and its employees leave the Premises. Tenant shall be responsible for any damage or injuries sustained by other tenants or occupants of the Building or by Landlord for noncompliance with this rule.
The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed, and no foreign substances of any kind whatsoever shall be thrown therein.
Exhibit "E"
Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -1- Shops Lease / Inverness Management
13. Tenant shall not make any room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than that specifically provided for in the Lease.
14. Tenant shall not install any radio or television antenna, loudspeaker or other device on the roof or exterior walls of the Building. Tenant shall not interfere with radio or television broadcasting or reception from or in the Building or elsewhere.
15. Except as expressly permitted in Tenant's Lease, Tenant shall not mark, drive nails, screw or drill into the partitions, window mullions, woodwork or plaster, or in any way deface the Premises or any part thereof, except to install normal wall hangings. Tenant shall repair any damage resulting from noncompliance under this rule.
16. Canvassing, soliciting and distribution of handbills or any other written material, and peddling in the Common Area and other portions of the Shopping Center are expressly prohibited, and each tenant shall cooperate to prevent same.
Landlord reserves the right to exclude or expel from the Shopping Center any person who, in Landlord's judgment, is intoxicated or under the influence of liquor or drugs or who is in violation of any of the Rules and Regulations of the Shopping Center.
18. Tenant shall store all its trash and garbage within its Premises or in designated trash containers or garbage and refuse disposal shall be made in accordance with directions reasonably issued from time to time by Landlord.
19. The Premises shall not be used for lodging or for manufacturing of any kind.
20. Tenant agrees that it shall comply with all fire and security regulations that may be issued from time to time by Landlord, and Tenant also shall provide Landlord with the name of a designated responsible principal or employee to represent Tenant in all matters pertaining to such fire or security regulations.
Tenant shall cooperate fully with Landlord in all matters concerning fire and other emergency procedures.
Tenant assumes any and all responsibility for protecting its Premises from theft, robbery and pilferage. Such responsibility shall include keeping doors locked and other means of entry to the Premises
22. The requirements of Tenant will be attended to only upon the appropriate application to Landlord or Landlord's designated representative by an authorized individual. Employees of Landlord shall not perform any work or do anything outside of their regular duties unless under special instructions from Landlord.
23. any such Rules and Regulations against any and all of the tenants in the Building.
These Rules and Regulations are in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of any lease of premises in the Shopping Center.
25. Landlord reserves the right to make such other and reasonable Rules and Regulations as, in its judgment, may from time to time be needed for safety, security, care and cleanliness of the Shopping Center and for the preservation of good order therein. Tenant agrees to abide by all such Rules and Regulations hereinabove stated and any additional rules and regulations which are adopted.
26. Tenant shall be responsible for the observance of all of the foregoing rules by Tenant's employees, agents, clients, customers, invitees or guests.
PARKING RULES AND REGULATIONS
In addition to the foregoing rules and regulations and the parking provisions contained in the Lease to which this Exhibit "E" is attached, the following rules and regulations shall apply with respect to the use of the Shopping Center's parking areas.
1. Every parker is required to park and lock his/her own vehicle. All responsibility for damage to or loss of vehicles is assumed by the parker and Landlord shall not be responsible for any such damage or loss by water, fire, defective brakes, the act or omissions of others, theft, or for any other cause.
Exhibit "E" Union Landing Shopping Center/
-2- Shops Lease / Inverness Management
377172.00006/4919-0168-5109.2
2. Tenant and its employees shall only park in parking areas designated by Landlord. Tenant shall not leave vehicles in the parking areas overnight nor park any vehicles in the parking areas other than automobiles, motorcycles, motor driven or non-motor driven bicycles or four wheeled trucks.
3. No overnight or extended term storage of vehicles shall be permitted.
4. Vehicles must be parked entirely within painted stall lines of a single parking stall.
5. All directional signs and arrows must be observed.
6. The speed limit within all parking areas shall be five (5) miles per hour.
7. Parking is prohibited: (a) in areas not striped for parking; (b) in aisles; (c) where "no parking" signs are posted; (d) on ramps; (e) in cross-hatched areas; and (f) in reserved spaces and in such other areas as may be designated by Landlord.
8. Washing, waxing, cleaning or servicing of any vehicle in any area not specifically reserved for such purpose is prohibited.
9. Exhibit "E" Union Landing Shopping Center/
-3- Shops Lease / Inverness Management
377172.00006/4919-0168-5109.2
EXHIBIT "F"
SAMPLE FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned ("Tenant") hereby certifies to
("Landlord"), and → as follows:
The Lease is now in
Full force and effect and has not been amended, modified or supplemented, except as set forth in Section 6 below.
2. The term of the Lease commenced on _20_:
3. The term of the Lease is currently scheduled to expire on _ 20_
4. Tenant has no option to renew or extend the Term of the Lease except:
5. Tenant has no preferential right to purchase the Premises or any portion of the Building or Shopping Center upon which the Premises are located, and Tenant has no rights or options to expand into other space in the Building except:
6. The Lease has: (Initial One)
() not been amended, modified, supplemented, extended, renewed or assigned. () been amended, modified, supplemented, extended, renewed or assigned by the following described agreements, copies which attached hereto:
Tenant has accepted and is now in possession of the Premises and has not sublet, assigned or encumbered the Lease, the Premises or any portion thereof except as follows:
8. The current Monthly Basic Rent is $. _; and current monthly parking charges are
9. Tenant's Share is % and the Monthly Common Area Expense Payment currently payable by Tenant is S per month.
10. The amount of security deposit (if any) is $. _ No other security deposits have been made.
11. All rental payments payable by Tenant have been paid in full as of the date hereof. No rent under the Lease has been paid for more than thirty (30) days in advance of its due date.
12. All work required to be performed by Landlord under the Lease has been completed and has been accepted by Tenant, and all tenant improvement allowances have been paid in full.
13. To the best of Tenant's knowledge, as of the date hereof, there are no defaults on the part of Landlord or Tenant under the Lease.
14. Tenant has no defense as to its obligations under the Lease and claims no set-off or counterclaim against Landlord.
15. Tenant has no right to any concession (rental or otherwise) or similar compensation in connection with renting the space it occupies, except as expressly provided in the Lease.
16. All insurance required of Tenant under the Lease has been provided by Tenant and all premiums have been paid.
17. There has not been filed by or against Tenant a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States or any state thereof, or any other action brought pursuant to such bankruptcy laws with respect to Tenant.
Exhibit "F" Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 - 1- Shops Lease / Inverness Management
18. Tenant pays rent due Landlord under the Lease to Landlord and does not have any knowledge of any other person who has any right to such rents by collateral assignment or otherwise.
19. The foregoing certification is made with the knowledge that _is about to fund a loan to Landlord or purchase the Building from Landlord], and that is relying upon the representations herein made in [funding such loan or purchasing the Building].
Dated: → 20_.
"TENANT"
By:
By:_
SAMPLE ONLY (NOT FOR EXECUTION)
Exhibit "F" Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -2- Shops Lease / Inverness Management EXHIBIT "G"
[Intentionally Deleted]
Exhibit "G" Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -1- Shons Lease / inverness Management EXHIBIT "H"
SIGN CRITERIA
A. Purpose and Intent.
The following criteria, which are based upon the Sign Regulations of the City of Union City and are subject to said Regulations, have been established for the purpose of assuring a consistent sign design program for the mutual benefit of all occupants. Flexibility of design is encouraged, while at the same time visual harmony must be maintained. The Landlord will enforce conformity with these criteria. Any nonconforming sign will be brought into conformity at the expense of the Tenant.
B. General Criteria. (See also Section 7.4 of the Lease.)
1. Prior to manufacture of its sign(s), Tenant shall submit two (2) copies of detailed drawings to Landlord for approval. These drawings shall include the building elevations to which the sign(s) are to be attached, sign dimensions, graphics, location, colors and method of attachment. This approval must be obtained prior to submittal to the City of Union City.
2. All signs shall be reviewed for conformance with these criteria and overall design quality.
Approval or disapproval of sign submittals based on aesthetics of design shall remain the sole right of the Landlord. Wording of a sign shall not include a product or service sold except as part of the Tenant's trade name.
3. Tenant shall pay all costs for its sign(s), including design, manufacture, installation, maintenance, removal and City permits.
4. Tenant shall be responsible for and repair any damage to any surface caused by the signage, its installation, or its removal.
5. Tenant shall be fully responsible for the actions of its sign contractor, and shall indemnify, defend and hold harmless the Landlord and his agents form damages or liabilities resulting from the sign contractor's work.
6. Landlord reserves the right, within reason, to periodically hire an independent electrical engineer, at Tenant's sole expense, to inspect the installation of Tenant's sign(s). Tenant will be required to have any discrepancies and/or code violations corrected at Tenant's expense. The Landlord at Tenant's expense may correct any code violation, requests tor sign removals, or discrepancies not corrected within fifteen (15) days of notice. The electrical circuit for Tenant's sign(s) will be powered from the building house panel.
7. Tenant's sign contractor shall carry workers' compensation and public liability insurance against all damage suffered or done by any and all persons and/or property while engaged in the fabrication, installation, or removal of signs in the amount of One Million Dollars ($1,000,000) per occurrence. Evidence of this insurance must be provided to Landlord
8. Tenant shall remove its sign(s) and restore the mounting surface(s) to its (their) original condition at Tenant's sole cost and expense within fifteen (15) days of expiration of the lease term or earlier termination of Tenant's lease.
9. c. Prohibited Signs.
1. rohibited, except as otherwise previously approved by the Landlord prior to installatio
2. No animated, flashing, audible, off-premise, or vehicle signs are allowed.
3. No exposed raceways, crossovers, conduits, neon tube conductors, transformers or other components are allowed.
D. Sign Design and Construction.
Exhibit Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 Shops Lease / Inverness Management
1. Each tenant shall have an internally illuminated sign comprised of individual channel letters on the building fascia. The sign shall be compatible with and complementary to the colors, materials, scale, and architecture of the building and the project, and no sign shall extend above the roofline. The location of the sign shall be as directed by Landlord and shall comply with these criteria.
2. Tenants having demised premises with more than one public frontage shall be allowed one sign on each frontage, with the exception that secondary entry signs will also be allowed on the primary building frontage. Signs may be allowed on the rear of the building.
3. The permitted sign area, as well as the method of measuring sign area, shall be in accordance with the Sign Regulations of the City of Union City.
4. All signs and their installation shall comply with all applicable City building and electrical codes and shall bear a U.L. label.
5. Tenant's sign contractor shall completely install and connect the sign displays) and primary wiring at the sign locations) specified by Landlord.
6. All penetrations of exterior surfaces are to be sealed watertight, with color and finish to match adjacent material and subject to Landlord's approval.
Tenant shall maintain all signs in first-class condition at all times. The standard for maintenance and repair of signs shall be that which will assure the highest visual quality.
Faded sign panels shall be replaced by Tenant.
8. Tenant's sign(s) shall be affixed with concealed fasteners, which shall be stainless steel, nickel or cadmium plated. All signage and letters shall be pegged off from the building surface a minimum of one half inch (.5").
9. Plastic surfaces shall be as manufactured for outdoor advertising.
10. No labels or identification will be permitted on the exposed surfaces of signs except those required by ordinance.
11. Each sign shall consist of internally illuminated individual channel letters (i.e., no cabinet or "can" signs). The returns shall be five inches (5") deep with a highly polished gold anodized aluminum surface; the trim cap shall be three-fourths inch (3/4") from the same material. Internal illumination shall be 30 milli-amp neon installation labeled in accordance with the "National Board of Fire Underwriters Specifications."
12. Signs that incorporate logos, business identities and/or images denoting the type of business are encouraged. Landlord shall approve logos on a case-by-case basis. Landlord, at Landlord's discretion, will review signs with the intention of varying the sign colors of adja beatloant signs so that adjacent signs are not the same color. No can or cabinet signs
13. All sign fabrication work shall be of excellent quality. All logo images and type styles shall be accurately reproduced. Lettering that approximates type styles shall not be accepted.
14. The maximum vertical sign height is 24" for all components, except that a tenant of at least 12,000 square feet may have a sign height of up to 36". However, no sign on the rear of a building may exceed 24". A descending stem may drop below the baseline. The sign length shall not exceed 80% of Tenant's leased frontage.
E. Approvals.
1. For Landlord approval, submit drawings as described in paragraph B.1 above. Allow ten (10) business days for response.
2. Prior to fabrication of its sign(s), and after obtaining Landlord's approval of its sign(s), Tenant shall obtain a sign permit from the City of Union City.
Exhibit "H"
Union Landing Shopping Center
377172.00006/4919-0168-5109.2 -2- Shops Lease / Inverness Management EXHIBIT "7'
PROHIBITED, RESTRICTED AND EXCLUSIVE USES
1. USE RESTRICTIONS.
(a) Wells Fargo Use Restrictions. To avoid congestion of the parking area near the westerly end of Building 1 and the Wells Fargo Bank, Landlord has agreed that the west half of Building 1 on Landlord and any tenant leasing space in the west half of Building 1, and their successors and assigns, and persons claiming under or through such persons.
EXCLUSIVES. The following exclusives have been or may be granted to tenants of the Shopping Center and may not be violated by any tenant other than the tenant to whom such exclusive has been granted::
As long as Gerry's Grill is open and operating in the Shopping Center it shall be the exclusive restaurant specializing in Filipino cuisine.
As long as Cold Stone Creamery is open and operating in the Shopping Center it shall be the exclusive ice cream store.
For as long as EuroWax or its successor is open and operating in the Shopping Center as "European Wax Center" for the provision of body waxing services pursuant to a franchise agreement that permits such operation, Landlord shall not lease space in the Shopping Center to another tenant whose use would include the provision of body waxing services and Landlord shall not consent to intention that European Wax Center shall be the exclusive provider of body waxing services in the Shopping Center.
For as long as Anderson Bakery is open and operating in the Shopping Center, it shall be the exclusive bakery-café which means a retail operation that engages primarily in the sale of bakery goods, whether or not in combination with the sale of sandwiches, soups, salads, pizza and non- alcoholic beverages.
For as long as Massage Envy is operating in the Shopping Center, Landlord agrees not to lease space in the Shopping Center to another tenant whose primary business is to provide massage and/or muscle therapy services. Notwithstanding the foregoing, such exclusive shall not apply to (a) any tenant within the Shopping Center offering such services on an "incidental" basis, such as a chiropractor or a spa, (b) any tenant occupying space within the Shopping Center pursuant to a lease entered into prior to the date of the Lease, or (c) any tenant occupying in excess of 5,000 square feet of space in the Shopping Center. For purposes of the previous sentence "incidental" shall mean not more than 15% of such tenant's gross sales.
of general dentistry and/or special dentistry (including, without limitation, orthodontics, pediatric dentistry, of space in the Shopping Center.
[PRIOR TO LEASE EXECUTION, LANDLORD TO CONFIRM THAT THE FOREGOING LIST
IS A COMPLETE AND ACCURATE LIST OF ALL PROHIBITED, RESTRICTED AND EXCLUSIVE USES AFFECTING THIS LEASE AND THE PREMISES]
Exhibit "T" Union Landing Shopping Center/
377172.00006/4919-0168-5109.2 -1- Shops Lease / Inverness Management