Page 1 E-FILED
7/6/2020 8:25 PM
Clerk 9f court
Superior Court of CA,
County 0f Santa Clara
Daniel L. Goodkin, Esq. (SBN 131347)
Emall. dgoodk1n@goodk1nlaw.com
Allison J. Law, Esq. (SBN 307891)
Email: alaw@goodkinlaw.com
20Cy
GOODKIN LAW GROUP, APC
ReVIewed By:
.
.
.
_
I
R. Tlen
1800 Century Park East, 10th Floor
Los Angeles, California Telephone: (310) 552-Facsimile: (3 1 0) 943- 1 Attorneys for
FRIT
Plaintiff,
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC,
a California limited liability
company
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA — DOWNTOWN SUPERIOR COURT
FRIT
SAN JOSE TOWN AND COUNTRY
VILLAGE, LLC,
CASE No.
200V
a California limited liability
company,
COMPLAINT FOR BREACH 0F LEASE
Plaintiff,
[Unlimited Civil]
VS.
TESLA MOTORS, INC., a Delaware
corporation; and DOES 1 through 100,
inclusive,
Defendants.
Plaintiff FRIT
SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC, a
California limited
liability
company
(“Plaintiff’ or “‘Landlord”)
hereby complains and alleges as follows:
PRELIMINARY ALLEGATIONS
A.
The
1.
At
Parties
all
times mentioned herein, Plaintiff was and
is
now
a California limited liability
company, qualified
t
and lawfully doing business
in the
County 0f Santa Clara,
State 0f
California.
2.
Plaintiff alleges,
on information and
belief, that at all
10132.
COMPLAINT
times mentioned herein,Page 2 Defendant
TESLA MOTORS,
INC. (“Tenant”) was and
is
a Delaware corporation, With
its
principal place 0f business located at the Premises (defined below).
The leased premises which
3.
are the subj ect 0f this matter are located in the
of Santa Clara, State 0f California and are commonly known by the
Row,
Suite 1035,
San
The
4.
Jose,
true
who
named
capacities,
herein as
therefore sues such defendants
shall collectively
by such
through 100, inclusive, are
Does
fictitious names.
unknown
to Plaintiff,
through 100, and Tenant
be referred to as “Defendants.” Plaintiff alleges, 0n information and
belief, that
through 100, inclusive, are in some manner responsible and 0r liable for the damages
Does
and/or action alleged herein. Plaintiff will
names and
ascertained.
Whether individual, corporate, associated 0r
Does
333 Santana
CA 95128 (the “Premises”).
names and
otherwise, 0f defendants
street address 0f:
County
capacities of such fictitiously
5.
amend this Complaint
named
defendants
When
on information and belief that
Plaintiff alleges
now is
t
show and/or add
the identity 0f the
at all
the true
same has been
times mentioned herein, each
0f the Defendants was and
each 0f the other defendants, and in doing the things hereinafter mentioned, was acting Within the
scope 0f his/her authority as such agent, servant, employee, representative and/or
the permission and consent of the remaining defendants.
6.
Plaintiff alleges,
the agent, servant, employee, representative and/or alter ego of
0n information and
alter ego,
with
Defendants are jointly and
belief, that
severally liable for the claims asserted herein in that each bears
0f action asserted herein.
some
responsibility for the causes
and Venue
B.
Jurisdiction
7.
Section 17.21 0f the Lease (defined below) provides that “This Lease shall be
construed, and
accordance With the laws 0f the
8.
all
disputes, claims,
and questions arising hereunder
state
Within which the Village
is
shall
located.”
Section 17.22 0f the Lease (defined below) provides that
manner
“Any
dispute relating in any
occupancy 0f the Leased Premises, and/or any claim 0f injury 0r damage
10132.
t0 the Lease, the relationship
COMPLAINT
be determined, in
action involving a
0f Landlord/Tenant, the use or
shall
be filed andPage 3 adjudicated solely in the state 0r federal courts of the jurisdiction in Which the Leased Premises are
located.”
Jurisdiction over Defendants
9.
is
proper pursuant to California Code of Civil
Procedure section 410. 10.
This Court has general personal jurisdiction over Tenant because, on information
10.
and
belief,
Tenant
is
qualified t0 do business in California, Tenant has had substantial and
continuous business contacts With California, the Plaintiff damaged by Tenant’s actions
California limited liability
company qualified
to
a
is
do business in California, and Tenant agreed
to
personal jurisdiction in the Lease.
Venue
11.
is
proper in this County pursuant t0 California Code of Civil Procedure
section 393, et seq., because Defendants transact business within this County, and because the
Lease Which
is at
the heart of this matter
was made and
t
be performed in
this
County.
FACTUAL ALLEGATIONS
A.
The Lease
12.
On
or about
November
3,
2020, Landlord, as landlord, and Tenant, as tenant,
entered into that certain written Lease Agreement (together With any and
amendments, and/or other modifications, as applicable, including those described below, the
“Lease”) for the Premises, which are defined With further particularity in the Lease, located in the
mixed use
together with any and
applicable,
13.
proj ect
is
known
as Santana
ROW
A true and correct copy 0f the Lease,
attached hereto as Exhibit
is
currently the
owner 0f the Premises and holds
all
as
right
and
title
as
landlord under the Lease.
B.
The Applicable Lease Provisions
14.
Section 1.02.1 0f the Lease defines “Rent” as
15.
Section 5.01.A 0f the Lease provides that “Tenant shall pay
“Minimum Rent plus
Additional
Rent.”
etc.,
A and is fully incorporated herein by this reference.
addenda,
addenda, amendments, extensions, and any other modifications,
all
Landlord
(the “Village”).
all
all
Rent
t0 Landlord,
without prior notice or demand and Without offset, deduction or counterclaim whatsoever, in the
10132.
COMPLAINTPage 4 amounts,
manner
at the rates
and times
set forth in this
set forth herein, prorated for
any
partial calendar
month, in the
Section 5.01 .A.”
Minimum Rent
i.
Section 5.02 0f the Lease provides that “Tenant shall pay Landlord the
16.
Minimum
Rent in equal monthly installments, in advance, commencing 0n the Rent Commencement Date,
and on the first day 0f each and every calendar month thereafter throughout the Term.”
The amount of Minimum Rent payable by Tenant during
17.
set forth in
was
Section 1.01 .F of the Lease. See Exhibit A.
At
18.
the term 0f the Lease
all
relevant times mentioned herein, the
Minimum Rent owed by Tenant was
$43,084.02 per month.
Additional Rent
ii.
Section 1.02.H 0f the Lease defines “Additional Rent” as “A11 sums payable by
19.
Minimum
Rent, Whether as reimbursement 0r
Tenant t0 Landlord under the Lease, other than
otherwise, and regardless of whether denominated as ‘Additional Rent.
Section 7.01.A 0f the Lease provides that “Tenant shall pay,
20.
for water, sewer, electricity, gas, telephone service
Premises (‘Utility Charges’).”
”’
and other
utilities
When
due,
all
charges
supplied t0 the Leased
Further, Sections 7.01.C, 7.01.D, and 7.01.E of the Lease require Tenant t
21.
pay
for
Tenant’s share of Condenser Water Costs, Tenant’s Condenser Water Equipment Charge, and
Tenant’s Sprinkler Charge, respectively. At
Condenser Water System owed by Tenant totaled $583.85 per month, and the Tenant’s Sprinkler
Charge owed by Tenant totaled $1 16.77 per month.
Section 2 0f Exhibit
22.
services are] furnished or billed
as Additional Rent.”
iii.
23.
relevant times, the contribution related to the
D t0 the Lease further provides that “[i]f [trash removal
by or through Landlord, Tenant
shall
pay for such service monthly
Tenant’s Default and Landlord’s Remedies
Section 16.01 0f the Lease provides that a Default by Tenant occurs upon
“Tenant’s failure t0 pay, 0r
10132.
all
make
available as required
by
COMPLAINT
this Lease,
any Rent (or any installmentPage 5 thereof) within
five
(5)
and payable, however,
thereafter
Tenant
shall
days after Tenant receives notice from Landlord that the same
if
it
past due
twice within any twelve (12) month period, then
if Landlord gives notice
be in Default
is
pay any Rent within five
fails t
(5)
days after same
is
due and payable Without the necessity 0f further notice.”
Section 16.02 goes on to provide that “If a Default occurs, Landlord shall have
24.
the rights and remedies provided in this Section 16.02., in addition tavailable under this Lease 0r provided at law or in equity,
Which
all
rights
all
other rights and remedies
may be
exercised
cumulatively”.
C.
The Default
25.
Notwithstanding the provisions 0f the Lease, commencing in 0r around June 2020,
and continuing
amount of $83,573.80.
26.
to date,
in
Rent
Tenant failed to pay
Accordingly, as of June
1,
all
rent that
27.
On
Rent”).
E and incorporated herein fully by this reference.
Furthermore, Plaintiff anticipates that Tenant Will continue t
that Plaintiff Will accordingly incur daily
amount of at
least
damages
for each
$1,439.50 per day, commencing July
D.
The Attornevs’ Fees Provision
29.
Section 17.04 of the Lease provides that:
1,
day
that
Tenant
until the
fail t
fails t
Landlord 0r Tenant institutes any suit against the other in
connection With the enforcement 0f their respective rights under this
If
Lease, the Violation of any term 0fthis Lease, the declaration oftheir
rights hereunder, 0r the protection of Landlord’s 0r Tenant’s interest
under
this
Lease, the non-prevailing party shall reimburse the
prevailing party within
five
(5)
days of demand for
its
reasonable
expenses incurred as a result thereof including court costs and
reasonable attomeys’ fees, even if Tenant pays past due Rent prior
t0 the rendering
0f any judgment.
10132.
COMPLAINT
pay Rent and
pay Rent
time ofjudgment.
M
demanding
A true and correct copy 0f such letter is attached hereto as
payment of the Past Due Rent.
28.
Due
or about June 15, 2020, Landlord’s counsel sent a letter to Tenant
the Lease in the total
2020, there existed an arrearage in the total amount of
$83,573.80 due and owing under the Lease (the “Past
became due under
in thePage 6 30.
Plaintiff has retained the
law
firm
of Goodkin
Law
Group,
APC t0 protect its rights
under the Lease and has incurred and will continue to incur an unascertained amount of attorneys’
fees
and
costs. Plaintiff Will
seek those amounts
at the
time of trial.
FIRST CAUSE OF ACTION
(For Breach 0f Lease for Failure t0 Pay Rent against Tenant and Does 1-100)
1.
Plaintiff hereby incorporates paragraphs
through 30, as
if set forth fully
herein
and realleges each paragraph by reference.
32.
As
set forth
above, Plaintiff and Tenant are parties to the Lease whereby Tenant
leased the Premises in consideration for
33.
Tenant
in default 0f the
obligations set forth therein.
Lease for failure to pay Rent, as required under the
Lease, in the total amount 0f $83,573.80 as of June
34.
1,
(the “Past
Due
Rent”).
Further, Plaintiff anticipates that Tenant Will continue t0 fail to
Plaintiff will further
1,
be damaged in the amount 0f at
least
pay Rent and
that
$1,439.50 per day commencing on July
2020.
is
all rental
35.
On the
other hand, Plaintiff has performed
all
0f its obligations under the Lease
except those that have been prevented 0r excused by the acts of Defendants and/or third parties.
36.
As
a legal and proximate result of Tenant’s conduct and the resulting breach of the
Lease, Plaintiff has sustained or Will sustain foreseeable damages, in the amount of $83,573.80 in
Past
attorneys’ fees, costs,
0f trial.
Due
Rent, at least $1,439.50 per day
37.
and legal
By reason
commencing 0n July
interest as permitted
1,
2020, plus other sums 0f
under the Lease,
damages and other charges owed under the Lease,
Which
California law, as well as attorneys’ fees and other costs as permitted
California law,
//
//
10132.
according to proof at time
0f the foregoing, Plaintiff is entitled to recover from Defendants
is
all
in
an amount according to proof at
trial
but
estimated t0 exceed $83,573.80 plus interest thereon as permitted by the Lease and by
all
according to proof at time of trial.
COMPLAINT
by
the Lease and
byPage 7 WHEREFORE, Plaintiff prays
On A1.
for judgment against Defendants as follows:
Causes of Action:
For compensatory damages according to proof but Which Plaintiff estimates
total
$83,573.80 comprised 0f the Past
$1,439.50 per day commencing July
1,
Due Rent
as
0f June
1,
2020, and
t
at least
2020, less any partial rent payments
received before the time ofjudgment, together With interest at the
maximum
allowable legal rate;
2.
For Plaintiff s reasonable attorneys’ fees in a sum
to
be established by
post-trial
motion;
incurred herein; and
3.
For the costs 0f the
4.
For such other and further
suit
relief as the court
deems
proper.
DATED:
GOODKIN LAW GROUP, APC
July 6,
I
3%
By:
fl[/
l
-/,/L#x/
Uaniel L. G/oodkin, Esq.
Allison
J.
Law, Esq.
Attorneys for
FRIT
Plaintiff,
SAN JOSE TOWN AND COUNTRY
VILLAGE, LLC
a California limited liability
10132.
COMPLAINT
companyPage 8 EXHIBIT APage 9 LEASE AGREEMENT
BETWEEN
FRIT
SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC,
LANDLORD
AND
TESLA MOTORS,
DATE;
ARTICLE
I
INC.,
NOVEMEER
TENANT
5,,
MW
........................................................................................................................
REFERENCE PROVISIONS, DEFINITIONS AND EXHIBITS
ARTICLE
ll
ARTICLE
III
ARTICLE
[V ........................................................................................................................
AND OPERATION OF THE LEASED PREMISES .....................................
ARTICLE V ........................................................................................................................
TERM
.....................................................................................................................
USE
RENT
......................................................................................................................
ARTICLE
VI ........................................................................................................................
ARTICLE
VII
ARTICLE
VIII
COMMON AREAS
................................................................................................
........................................................................................................................
CONSTRUCTION AND ALTERATIONS
..........................................................
ARTICLE X ........................................................................................................................
AND LANDLORD'S ACCESS ..........................
ARTICLE XI ........................................................................................................................
REPAIRS, MAINTENANCE,
CASUALTY
XII
ARTICLE
XIII
INDEMNITY AND INSURANCE .......................................................................
ARTICLE IX ........................................................................................................................
.........................................................................................................
l
........................................................................................................................
2]
INTENTIONALLY DELETED ............................................................................ ARTICLE XIV ........................................................................................................................
SUBORDINATION AND ATTORNMENT ........................................................ ARTICLE XV ........................................................................................................................
ASSIGNMENT AND SUBLETTING .................................................................. ARTICLE XVI ........................................................................................................................
DEFAULT AND REMEDIES .............................................................................. ARTICLE XVII ........................................................................................................................
MISCELLANEOUS PROVISIONS
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27Page 10 LEASE AGREEMENT
fig
TOWN AND COUNTRY
This Lease Agreement (the “Lease")
2010, by and between
limited liability
FRIT SAN JOSE
company, by
is
made
this
day of
NDVCMb‘CX-
VILLAGE, LLC,
,
a California
managing member, STREET RETAIL, INC, a Maryland
TESLA MOTORS, INC, a Delaware corporation (“Tenant”).
its
corporation ("Landlord"), and
IN CONSIDERATION of the payments of rents and other charges provided for
herein
and the covenants and conditions hereinafter set forth, Landlord and Tenant hereby covenant
and
agree as follows:
ARTICLE
I
REFERENCE PROVISIONS DEFINITIONS AND EXHIBITS
As used
in the
Section 1.01.
A.
square
Lease, the following terms shall have the following meanings.
Reference Provisions.
Leased Premises: Approximately one thousand eight hundred sixty-four
commonly known
(I
,864)
#3035 cross-hatched on the attached Exhibit A, located at
Stevens Creek Boulevard and Winchester Boulevard, San Jose, California
95128, and as defined
in Article II. As used herein, the “Building” means the
separate building number 3 ofthe Village
in which the Leased Premises is located.
feet,
as Store
B.
Term: Ten (10) Lease Years, commencing on the Term Commencement
Date,
and ending on the Termination Date.
C.
Term Commencement
Date: The date Landlord delivers the Leased Premises to
Tenant with any Landlord’s Work substantially complete (i.e., subject
only to “punchlist” items).
Landlord presently anticipates that the Term Commencement Date
will occur on about February
l, (the “Anticipated Delivery Date”), which Anticipated Delivery
Date shall be extended on
a day-for-day basis for (a) each day beyond October
15, 2010, that this Lease is not fully
executed and delivered, (b) any Tenant Delay (as defined in Exhibit
and
l
B),
(c) the factors set
forth in Section l7. l 3.
Landlord shall provide Tenant with Notice that Landlord is prepared to
deliver the Leased Premises and, within three
(3) days of Tenant’s receipt of such Notice, each
of Landlord and Tenant shall make a representative available to
perform a walk-through of the
Leased Premises, the purpose ofwhich walkthrough shall be confined to
establishing a written
“punchlist,” to be signed by each of Landlord and
Tenant at the conclusion 0fthe walkthrough.
The conclusion 0f the walkthrough shall constitute delivery of possession and
the Term
Commencement Date shall then occur, provided that the incomplete items are “punchlist”
items (i.e., capable of being completed by Landlord within
thirty (30) days without material
interference to Tenant). Any items noted on the “punchlist” shall
be corrected by Landlord as
soon as reasonably practicable, but in no event later than thirty
(30) days following the Term
Commencement
Date. In the event that certain elements of Landlord’s Work
remain
incomplete and the expected duration 0f completion exceeds thirty
(30) days, the Term
Commencement Date shall be extended on
a day-for-day basis until such time as the same
are either complete or capable of being completed within
thirty (30) days.
D.
Rent Commencement Date: The earlier of (i) the date Tenant opens for business
from the Leased Premises, or (ii) seventy-five (7S) days afier the later
to occur of
(l) the Term
Date, (2) the date that Tenant’s Building Permits (as defined in Addendum
V)
have been issued, provided that Tenant shall “diligently pursue” the issuance
of the same (as such
Commencement
term
is
defined
E.
Lease
is
in Article V).
Termination Date: The
terminated
F.
last
day of the Term, or the
earlier date
on which
this
accordance with the provisions hereof.
in
w
Minimum
Rent:
Lea;
Annually
Monthly
l
$206,000.
$ 1 7, l 66.
$21 2,] 80.
$ l 7,68 1 .
$2 I 8,545.
$1 8,212.
D - MALEGALI \PROPERTY\SANTANA\T§II (Execution Copy)‘docx
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Page
lPage 11
$225, 102.
$231,855.
$19,321.
$238,810.
$19,900.
$1 8,758.
$245,975.
$20,497.
$253,354.
$21,] 12.
$260,955.
$21,746.
lO
$268,783.
$22,398.
G.
Intentionally deleted.
H.
Intentionally deleted.
l.
Intentionally deleted.
J.
Annual Sprinkler Charge (to be paid monthly with Minimum Rent): $466 per
annum, or $38.83 per month, based upon $0.25 per square foot ofFloor Area
(as defined below)
ofthe Leased Premises.
K.
Intentionally deleted.
L.
Annual Condenser Water Equipment Charge (to be paid monthly with Minimum
annum, or $194. 7 per month, based upon [$1 .25 per square foot of Floor
Rent): $2,330.00 per
Area ofthe Leased Premises].
M.
Security Deposit:
N.
Permitted Use: The operation of a first-class
branded electric
Twenty Thousand and
00/1 00 Dollars ($20,000.00).
showroom
for the sale
ochnant-
and for the incidental sale ofrelated merchandise and logo-bearing
accessories. [n addition, Tenant shall be permitted to use the Leased
Premises for the periodic
hosting of marketing and charitable events. The Leased Premises
shall be used for
cars,
no other
purpose whatsoever, and
set forth in
be subject to the existing "exclusive uses" and "prohibited uses"
Exhibit F attached hereto (collectively, the "Use Restrictions").
Such Use
shall
Restrictions are provisions from other
documents afiecting the Village and the Commercial
Portion, including other tenants’ leases, and shall be
O.
(i)
Saturday, 10:
Monday through
Store Hours:
A.M.
to 10:00 P.M.;
deemed
to bind Tenant but not Landlord.
Thursday, 10:00 A.M. to 9:00 P.M.; Friday and
and Sunday, 10:00 A.M. to 6:00 P.M., subject to the
provisions of Section 4.01.
(ii) Normal Village Hours: Monday through Thursday, 10:A.M. to 9:00 P.M.;
Friday and Saturday, 10:00 A.M. to 10:00 P.M.; and Sunday, 11:00 A.M. to
6:00 P.M.
P.
Rent Payments: Rent payments due herein
FRIT
shall
be
made payable
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC
-
to Landlord at:
Property
c/o Federal Realty Investment Trust
P.O.
Box
City of Industry,
Q.
CA
91 716-
Notice Addresses:
TO LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY VILLAGE, LLC
c/o Federal Realty Investment Trust
1626 East Jefierson Street
20852-
Rockville,
MD
Attention: Legal Department
TO TENANT:
TESLA MOTORS,
INC.
3500 Deer Creek Road
Palo Alto, CA Attention: George Blankenship
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Page 2Page 12 project
R.
Commercial Portion: That
known
as Santana
certain
Row (the “Village”),
commercial portion ofthat certain mixed use
located in San Jose, California.
The Village
contains a residential portion (the “Residential Portion”) adjacent to and/or above some ofthe
Commercial Portion. The Residential Portion is controlled separately fiom the Commercial
Portion and for purposes ofthis Lease shall not be
deemed to be a part of the Commercial
understood and agreed that the Commercial Portion shall be comprised ofall
portions of the Village other than the Residential Portion.
Portion.
It is
S.
Trade Name: Tesla, subject to the provisions of Section 4.02.
T.
Exhibits and Addenda:
incorporated in and
Exhibit
made a
part
A
The following
exhibits and
addenda are hereby
of the Lease.
Site Plan
B
Exhibit C
Exhibit
Landlord and Tenant Improvements
Signage Criteria
Exhibit
D
Rules and Regulations
Exhibit
E
Gross Sales Statement Form
Exhibit F
Use
Addendum I
Addendum II
Addendum III
Addendum IV
Addendum V
Asbestos Containing Material
Section 1.02.
Restrictions
Construction Allowance
Termination Rights
Tenant’s Parking/Charging Area
Lease Contingency
Definitions.
Common
A.
Any existing or future improvements, equipment, areas and/or
common and joint use or benefit of Landlord, Tenant and other
Areas:
spaces for the non-exclusive,
tenants, occupants
and users of the Commercial Portion; provided, however, the Common Areas
used by residents and invitees of the Residential Portion upon such terms
and conditions
as shall be established by the Declaration (as hereinafler defined in
Section
may be
17.25).
Common
roads,
all
The
Areas include, without limitation, sidewalks, roofs, gutters and downspouts, all
private
parking areas (surface and subsurface) except for those parking areas,
escalators and
elevators exclusively serving the Residential Portion, access roads,
driveways, landscaped areas,
service drives and service roads, traffic islands, loading and service
areas, stairs, ramps,
elevators, escalators, comfort
and first aid
stations, public
washrooms,
central
HVAC plant
and/or condenser water distribution system, and other similar areas and
improvements.
B.
“pad
sites”, (ii)
Major Tenants: Those tenants in the Commercial Portion leasing
(i) so-called
space with a Floor Area of fifieen thousand (15,000) square feet or more, or
(iii)
space to use as a specialty grocery store operation, regardless of the size of the
space so leased.
C.
Floor Area: For the Leased Premises, the
number of square feet set forth in
remeasurement as provided below in this paragraph. For any
Commercial Portion, the number of leasable square feet as determined
by
Section 1.01 .A., subject to
other space in the
Landlord, excluding
(i)
any square footage comprising the Commercial Portion which
separately leased by other tenants or occupants of the
purposes, and
(ii)
any hotel which
may
Commercial Portion exclusively
be part of the Village.
Upon
is
for storage
written request from
Tenant within sixty (60) days from the date of Landlord’s delivery of possession of the
Leased Premises to Tenant, Landlord and Tenant hereby agree that within thirty
days
(30)
after Landlord’s receipt of Tenant’s written request, a representative of each
party shall
jointly field measure the Leased Premises to determine the exact square footage. Such
field
measurement
made from the outside of exterior walls and from the centerline of
The Minimum Rent and Tenant’s Floor Area set forth in Section
1.01.A. shall be adjusted in accordance with the new measurement of the square
footage.
Landlord and Tenant shall execute a letter agreement setting forth the new square footage
shall be
interior demising walls.
and adjusted Rent.
If Tenant fails to timely request measurement of the Leased Premises,
then the square footage set forth in Section 1.01 of this Lease shall be deemed accurate and
accepted by Tenant.
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maximum
A rate per annum ofthe lesser of (i) ten
Interest:
percent (10%) or
(ii)
the
permitted by law.
E.
Lease Year:
Commencement
Each twelve (12) month period beginning with the Term
Date, and each anniversary thereof, provided the Term Commencement Date
occurs on the first day of a month. If the
Term Commencement Date occurs on a day other than
the first day of a month, then the first Lease Year shall begin on the first
day of the month
following the Term Commencement Date.
Lease Year:
F.
Partial
G.
Person:
Any
period during the
Term which
is less
than a
full
Lease
Year.
company, or any other
An
individual,
firm, partnership, association, corporation, limited
liability
entity.
H.
Additional Rent: All sums payable by Tenant to Landlord under the Lease, other
than Minimum Rent, whether as reimbursement or otherwise, and regardless
of whether
denominated as “Additional Rent”.
I.
Rent:
Minimum Rent
J.
Intentionally deleted.
K.
Intentionally Deleted.
plus Additional Rent.
L.
Legal Requirements: All laws, statutes, orders, ordinances, zoning and
other
regulations and ordinances of federal, state, county, municipal and other
governmental authorities
having jurisdiction.
ARTICLE
II
LEASED PREMISES AND THE VILLAGE
Section 2.01.
Leased Premises.
Landlord demises and leases to Tenant, and Tenant leases from Landlord, the
Leased
Premises, including any loading dock designated exclusively for Tenant’s
use. Landlord has the
exclusive right to the exterior faces ofthe exterior walls ofthe Leased
Premises and the Building
(excluding Tenant‘s storefront). In order to service the Common Areas
and/or other occupants of
the Village, Landlord reserves the right to install, maintain,
use, repair and replace pipes, ducts,
cables, conduits, plumbing, electrical systems, HVAC, vents,
utility lines and wires and other
system components that run to, in, through, above and below the Leased Premises
and
other parts
of the Building, the Commercial Portion, and the Village. Landlord shall use
reasonable efforts
in the exercise of such rights to not materially interfere
with Tenant’s business operations in the
Leased Premises.
Notwithstanding anything to the contrary contained herein, Landlord shall locate
conduits, wires and other materials or facilities which serve the Village
and pass
th rough the Leased Premises above the dropped ceiling
of the Leased Premises, in the walls
next t0 columns, under the floors, or in other locations hidden from view.
Any change in
all pipes,
said pipes. conduits, ducts, wires
and other materials shall be performed by Landlord at its
and expense unless the same is required or caused by the conduct of the Tenant, in
which event Tenant shall reimburse Landlord the reasonable cost thereofwithin ten
(10)
days after receiving Landlord‘s invoice therefor. Landlord shall perform all work within
the Leased Premises pursuant to this Article II in such a manner so as to not
materially
sole cost
interfere with Tenant‘s use
and operation 0f the Leased Premises.
lf the exercise of the foregoing rights materially and substantially
interferes with the
operation of Tenant’s businws to the extent Tenant is unable to operate its business in the
Leased Premises for a period of forty-eight (48) or more consecutive hours, then Tenant’s
sole and exclusive remedy shall be an abatement of all Rent and other charges for
the total
period of time Tenant
is
unable to operate
its
business in the Leased Premises.
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III
TERM
Section 3.01.
Term.
The Term of this Lease shall commence on the Term Commencement Date and expire on
the Termination Date. This Lease shall terminate on the Termination Date without the necessity
ofNotice from either Landlord or Tenant. Upon the Termination Date, Tenant shall quit and
surrender to Landlord
ordinary wear and
foregoing,
all
(i)
the Leased Premises, broom-clean, in
tear excepted,
and
(ii) all
good order and condition,
keys for the Leased Premises. Notwithstanding the
obligations of the parties, as set forth in this Lease, shall be binding as ofthe date
Upon request from Landlord, Tenant shall sign a certificate setting forth the Term
Commencement Date, the Rent Commencement Date and the Termination Date.
hereof.
Section 3.02.
Holding Over.
If Tenant fails to vacate the Leased Premises on the Termination
Date, Landlord shall
have the benefit of all provisions of law for speedy recovery of possession ofthe Leased
Premises and for damages (including
lost business), subject to the terms of this Lease.
the Termination Date (“Holdover Occupancy”) shall be a tenancy at will, and
shall be subject to all terms, covenants, and conditions ofthe Lease, except
that the daily
Occupancy afier
Minimum Rent for each day that Tenant holds over (“Holdover Minimum Rent”) shall
and one-half (1-1/2) times the daily Minimum Rent payable in the last Lease Year.
equal one
Notwithstanding anything to the contrary in the foregoing, the Holdover Minimum
be applicable (i) in the event Tenant is holding over with Landlord’s written
consent, in which event the tenancy shall be a month-to-month tenancy subject to
all of the
terms, conditions and covenants of the Lease; or (ii) during the sixty
(60) days following the
Termination Date if Landlord and Tenant are negotiating an extension of the Lease in good
faith during such sixty (60) day period.
Rent
shall not
ARTICLE IV
———————————
Section 4.01.
A.
Continuous Qggration by Tenant.
Tenant
Commencement
Date;
shall:
(ii)
(i)
open the Leased Premises for business on the Rent
all times in the Leased Premises a full stock of
merchandise;
carry at
employ reputable business standards and practices; and (iv) subject to the provisions of
Section 4.03, operate the entire Leased Premises continuously and uninterruptedly during
the
Term. Tenant shall use for storage and ofiice space only those areas indicated for such use on
Tenant’s plans approved by Landlord.
(iii)
B.
Notwithstanding anything to the contrary contained in Section 4.01.A.,
Tenant shall be permitted to be closed for two (2) non-consecutive days in each Lease Year
for restocking and inventory purposes, and one (1) seven
(7) day period during the Term
for renovations or necessary repairs; provided Landlord
prior written notice in each instance.
is
given at least thirty (30) days’
C.
Tenant shall have the right
D.
Subject to the provisions of Section 4.03, Tenant’s violation ofthis Section 4.an immediate Default, and in addition to (i) any other rights and remedies
to remain closed on Thanksgiving Day,
Christmas Eve, Christmas Day, New Year's Day, July 4'“ and Easter Sunday, and not more
than two (2) other days per year (in addition to the days Tenant is permitted to be closed
under Section 4.01.8. above), provided Landlord is given reasonable advance written
notice of such days.
shall constitute
available to Landlord, and
(ii)
Rent, Tenant shall pay to Landlord, upon demand, liquidated
damages (and not as a penalty) equal
to
twenty-five percent (25%) of the daily Minimum Rent
otherwise payable for each day such violation continues up t0 a maximum ofthree
hundred sixtyfive (365) consecutive days. Payment of such sums shall be only a partial and temporary
remedy
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Page 5Page 15 and shall not relieve Tenant of any obligation under the Lease, excuse any default
or waive Landlord's other remedies. Tenant acknowledges and agrees that if it breaches Section
4.01 .A., Landlord shall be deprived of an important right under this Lease, and as a result will
for Landlord,
damages in an amount which is not readily ascertainable, and that the foregoing liquidated
damages are a reasonable and equitable determination of Landlord’s actual damages resulting
suffer
from Tenant’s breach.
Use and Trade Name.
Section 4.02.
Tenant shall use the Leased Premises solely for the Permitted Use, and shall operate
business in the Leased Premises solely under the Tenant Trade Name.
Tenant
to
be used,
in
its
shall not use the
any manner or
Leased Premises, or permit the Leased Premises (or the Building)
for purposes which are prohibited by Legal Requirements or
by
covenants, conditions, declarations, limitations, easements or restrictions now or hereafier of
record which are applicable to the Village, without the prior written consent of Landlord, which
may be withheld
Landlord’s sole discretion. Tenant acknowledges and agrees it is solely
responsible for determining if its business complies with the applicable Legal Requirements,
and
Landlord makes no representation (explicit or implied) concerning such Legal Requirements.
in
Notwithstanding the foregoing, Tenant may, without Landlord’s consent, change
Trade Name to a name being used by Tenant for the operation of its electric car
production business or as a model name for its automobiles, so long as
(i) concurrently
therewith the trade name of substantially all other similar stores owned, operated or
the Tenant
controlled by Tenant and
same trade name,
(ii)
its
affiliates in the United States shall likewise be
changed to the
not conflict with the trade name of any other
Tenant pays the cost of all necessary Sign changes
such trade
tenant in the Village, and
(iii)
name does
throughout the Village.
Tenant agrees
provide Landlord at least thirty (30) days’ prior written notice of
to submit to Landlord for approval plans and specifications for such
sign prior to the installation of a new Sign.
the
to
name change and
Section 4.03.
Tenant
Store Hours.
shall
conduct
business
in the Leased Premises continuously during the Store
Hours. Notwithstanding anything contained herein to the contrary, Tenant shall have no
obligation to be open for business during the Store Hours specified in Section
1.01(N)
unless tenants occupying at least seventy-five percent (75%) of the retail Floor Area
with
its
storefront entrances facing the mall on Santana
Row
(excluding
Major Tenants)
shall
be
open during such hours and/or days.
Section 4.04.
A.
Signs and Advertising.
Prior to the Rent
Commencement
identification sign (“Sign“ or “Signs”).
The
Date, Tenant shall install a storefront
design and manner of installation of all Signs,
including but not limited to said Sign(s), shall be subject to Landlord’s prior written approval.
Tenant shall submit reasonably detailed drawings of all proposed Signs for Landlord’s review
and written approval prior
foregoing,
size,
to installation or utilization
of said Signs. Notwithstanding the
Tenant may be permitted the maximum exterior signage permitted by the City
of San Jose.
B.
Tenant
shall not place Signs
on the doors, windows, roof or exterior of the Leased
lettered Signs and flashing Signs visible from
the Common Areas are prohibited. Any Signs within two feet (2’) ofthe storefront of
the Leased
Premises must: (i) be (a) professionally designed and manufactured, and (b) used in substantially
all ofTenant’s (and its afiiliates’) stores operating under the Trade Name;
(ii) not flash, blink or
Premises, or in any display
window
space.
otherwise light in an alternate fashion;
(iii)
Hand
not individually exceed two feet (2’) by three feet (3’)
aggregate exceed more than one-third (1/3) of the glass portion ofthe storefiont;
and (iv) not be taped or affixed to the glass of the storefront windows or doors. Signs may be
mounted on plexiglass and hung with thin wire behind the storefront or displayed on an easel.
in size,
or
in the
minimum of twelve inches (12”) behind the
Notwithstanding the foregoing, Tenant shall have the right to display its customary
seasonal and promotional display signs within the Leased Premises. Notwithstanding the
All Signs within the storefront must be located a
glass.
provisions set forth herein including Exhibit C, Tenant will be permitted to apply Tenant’s
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Page 6Page 16 standard storefront logo signage in small vinyl or painted letters on the storefront glass
provided such signage is consistent with Tenant’s other locations and such signage dow not
exceed six inches (6”) in height; provided, however, that until such time as Tenant has
opened other locations, the same
C.
which
shall be subject to Landlord’s reasonable approval.
Landlord may, upon Notice to Tenant and at Tenant’s sole risk, remove any items
of this Section 4.04. Tenant shall maintain all Signs in first class
violate the provisions
condition, operating order and repair. If Tenant fails to repair any of its
than three (3) business days following Notice from Landlord, Landlord
Tenant's sole cost and expense, unless such
damage
is
damaged Signs
may make
of such a nature that
it
for
more
such repairs at
cannot
reasonably be repaired within such five (5) days, in which case Tenant must commence
such repair within said five (5) days and diligently pursue said repair to its completion.
Section 4.05.
Tenant’s Use
Of Roof.
INTENTIONALLY DELETED.
Section 4.06.
Retail Restriction Limit.
Tenant, or
ofi'lcers, directors,
members, affiliates and partners, shall not directly or
manage, or have any interest in any other store, showroom or business
carrying the same or similar merchandise and operating under the same or a similar
trade name as
the Trade Name (a “Violating Store”) (a) during the first five
Lease
within
Years,
five (5)
(5)
miles ofthe Village, and (b) fi‘om and afier the first day ofthe sixth (6m) Lease
Year, at that
certain shopping center presently known as “Valley Fair Mall” and located
at 2855 Stevens
Creek Blvd., Santa Clara, CA (or on any adjacent property owned or controlled
by the party that
owns or operates such shopping center (or any affiliate of such party)). If this covenant is
its
indirectly operate,
breached, as Landlord’s sole and exclusive remedy therefor, Tenant shall commence
the
immediate (i.e., not subject to any cure periods) payment to Landlord, upon
demand, of
liquidated damages (and not as a penalty) in an amount equal to
(i) the daily Minimum Rent
otherwise payable for each day such violation continues ifthe same shall occur
during the first
three (3) years following the Rent
Commencement Date, or (ii) fi’om and afier the first day ofthc
Commencement Date through the end ofthe Term, thirty
Minimum Rent otherwise payable for each day such violation
fourth (4m) year following the Rent
percent (30%) ofthe daily
continues. Tenant represents that by entering into this Lease
restriction
by which
it is
bound under any other
it
will not breach or violate
lease or agreement to
covenant shall not apply to an automobile service or maintenance
shall not sell or engage in the sale of motor vehicles.
any
any other Person. This
facility,
provided that the same
ARTICLE V
RENT
Section 5.01.
A.
Rent Payable.
Tenant
Rent to Landlord, without prior notice or demand and without
deduction or counterclaim whatsoever, in the amounts, at the rates and times set
forth
herein, prorated for any partial calendar month, in the manner set forth in this
Section 5.01 .A.
shall
pay
all
offset,
All payments 0f Rent shall be
made at the place set forth in Section 1.01. or as Landlord may
otherwise designate by Notice to Tenant. Tenant shall have no obligation to
separately
contribute to Landlord’s cost of maintaining the Common Areas, Taxes, or Landlord’s
insurance premiums.
B.
If Rent is not received within ten IO) days of the date such Rent is
(
due, Tenant
pay Landlord a late charge equal to Twenty Dollars ($20.00) per day from the due date until
the date of receipt by Landlord. Payment of such late charge shall not excuse
or waive the late
payment of Rent. Tenant acknowledges and agrees that such late charge is a reasonable estimate
ofthe damages as a result of Tenant's violations of this Section 5.01 .B. and that it would be
shall
impracticable or extremely difficult to determine Landlord's actual damages.
Notwithstanding anything to the contrary contained in the foregoing, no late charge
Rent shall be assessed against Tenant until five (5) days after written notice
from Landlord of Tenant’s failure to pay Rent. Notwithstanding the foregoing, if
for delinquent
Landlord
D
-
shall
have given Tenant written notice as
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set forth herein twice within
any twelve
Page 7Page 17 month
period, then thereafter no written notice shall be required from Landlord
before invoking the late charge provided for in this Section 5.01.8.
(12)
C.
If Landlord receives two (2) or more dishonored checks fiom Tenant, all
subsequent Rent checks for twelve (12) months following the date of the dishonored checks
shall be bank certified and Landlord shall not be required to accept
checks except in such form.
Tenant shall pay Landlord any bank service charges resulting fiom dishonored checks, plus
Twenty-Five Dollars ($25.00) for the first such dishonored check, and Thirty-Five Dollars
($35.00) for each such dishonored check thereafier, as compensation to Landlord for its
additional processing costs.
Any payment by Tenant of less than the total Rent due shall be treated as a
payment on account. Acceptance of any check bearing an endorsement, or accompanied
by a
letter stating, that such amount constitutes “payment in full”
(or terms of similar import) shall not
be an accord and satisfaction or a novation, and such statement shall be given no effect.
Landlord may accept any check without prejudice to any rights or remedies which
Landlord may
have against Tenant.
D.
E.
For any portion of a calendar month at the beginning ofthe Term, Tenant shall
pay in advance the pro-rated amount of the Rent for each day included in such portion ofthe
month.
Section 5.02.
Pament of Minimum
Tenant
shall
commencing on
Rent.
Minimum Rent in equal monthly installments, in advance,
Commencement Date, and on the first day ofeach calendar month
pay Landlord the
the Rent
thereafier throughout the Term.
Section 5.03.
Regorting ofGross Sales.
Tenant shall report Gross Sales, as that term
accordance with the provisions hereinafier set forth.
Section 5.04.
A.
is
hereinafier defined, to Landlord
in
“Gross Sales” Defined.
The term “Gross Sales” means
the actual prices charged, whether for cash or on
Tenant
and any sublessees, concessionaires and/or licensees from the
by
Leased Premises, including catalog, electronic and telephone sales and orders
taken in or from
the Leased Premises but filled elsewhere, all without credit to Tenant
for uncollected or
credit, for all sales
uncollectible credit accounts.
Each charge or sale upon installment or credit shall be treated as a
sale for the full price at the time such charge or sale is made,
regardless ofwhether or when
Tenant receives payment. Deposit amounts
shall
be included
in
Gross Sales when received.
B.
The following items shall be excluded from Gross Sales: (i) any exchange of
merchandise between stores ofTenant if not for the purpose of consummating a
sale from the
Leased Premises; (ii) returns to shippers 0r manufacturers; (iii) cash or credit
refunds to
customers on transactions otherwise included
Gross Sales, provided the full value attributed to
a trade-in item at the time the sale is included in Gross Sales;
(iv) all sums and credits received in
settlement of claims for loss or damage to merchandise;
(v) sales of trade fixtures and store
operating equipment afier use thereof; (vi) any government sales or excise
tax; (vii) discount
employees up
in
two percent (2%) of annual Gross Sales; and (viii) receivables reported
income tax purposes, up to two percent (2%) of annual Gross
Sales. No franchise tax, capital stock tax, tax based upon assets or net
worth, gross receipts tax,
or income or similar tax shall be deducted from Gross Sales.
sales to
to
as bad debt for federal and state
Section 5.05.
Within
Tenant
Statements of Gross Sales.
days following the end of each Lease Year or Partial Lease Year,
Landlord a written statement, certified to be complete and correct
by
thirty (30)
shall deliver to
Tenant, showing the amount of Gross Sales for such Lease Year or Partial Lease Year.
Section 5.06.
Records and Audits.
INTENTIONALLY DELETED.
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Taxes.
The term “Taxes” means
all governmental or quasi-govemmental taxes, fees, charges and
assessments (whether general, special, ordinary, or extraordinary) applicable to the Commercial
Portion directly or as the
same may be allocated under any declaration applicable to the Village
or hereafier of record, including leasehold taxes or taxes based upon the receipt of rent
(including gross receipts or sales taxes applicable to the receipt ofrent, unless required to be paid
now
by Tenant) and the Common Areas, together with all reasonable costs and fees (including
reasonable appraiser, consultant and attomey’s fees) incurred by Landlord in any tax contest,
appeal or negotiation. “Taxes” shall include, without limitation, any assessment, tax,
fee, levy or
charge in addition to, or in substitution, partially or totally, ofany assessment,
tax, fee, levy or
charge previously included within the definition of real property tax, it being acknowledged
by
Tenant and Landlord that Proposition l3 was adopted by the voters of the State of California in
the June 1978 election ("Proposition l3") and that assessments, taxes,
fees, levies and chargw
may be imposed by governmental
agencies for such services as fire protection, street, sidewalk
for other governmental services formerly provided
and road maintenance, refuse removal and
without charge to property owners or occupants, and, in further recognition of the decrease in
the
level and quality of governmental services and amenities as a result of Proposition
l3, Taxes
shall also include any governmental or private assessments or the Commercial Portion‘s
contribution towards a governmental or private cost-sharing agreement for the purpose of
augmenting or improving the quality of services and amenities normally provided
by
governmental agencies. “Taxes” shall not include personal income taxes, personal
property
taxes, inheritance taxes, or franchise taxes levied against the Landlord,
said property, even though such taxes might become a lien against said
Section 5.08.
Intentionally deleted.
Section 5.09.
Taxes on Tenant’s Personal Propem.
and not directly against
property.
Tenant shall pay all governmental taxes, charges, fees and assessments applicable to
Tenant’s personal property, trade fixtures, inventory and Tenant’s Rent obligation
before they
become
delinquent.
ARTICLE VI
COMMON AREAS
Use of Common Areas.
Section 6.01.
Tenant
have a non-exclusive right to use the
Common Areas (including the
not exclusively reserved for the
Residential Portion, or the guests, customers, and patrons of any hotel which
may be part ofthc
Village), subject to the provisions of this Lease and subject to the exclusive control and
shall
unrestricted right to use
all
parking
in
the Village that
is
management of Landlord and
the rights of Landlord and of other tenants. Tenant shall comply
with such reasonable rules and regulations as Landlord prescribes regarding use of
the
Commercial
Common Areas for any sales or display purposes,
or for any purpose which would impede or create hazardous conditions for the
flow of pedestrian
or other traffic. Tenant shall use only such entrances, exits, and service lanes in
the rear ofthe
stores as designated by Landlord for the loading or unloading of trucks or other
vehicles,
Portion. Tenant shall not use the
however, Tenant may accept delivery from nationally recognized delivery services through
any entrance at anytime. Tenant and Tenant's employees shall use only the employee parking
areas (if any) designated
contained elsewhere
by Landlord. Notwithstanding the foregoing or anything
to the contrary
Landlord may, in its sole discretion, charge customers and
employees ofthe Village for automobile or other vehicular parking, and/or install parking meters
in the street, lot or
in this Lease,
garage parking for the Village.
Section 6.02.
Landlord
Management and Operation of Common Areas.
shall operate, repair,
determines, including
seating, food facilities
Village;
(i)
using the
Common Areas as Landlord
Areas for promotions, exhibits, displays, outdoor
equip and maintain the
Common
and any other use which tends
granting the right to conduct sales in the
to attract
customers to or benefits the
Common Areas;
(iii) erecting, removing
and other improvements within the
Common Areas; (iv) entering into, modifying and terminating easements and other agreements
pertaining to the use and maintenance ofthe Village; (v) constructing, maintaining,
operating,
(ii)
and leasing kiosks,
planters, pools, sculptures, buildings
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Page 9Page 19 replacing and removing lighting, equipment, and Signs on all or any part of the Common Areas;
(vi) providing security personnel or systems for the Commercial Portion; (vii) restricting parking
in the Commercial Portion; (viii) discouraging non-customer
parking;
temporarily closing
(ix)
all
or any portion ofthe Village; and (x) converting Santana Row into a pedestrian mall so long
as
vehicular access is available from Winchester Boulevard and Stevens Creek Boulevard to the
parking facilities serving the Commercial Portion.
Notwithstanding anything to the contrary contained elsewhere herein, Landlord
any time during the Term cause or permit the construction, installation,
operation or leasing of any kiosk, cart, retail merchandise unit, newspaper rack or other
shall not at
“No Kiosk Area” identified on the site plan attached hereto as
Exhibit A; provided, however, that the same shall in no event be construed to
prohibit
similar obstruction in the
Landlord from the placement of benches, landscaping or other decorative items
within
such area.
In addition, subject to Legal Requirements, the rights of existing tenants
and any
applicable rules or regulations of Landlord (including any reasonable
safety measum
imposed by Landlord), Tenant shall have the right, from time to time, to load its vehicles
(“Loading”) through the storefront of the Leased Premises in the
the conditions set forth herein:
manner and subject
to
a.
Any Loading shall occur during the hours of 7:00 am, PST, and
b.
In no event shall any vehicle be permitted to remain in or around
the “Car
Drop-Off Area” identified on Exhibit A in excess of three
(3) minutes at any one
time (which the parties agree may be shortened
Landlord’s verbal
10:00 am, PST.
requwt
by
therefor during any period of placement thereon
by Tenant).
Any Loading
c.
shall only occur along the route identified therefor on Exhibit A
as
“Tenant’s Path For Car Delivery,” which route the parties agree
may be subject
to reasonable modification by Landlord from time to time.
d.
The actual delivery and installation of the vehicles into the Leased Premises shall
on be performed through the use of loading jacks and no vehicles shall be driven
on the pedestrian walkway.
e.
Tenant shall repair any damage to the Village caused or occasioned
by any
Loading within two (2) days of any demand therefor (or Landlord may do so at
Tenant’s expense without any further period of delay).
f.
All
Loading
shall
be coordinated with Landlord at least five
(5)
business days in
advance.
In conjunction with any Loading, Landlord agrees to use reasonable
efforts to
maintain the that certain pedestrian walkway curb ramp in the approximate
location
identified on Exhibit A for the purpose of enabling Tenant to
access the sidewalk;
provided, however, that Landlord shall have no obligation in the event that the
same shall
be removed or is otherwise unavailable.
ARTICLE
VII
UTHJTIES
Section 7.01.
A.
Utilig Charges.
Tenant
shall pay,
when
charges for water, sewer, electricity, gas,
utilities supplied to the Leased Premises (“Utility Charges”). Electric
utility charges shall be based upon test meter readings and water
utility charges shall be based
upon flow meter readings as provided below.
due,
all
telephone service and other
B.
Landlord shall install, at Landlord’s expense, a check meter, test meter or other
such device(s) that measures actual electricity usage. Tenant shall
pay Landlord Tenant’s
proportionate share of the electric Utility Charges based upon such readings, plus service
fees for
reading Tenant’s check meter, test meter or other such device(s), on the first
day of each calendar
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0Page 20 month, provided such Utility Charges shall be comparable and competitive to the rates Tenant
would be charged if billed directly for the same services by the local utility authority. It is the
intent
ofthe parties that Tenant’s proportionate share of Utility Charges
Minimum Rent.
is
separate from and in
addition to
C.
Notwithstanding the foregoing, Tenant shall install, at Tenant’s expense, a flow
meter that measures Tenant's use of condenser water from the condenser water distribution
system serving the Village (the "Condenser Water System") (if a meter is not presently installed
within the Leased Premises). and Tenant shall pay its proportionate share of Condenser Water
Costs (defined as Landlord's costs of operating and maintaining the Condenser Water
System
including an administrative charge oftwenty percent (20%) ofthe total of all other costs
included
Condenser Water Costs). Tenant's proportionate share of Condenser Water Costs (which shall
be based upon the flow meter readings) is a fraction, the numerator ofwhich is the
amount of
condenser water used by Tenant and the denominator of which is the amount 0f condenser
water
used by all occupants of the Village. It is the intent ofthe parties that Tenant's
proportionate
share of Condenser Water Costs is separate fi'om and in addition t0 Minimum
Rent.
in
D.
In addition to Tenant's proportionate share
E.
Tenant
ofCondenser Water Costs, Tenant
pay Tenant's Condenser Water Equipment Charge, payable in equal monthly installments
commencing on the Rent Commencement Date and on the first day of each calendar month
thereafier throughout the Term. It is the intent of the parties that Tenant's Condenser
Water
Equipment Charge is separate from and in addition to Minimum Rent.
shall
commencing on
shall
the Rent
pay Tenant's Sprinkler Charge, payable
Commencement Date and on
thereafier throughout the Term.
separate from and in addition to
F.
It is
in equal
monthly installments
the first day of each calendar
month
the intent ofthe parties that Tenant's Sprinkler Charge
Minimum
is
Rent.
If Landlord, either directly or indirectly
through its designee, elects to supply any
used upon or fumished to the Leased Premises, Tenant agrees to
pay a charge
based on Tenant's estimated usage as reflected on a monthly invoice provided
by Landlord or its
of the
utilities
designee; provided, however, Tenant's total charges for utilities provided
by Landlord shall be
comparable to the rates Tenant would be charged as if billed directly for the same
service by the
local utility company as a direct retail customer.
Section 7.02.
Except as
Discontinuance and Interruption ofService.
set forth herein, Landlord shall not be liable to
Tenant
in
damages or
otherwise for the quality, quantity, failure, unavailability or disruption
of any utility service and
the same shall not constitute a termination ofthis Lease, or an
actual or constructive eviction of
Tenant, or entitle Tenant to any abatement of Rent.
Notwithstanding anything t0 the contrary in this Lease, if utilities serving the
Leased Premises are disrupted due t0 the negligence or acts of Landlord, its
agents,
contractors, servants or employees, Landlord shall promptly restore the affected
utilities at
Landlord’s sole cost and expense. If the disrupted utilities are not restored
Landlord
by
within forty-eight (48) hours after the Landlord has knowledge of the
disruption, and
Tenant is unable t0 conduct its business in the Leased Premises due t0 the disruption
of
utility service, the Minimum Rent shall be abated during the period
commencing on the
expiration of the aforementioned forty-eight (48) hours and ending on the date
Tenant is
able t0 resume conducting its business. Landlord shall not be liable for
consequential
damages resulting from any disruption of utilitiw. In addition, a disruption of utility
service shall not constitute a termination of this Lease or a constructive
or actual eviction of
Tenant.
Section 7.03.
Landlord’s Right to Alter Utilities.
may at any time alter any utility, and related equipment, sewing the
Portion, provided such alteration does not materially interrupt service to the
Leased
Premises and does not unreasonably interfere with Tenant’s business operations within
the
Landlord
Commercial
Leased Premises.
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VIII
INDEMNITY AND INSURANCE
Section 8.01.
Indemnig.
A.
defined
Tenant
shall indemnify,
defend and hold Landlord, the Village Association (as
and members, and their respective shareholders,
in the Declaration), its lessors, partners
partners,
members,
trustees, agents, representatives, directors, officers,
employees and
Mortgagee(s) (collectively, “Landlord’s lndemnitees”) harmless from and against all liabilities,
obligations. damages, judgments. penalties, claims, costs, charges and expenses,
including
reasonable architects’ and attomeys’ fees, which may be imposed upon, incurred
by, or asserted
against any of Landlord’s Indemnitees by a third party and arising, directly or
indirectly, out of or
connection with (i) Tenant’s breach 0f its obligations under this Lease,
(ii) the acts or
negligence of Tenant or any Person claiming by, through or under Tenant, or
the agents,
contractors, employees, servants or licensees ofany such Person,
in, on or about the Leased
Premises, the Building or the Village, or (iii) the use or occupancy
by Tenant, its agents,
in
contractors, employees, servants or licensees of the Leased Premises, the
Building or the Village.
shall not be obligated to indemnify Landlord’s Indemnitees against
loss, liability, damage,
Tenant
cost or expense arising out
ofa claim for which Tenant is released from liability pursuant to
Section 8.07 below, or a claim arising out ofthe willful misconduct or sole
negligent acts or
omissions of Landlord or its agents, employees or contractors.
B.
Landlord shall indemnify, defend and hold Tenant, its partners, officers,
shareholders, members, trustees, principals, agents, directors and employees
(collectively
“Tenant's lndemnitecs”) harmless from and against all
liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable architects’
and attorneys’ fees, which
may be imposed upon, incurred by, or asserted against any of the Tenant’s Indemnitees
by a third
party and arising, directly or indirectly, out ofor in connection with
(i) Landlord’s breach of its
obligations under the Lease, (ii) the acts or negligence of Landlord or
any person claiming by,
through or under Landlord, or the agents, contractors, servants, employees
and/or licensees of
any such person
in, on or about the Common Areas, and
(iii) the use ofthe Common Areas.
Landlord shall not be obligated to indemnify Tenant’s lndemnitees against
loss, liability, damage,
cost or expense arising out ofa claim for which Landlord is released
from liability pursuant to
Section 8.07 below, or a claim arising out ofthe willful misconduct or
sole negligent acts or
omissions ofTenant or its agents, employees or contractors.
Section 8.02.
Landlord Not Responsible for Acts of Others.
Landlord shall not be liable to Tenant, nor to those claiming through
Tenant, for any loss,
thefi, injury, liability or damage of. for or to Tenant’s business and/or
property, including but not
limited to any of Tenant’s vehicles or other personal
property situated in the
PCA, which may
result from: (a)
any
omission. fault or negligence of other tenants or licensees, their agents,
employees or contractors, or any other persons (including occupants of adjoining or
contiguous
act,
owners of adjacent or contiguous property, or the public),
(b) the breaking, bursting,
backup, stoppage or leaking of electrical or phone/intemet cables and wires, or
water, gas, sewer,
buildings,
HVAC 0r steam
water,
snow
pipes or ducts serving the Leased Premises, the
or ice being upon the Village or
coming
PCA and/or the
Village, (c)
Leased Premises or the PCA, and/or
(d) earthquake or other act ofGod. Tenant acknowledges that its use of the Leased Premises,
the
PCA and the Village is at its own risk.
Section 8.03.
into the
Tenant’s Insurance.
Commencing on
the
Term Commencement Date and
at all
times thereafier, Tenant shall
carry and maintain:
A.
Commercial General Liability Insurance (a non-deductible policy with ISO
occurrence form or equivalent) naming Tenant as the named insured and Landlord and
(at
Landlord’s request) Landlord’s mortgagee (and managing agent), ifany, Landlord’s
property
if any, and Federal Realty Investment Trust (“FRIT”), if FRIT is not the
Landlord under
this Lease, as additional insureds, providing an Additional Insured — Managers
or Lessors of
manager,
Premises Endorsement (#CG-ZO-l 1-01-96 or equivalent) protecting Tenant and the additional
insureds against liability for bodily injury, death and property damage with respect to
liability
arising out ofthe ownership, use, occupancy or maintenance ofthe Leased
Premises, the
PCA
and
all
areas appurtenant to either, with a
minimum combined
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single limit
ofTwo
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Page 12Page 22 Dollars ($2,000,000.00) and a general aggregate limit ofFour Million Dollars ($4,000,000.00).
If the policy also covers locations other than the Leased Premises, the
policy shall include a
provision to the effect that the aggregate limit of Four Million Dollars ($4,000,000.00) shall
at the Leased Premises and the PCA. These policy limits
may be obtained
apply separately
through any combination of primary and excess insurance. IfTenant sells, serves or distributes
in or on the Leased Premises, then such General Liability Insurance
shall
alcoholic beverages
include Liquor Legal Liability coverage at the
same minimum limits of liability as shown above.
serves or distributes food in or on the Leased Premises, then such General
Liability Insurance shall include products liability with a combined single limit ofTwo
Million
lfTenant
sells,
Dollars ($2,000,000.00) per occurrence and an aggregate limit of Two Million
Dollars
($2,000,000.00).
“All Risks” or "Special Causes of Loss Form”
B.
property insurance covering all of
Tenant‘s Property and Leasehold Improvements (as both are defined in
Section 9.05. below), and
those portions of the Leased Premises and PCA that Tenant is responsible to repair
pursuant to
Section 10.02. below, and written for at least the full replacement cost with a
deductible of not
more than Fifiy Thousand Dollars ($50,000.00); provided, however, that in the event that
Tenant
has a tangible net worth
shall be
no
at
or exceeding Ten Million and 00/100 Dollars ($1 0,000,000.00), there
limits or requirements with respect to the deductible herefor.
C.
Plate glass insurance covering
PCA
all plate glass in the Leased Premises and the
(ifapplicable). Tenant shall be and remain liable for the repair and restoration of
all such plate
glass.
Tenant may
D.
elect to self-insure for this coverage.
Comprehensive
boiler
and machinery coverage, including
electrical apparatus, if
applicable, with a commercially reasonable deductible.
E.
Business interruption, loss of income and extra expense insurance in
amounts
sufficient to pay for Tenant’s expenses and lost income for a
period of not less than twelve (12)
months.
F.
Employer’s liability insurance with a minimum of Five Hundred Thousand
Dollars ($500,000.00), and statutory worker’s compensation insurance
as required by the
jurisdiction in
which the Leased Premises
is
located.
G.
Business automobile liability insurance including the ownership, maintenance
and
operation ofthe automotive equipmenL owned, hired, and non-owned
coverage with a combined
single limit of not less than Two Million Dollars
($2,000,000.00) for bodily injury and property
damage.
Notwithstanding anything set forth above, all dollar limits specified in this Section
8.03.
from time to time, as reasonably necessary upon Notice from Landlord, to
shall be increased
effect economically equivalent insurance coverage, or coverage
deemed adequate
in light
ofthen
existing circumstances.
Section 8.04.
Tenant
Tenant’s Contractor‘s Insurance.
shall cause
any contractor performing work on the Leased Premises
carry and maintain, at no expense t0 Landlord:
(i)
employer’s
liability
to obtain,
insurance with a
minimum ofFive Hundred Thousand Dollars ($500,000.00) as required by thejurisdiction in
which the Commercial Portion is located. and worker’s compensation
insurance;
builder’s
(ii)
risk insurance with a deductible
no greater than Ten Thousand Dollars ($10,000.00), in the
amount of the fiJll replacement cost of Tenant’s Propeny and Leasehold Improvements;
(iii)
Commercial General Liability Insurance, including completed operations and contractual
liability
coverage, providing on an occurrence basis a
minimum combined single limit ofTwo Million
Dollars ($2,000,000.00) per occurrence (and Four Million Dollars ($4,000,000.00)
general
aggregate, if applicable), and if the policy also covers projects other than the Leased
Premises,
the policy shall include a provision to the effect that the aggregate limit shall
apply separately at
the Leased Premises; and (iv) business automobile liability insurance including the
ownership,
maintenance and operation of the automotive equipment, owned, hired, and non-owned coverage
with a combined single limit ofnot less than
Two Million
Dollars ($2,000,000.00) for bodily
and property damage. Ifthe contractor fails to acquire such insurance, Tenant shall
provide such insurance (except worker’s compensation insurance and employer’s
liability).
injury
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Section 8.05.
Any company writing any insurance which Tenant is required to maintain or cause to be
maintained under Sections 8.03 and 8.04 as well as any other insurance pertaining to the Leased
Premises or the operation of Tenant’s business therein (all such insurance being referred to as
“Tenant’s Insurance”) shall at all times be licensed and qualified to do business
in the
jurisdiction in which the Leased Premises are located and shall have received an A-VIl
or better
by the latest edition ofA.M. Best’s Insurance Rating Service. All of Tenant’s Insurance
be carried under a blanket policy covering the Leased Premises and any other location of
Tenant, if (i) the coverage afforded Landlord and any designees of Landlord shall not be reduced
or otherwise adversely affected, and (ii) such blanket policy allocates to the properties
and
rating
may
liabilities to be insured under this Article VIII an amount not less than
the amount of insurance
required to be covered pursuant to this Article VIII, so that the proceeds of such insurance
shall
not be less than the proceeds that would be available if Tenant were insured under a
unitary
policy. Tenant’s
Commercial General
Liability policies shall
name Landlord and/or
its
designees
as additional insured, and Tenant’s property insurance policies shall name Landlord
and/or
designees as loss payee 0r additional insured (as the case may be) for permanent Leasehold
Improvements and betterments. All policies of Tenant’s Insurance
requiring the insurer(s) to endeavor to give to
all
shall contain
its
endorsements
additional insureds at least thirty (30) days’
advance Notice ofany reduction, cancellation, termination or non-renewal of said
insurance.
Tenant shall be solely responsible for payment of premiums for all of Tenant’s
Insurance.
Tenant
shall deliver to Landlord at least ten 10) days prior to the time Tenant’s
(
Insurance is first
required to be carried by Tenant, and upon renewals at least ten
(10) days prior to the expiration
ofthe term of any such insurance policy. a certificate of insurance of all policies
of Tenant’s
Insurance. The limits of Tenant’s Insurance shall not limit Tenant’s liability
under the Lease,
at
law, or in equity. All policies ofTenant’s Insurance shall be primary and
non-contributory with
respect to Landlord‘s liability arising out of the act or omission of
Tenant, its officers, agents,
contractors, employees, or. while upon the Leased Premises, invitees. If
Tenant fails to deposit a
cenificate of insurance with Landlord (which shows compliance with the
provisions 0f this
Article VIII) within seven (7) days afier Tenant’s receipt of Notice
from Landlord, Landlord may
acquire such insurance. and Tenant shall pay Landlord the amount ofthe
premium applicable
thereto within
five
(5) days following Notice
Section 8.06.
from Landlord.
Increase in Insurance Premiums.
Tenant shall not keep or do anything in the Leased Premises that will:
(i) cause an
increase in the rate of any insurance 0n the Village;
(ii) violate the terms of any insurance
coverage on the Village carried by Landlord or any other tenant;
(iii) prevent Landlord from
obtaining such policies of insurance acceptable to Landlord or
any Mortgagee ofthe Village; or
(iv) violate the rules, regulations or recommendations of Landlord’s
insurers, loss prevention
consultants, safety engineers, the National Fire Protection Association,
or any similar body
having jurisdiction over the
Premises. If Tenant does so, Tenant shall pay to Landlord
upon demand the amount of any increase in any such insurance premium. In
determining the
sted
cause of any increase
in insurance premiums, the schedule or rate ofthe
organization issuing the
insurance or rating procedures shall be conclusive evidence ofthe items
and charges which
comprise the insurance rates and premiums on such property.
Notwithstanding anything to the contrary in the foregoing, Landlord hereby
represents that the Permitted Use will not cause an increase in Landlord’s insurance
premiums. Landlord, however, has no knowledge of and makes no representations, actual
or implied, of Tenant’s actual use and operations within the Leased Premises.
In the event
Landlord’s insurance is increased as a result of Tenant’s use of the Leased
Premises,
Landlord shall give Tenant written notice of the cause of the increase and an opportunity
to cure.
Tenant
increase
is
have thirty (30) days to cure the cause of the increase, and
cured, Tenant shall have no obligation to pay such increase.
shall
Section 8.07.
if
such
Waiver of Right of Recoveg.
Except for the indemnification for Hazardous Substances as set forth in Section
17.17.,
neither Landlord nor Tenant shall be liable to the other party or to any insurance
company (by
way of subrogation
or otherwise) insuring such other party for loss or
damage to any building,
any resulting loss of income, or losses under worker’s
compensation laws or benefits. even though such loss or damage might have been occasioned
by
the negligence ofLandlord or Tenant, or their respective agents or employees;
provided,
structure or other tangible property, or
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Page l4Page 24 however, the mutual release contained herein shall not apply to damage to property or loss of
income caused by the willful misconduct of such other party. This Section 8.07. shall not limit
or supersede the indemnification to third parties as provided in Section 8.01. The
provisions of
XV
this Section 8.07. shall
apply to any Transferee pursuant to Article
ofthis Lease, and the
Transferee shall expressly agree in writing to be bound by the provisions ofthis Section
8.07.
if such
(as
Transferee were Tenant hereunder) for the benefit 0f Landlord.
Section 8.08.
Landlord‘s Insurance.
Landlord shall maintain
(i) “all
risk” or “special causes of loss form”
property insurance
insuring the structural components of the buildings composing the
Village, to the extent of eighty
percent (80%) ofthe full replacement value of such buildings, and insuring the
Common Areas
ofthe Village, and (ii) Commercial General Liability Insurance (ISO form or
equivalent)
covering the Common Areas of the Village. Provided the insurance coverage
carried
by
Landlord pursuant to
Landlord’s insurance
(i)
above
may
be reduced or otherwise adversely affected, all of
be canied under a blanket policy covering the Village and any other
shall not
property owned, leased or operated by Landlord or its affiliates, provided the
insurance
requirements in this Lease are fulfilled and the insurance coverage is not
diminished
ARTICLE
in
any way.
IX
CONSTRUCTION AND ALTERATIONS
Section 9.01.
Condition of Leased Premises.
Except for any Landlord’s Work set fonh in Exhibit B, Tenant accepts
the Leased
Premises “AS IS”. with no representation or warranty
by Landlord as to the condition or
suitability of the Leased Premises or the Village for Tenant’s
purpose.
Notwithstanding anything to the contrary contained herein, Landlord shall
repair,
expense, any latent structural defects discovered by Tenant in the Leased
Premises
and which Landlord is notified of by Tenant in writing.
at
its
Section 9.02.
Tenant
Tenant Improvements.
shall
perform
all
Tenant’s
Work
in
accordance with
its
obligations set forth in
Exhibit B.
Section 9.03.
Alterations.
Afier completion of Tenant’s Work, Tenant
alterations, additions, renovations,
shall not
improvements or
make
or cause to be
made any
installations (independently or collectively,
“Alterations”) in or to the Leased Premises without Landlord‘s
prior written consent, which
consent shall not be unreasonably withheld provided that the same
are interior and do not impact
the Building structure or systems, except that Tenant
may make interior, non-structural, nonstorefront, non-mechanical, non-electrical and non-plumbing
Alterations costing less than Fifiy
Thousand Dollars ($50,000.00) per Lease Year. provided that the same
shall be made in
accordance with Tenant’s then-current interior décor and fixtures;
provided, however, that the
foregoing Fifty Thousand Dollar ($50,000.00) per Lease Year
limitation shall increase
by
Two Thousand and
00/100 Dollars ($2,000.00) on the first and each subsequent
anniversary
of the Rent Commencement Date through the end of the initial ten
(10) year Term. Tenant
shall provide Landlord “as built“ drawings (in the event that
the precipitating work required
construction documents or other drawings) after Tenant has completed
any such Alterations in
0r to the Leased Premises, as well as all permits, approvals and other
documents issued by any
governmental agency in connection with such work.
Section 9.04.
Work
Requirements.
work performed by Tenant, including Tenant’s Work as set forth in Exhibit B
and any
Alterations, shall be performed: (i) promptly and in a good and
workmanlike manner with firstAll
class materials;
(ii) by duly qualified or licensed persons; (iii) without interference
with, or
the operations of Landlord or other tenants or occupants ofthe
Village; (iv) without
harming the structure or diminishing the value ofthe Leased Premises or the
Village; and
in
disruption
to,
(v)
accordance with (a) plans and specifications approved in writing in advance
by Landlord, such
approval to be granted or withheld in Landlord’s sole and absolute discretion
except
as
otherwise be provided
in
Section 9.03. and/or Exhibit B, and (b)
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Page 15Page 25 Requirements. Neither Landlord’s approval of Tenant’s Plans (as defined in Exhibit B), nor any
other inspections or approvals of the improvements to the Leased Premises or plans for
construction thereof. by Landlord’s employees, agents or inspecting engineers shall constitute a
warranty or representation as to the technical sufficiency, adequacy or safety 0f the plans,
any of the component parts, or any other physical condition or feature pertaining to the
improvements, it being acknowledged by Tenant that Landlord has made such approvals solely
structures,
as a landlord in determining and protecting the value of its property for internal purposes, and not
for construction-related matters nor for Legal Requirements. Upon completion of
any work,
Tenant agrees to cause a Notice of Completion to be recorded in the office ofthe Recorder ofthe
in which the Leased Premises (or the Building) is or are located in
accordance with
county
Section 3093 ofthe Civil
Section 9.05.
Code ofthe
State of California or any successor statute‘
Ownership of Improvements.
All present and fiJture Alterations and any construction work attached (as hereinafier
described) to the Leased Premises and/or the Village and made by or on behalf ofTenant or prior
HVAC system and pipes, conduits and mechanical
systems exclusively serving the Leased Premises (individually and collectively, “Leasehold
Improvements”) shall be Landlord’s property when installed or completed and, upon Tenant’s
tenants, including, but not limited to, the
vacation or abandonment 0f the Leased Premises, shall remain upon and be surrendered with
the
in good order, condition and repair, unless abandoned in writing
by Landlord, in
Leased Premises
which event Tenant assumes ownership ofthe same. “Attached”, as used in this Section 9.05.,
refers to more than merely nailed, screwed or bolted to the structure of the
Leased Premises, but
means attached in such a way so as to require significant effort and cost to be removed.
All movable goods, vehicles, inventory, office fumiture, equipment. trade fixtures
(including
rather
Signs) and other movable personal property belonging to 0r used by Tenant that are not attached
Leased Premises shall be Tenant’s property (individually and collectively, “Tenant’s
to the
Property”) and Tenant may remove same at any time, provided Tenant
(i) is not in violation of
any provision ofthis Lease, and (ii) repairs any damage to the Leased Premises or the Village
WM-
caused by such removal.
Section 9.06.
Tenant
Landlord
shall
remove
may direct)
all
ofTenant’s Property (and any Leasehold Improvements as
Date or the termination of Tenant’s right to
prior lo the Termination
possession. In addition, Tenant shall fully and completely
PCA, and
remove any improvements to the
same to the condition that existed prior to the Term Commencement
any damage to the remaining Leasehold Improvements, the Leased
fully restore the
Date. Tenant shall repair
Premises, the PCA or any other portion of the Village caused by such removal. If Tenant
fails to
timely remove said items within fifteen (15) days after written notice from Landlord,
they
shall be considered abandoned and shall become the property of Landlord, or
Landlord
have
may
them removed and disposed ofat Tenant’s sole
Section 9.07.
cost.
Mechanic’s Liens.
No mechanic’s or other lien shall be allowed against the Village as a result ofTenant’s
improvements. Tenant shall use commercially reasonable efforts to give Landlord written
notice (i) not less than seven (7) days prior to commencement of
any work in, on or about the
Leased Premises that Tenant intends to commence such work, and (ii) within two
(2) days afier
the commencement ofany such work that such work has commenced. Landlord shall
have the
right to record and post notices of non-responsibility in or on the Leased Premises.
If any
mechanic’s or other lien is filed Village due to work performed or materials furnished
for the
benefit of Tenant, Tenant
shall cause the
same
to be discharged
of record or bonded to
Landlord’s satisfaction and provide Landlord with a copy ofthe release of lien within
twenty (20)
days afier such filing. IfTenant fails to discharge or bond any such lien, Landlord, in addition to
all other rights, may bond or pay ofi‘ said lien, and Tenant shall
pay Landlord all expenses
incurred thereby by Landlord, including reasonable anomey’s fees, on ten
( 10) days' demand.
Section 9.08.
A.
Changes
Exhibit
to Village.
A sets forth the general layout ofthe Village and shows the Building as of
the date of this Lease, and
is not and shall not be deemed Landlord’s representation
or agreement
any part ofthe Village is, will be, or will continue to be, configured as indicated
Landlord reserves the right to determine all tenancies in the Village, and Tenant does not
that all 0r
therein.
rely on, nor does Landlord represent, the tenancy
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Landlord shall have the
right, at any time, to: (i) make alterations or additions t0,
or any part of, the Village, except the Leased Premises;
(ii) build other
improvements in or about the Village; and (iii) convey to others or withdraw portions ofthe
or demolish
all
Common Areas. No rights to any view or to light or air over any property, whether
belonging to Landlord or any other person, are granted to Tenant
by this Lease.
Village or
C.
If Landlord renovates or remodels the front exterior of the Leased
Premises or the
Building or updates signage criteria for the Building (including, without limitation,
adding
signage), Tenant shall:
the remodeling work;
(i)
(ii)
upon request of Landlord, remove its then existing Signs to facilitate
upon direction of Landlord, re-install Signs as appropriate under the
then-existing criteria and consistent with such exterior remodeling;
(iii)
replace Tenant’s
storefront if such replacements are part
cooperate with Landlord to
facilitate
of Landlord's renovation plans; and (iv) otherwise
such renovation and remodeling. Notwithstanding the
foregoing, Landlord
may not alter the size and location of Tenant’s storefront or
reconfigure the Leased Premises. Tenant consents to the performance of all work
deemed
appropriate by Landlord to accomplish any of the foregoing, and to
any inconvenience or
disruption caused thereby.
D.
Tenant acknowledges that Landlord may, in its sole and absolute discretion,
ownership of portions of the Village to third parties and (ii) establish one or
more
associations to own. operate, manage, maintain and/or administer various
portion(s) of the
(i)
transfer
Common Areas.
In connection therewith. Landlord may, in its sole and
absolute discretion,
delegate various of its rights and responsibilities under this Lease
to any of such associations
including, without limitation, any or
all
of the following: the
right to control,
manage, operate
Common Areas including promulgation ofrules and regulations that are
persons using the Common Areas including, without limitation,
Tenant, its agents,
and administer the
binding on
all
contractors,
employees and
invitees; the obligation t0 insure, maintain, repair
Common Areas together with the right to
include in Operating Costs
all
and equip the
costs and expenses
incurred therewith, subject to limitations on Operating Costs set
forth in Article VI; and the right
to administer all or
ponions ofthe Marketing Fund.
ARTICLE X
REPAIRS MAINTENANCE
Section 10.0].
AND LANDLORD‘S ACCESS
E&imelan—dlofl.
Subject to the terms ofthis Lease, including Section 10.02. and Articles
XI and XI], if
applicable, Landlord shall repair and maintain the
Common Areas and the following portions of
the Leased Premises (at no cost to Tenant unless specifically set
forth herein) in good order,
condition and repair: roof; exterior walls (excluding doors, windows,
and
portions (consisting only of the
any
slab, foundations and
glass); structural
members supporting
the roof); and
outside or within the Leased Premises that serve other premises in
with the Leased Premises but only to the extent that such lines are
not owned, operated
utility lines located
common
or
floor
managed by any
utility company or applicable governmental agency. If
any such repairs are
necessitated by Tenant’s breach of this Lease, or
act
or
by any
negligence of Tenant, its agents,
employees, assigns, concessionaires, contractors or invitees, Tenant shall
reimburse t0 Landlord
the reasonable cost incurred in completing such repairs within
five (5) days of demand therefor.
MW-
shall, at its own expense, comply with all Legal Requirements
respecting all
matters relating to the Landlord’s maintenance and/or repair obligations
under this Section 10.01.
Landlord
Section 10.02.
A.
Throughout the Term Tenant shall maintain, repair and replace the non-structural
portions ofthc Leased Premises (including the storefront), any loading dock or
trash area
exclusively designated for Tenant’s use, the Leasehold Improvements and Tenant’s
Property in
good order, condition and repair, and shall not cause or permit the accumulation of
any garbage,
trash or waste in or around the Leased Premises, or permit
any damage or inj ury to the Leased
Premises or the Village. Tenant’s obligations shall include, without limitation,
repairing,
maintaining, and replacing items such as the following: Signs; floor coverings;
walls (other than
and wall coverings; ceilings; submeters exclusively serving the Leased
structural walls)
Premises;
the
D
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meters, pipes and conduits exclusively serving the Leased Premises;
fixtures;
system serving the Leased Premises; plumbing, electrical and other
utility
HVAC
mechanical
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Page l7Page 27 systems exclusively sewing the Leased Premises; sprinkler and other fire protection equipment
exclusively serving the Leased Premises; the storefront(s); security grilles or similar enclosures;
locks and closing devices; window sashes, easements and frames; glass; doors and door frames.
Tenant agrees to maintain with a reputable contractor or Tenant’s trained employees a regular
service and maintenance program on the HVAC equipment and system serving the Leased
recommended by the HVAC manufacturer, a
copy of which shall be supplied to Landlord. Furthermore, Tenant shall remodel or refurbish the
Leased Premises, as reasonably necessary, at least once every five (5) years in accordance with
plans approved in advance by Landlord.
Premises, with routine inspections and servicing as
Tenant
B.
may
devices as
insurance
and maintain such fire extinguishers and other fire protection
be required by any agency havingjurisdiction over, or by the underwriters issuing
shall install
the Village. Tenant agrees to routine inspections of fire protection devices,
for,
including the sprinkler systems and
smoke detectors, by Landlord’s contractor. If any
governmental authority with jurisdiction over the Village requires the installation, modification,
or alteration ofthe sprinkler system, or other equipment,
by reason of Tenant’s use and
occupancy of the Leased Premises, or the location of any partitions, trade fixtures, or other
contents of the Leased Premises, then Tenant shall promptly install such sprinkler
system or
changes therein.
C.
respecting
10.02.,
and
all
and
Tenant shall comply with all Legal Requirements affecting the Leased Premises
matters relating to Tenant’s maintenance and repair obligations under this Section
the orders or recommendations of any insurance underwriters, safety engineers,
all
loss prevention consultants as
10.
.,
Tenant
shall
perform
all
Landlord
may from
time to time consult. Subject to Section
Alterations to the Leased Premises required to
comply with all
Legal Requirements; provided, however, that Landlord shall perform the
requisite
Alterations to such areas of the Leased Premises that are Landlord’s obligation
to maintain
and
repair.
Section 10.03.
Inspections, Access
and Emergency Repairs by Landlord.
Upon
reasonable prior notice and upon using reasonable efforts to not materially
adversely affect Tenant's business within the Leased Premises, Landlord or its designee
may
enter all pans ofthe Leased Premises during the Store Hours to inspect the
same, and
make
necessary repairs or alterations to utilities and venting ducts. In the event of an
emergency,
Landlord may enter the Leased Premises at any time and make such inspection
and repairs as
Landlord deems necessary, at the risk and for the account ofTenant. Landlord
may enter upon
the Leased Premises for purposes of showing the Leased Premises
to Mortgagees or prospective
Mortgagees at any time during the Term and to prospective tenants during the last
six (6) months
of the Term.
ARTICLE XI
CASUALTY
Section
Tenant
to the
Fire or Other Casualg.
1.01.
prompt Notice to Landlord
Leased Premises or the Village.
Section
l l
A.
[f(i) either the
damaged
(ii)
in
case offire or other casualty (“Casualty”)
Right to Terminate.
.02.
Portion are
thereof; or
shall give
Building or the buildings (taken in the aggregate) in the Commercial
of more than fifiy percent (50%) ofthe cost of replacement
to the extent
last two Lease Years or in any Partial Lease Year at the end ofthe
Term
damaged to the extent of more than twenty-five percent (25%) ofthe
during the
the Leased Premises are
cost of replacement thereof; or
(iii) the Leased Premises are damaged to the extent of fifiy
percent (50%) or more of the cost of replacement thereof and such damage cannot be repaired
within one hundred fifiy (150) days from the date of such occurrence; then Landlord
may
terminate this Lease by notice to Tenant within one hundred fifly (150) days afier the
date ofthe
Casualty. If Landlord so terminates this Lease then the Termination Date shall be the date
set
forth in the notice to Tenant,
which date
shall not
be
less than thirty (30)
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days nor more than
ninety (90) days afler the giving of said notice. The "cost of replacement" shall be
determined by
the company or companies insuring Landlord against the Casualty,
or, iftherc shall be no such
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8Page 28 determination, by a qualified Person selected by Landlord to determine such "cost of
replacement."
Notwithstanding anything contained herein to the contrary, Landlord shall, within
any loss, damage or destruction to the Leased Premises, deliver to
Tenant an estimate, prepared by a reputable independent contractor selected by Landlord,
sixty (60) days after
setting forth such contractor’s estimate as t0 the reasonable time required to repair such
Casualty. If such estimated time period exceeds nine (9) months from the date of such
Casualty, Tenant
may elect to terminate this lease by notice to Landlord not later than
days following delivery of such estimate. If Tenant makes such election, this
Lease shall expire upon the thirtieth (30th) day after notice of such election is given
by
Tenant and Tenant shall vacate the Leased Premises and surrender the same to Landlord.
If Tenant fails to make such election or the estimated time period is within such nine
(9)
month period, then if Landlord fails to repair the Leased Premises (i) within the estimated
time period, if such period was greater than nine (9) months or (ii) within such nine
(9)
month period, if the estimated time period was nine (9) months or less, Tenant may elect to
terminate this Lease by notice to Landlord not later than thirty (30) days following the
expiration 0f such estimated time period. If Tenant makes such election, this
Lease shall
thirty (30)
expire upon the thirtieth (30th) day after notice of such election is given
by Tenant and
Tenant shall vacate the Leased Premises and surrender the same to Landlord.
Furthermore, Tenant shall have the right to terminate this Lease by giving Landlord
thirty
(30) days’ prior written notice thereof, in the event
(i) substantial damage to more than
fifty percent (50%) of the Leased Premises occurs in the last two (2) Lease Years, or
(ii) the
leases for fifty percent (50%) or more of the tenants in the Village are
terminated at any
time.
Landlord
shall not exercise any of its rights to terminate this Lease unless
the leases
of other tenants similarly afiected, excluding the leases for Major
Tenants, are also
terminated, if such other leases allow or permit Landlord to terminate the lease.
B.
Term
either
If during the last
(i)
two
(2)
Lease Years or
in
any
Partial
Lease Year
at the
end ofthe
the Leased Premises axe
damaged to the extent of twenty-five percent (25%) or
of replacement thereof, or (ii) more than fifiy percent (50%) ofthe Floor Area of
more of the cost
Commercial Portion (including
the
the Leased Premises) immediately before such Casualty is
rendered untenantable, Tenant may terminate this Lease
by giving Landlord sixty (60) days’ prior
Notice given within sixty (60) days afier the date ofthe Casualty. Notwithstanding
anything to
the contrary contained herein. in the event of a Casualty to the Leased
Premises, and provided the
Lease is not terminated pursuant to the provisions contained in this Article
XI, if Landlord fails
to
commence and
diligently pursue the restoration and/or repairs to the Leased Premises in
accordance with the provisions of Section 11.03 below within one hundred
eighty (l 80) days of
the date of such Casualty or complete
same within three hundred
sixty
five (365) days of the
date of Casualty, Tenant shall have the right to terminate this Lease upon
thirty (30) days’ prior
written Notice to Landlord, said Notice to be given within thirty
(30) days afier the expiration of
the aforesaid period. Ifthe Casualty shall render the Leased Premises
untenantable, in whole or
in part, all Rent shall abate proportionately during the period of such
untenantability, computed
on the basis of the
ratio which the amount of Floor Area of the Leased Premises rendered
untenantable bears to the total Floor Area of the Leased Premises. Such abatement
shall
terminate on the earlier of (i) thirty (30) days afier the date any such repair and restoration
is
substantially completed
by Landlord, or
(ii)
work
the date Tenant reopens for business in the portion
of the Leased Premises previously rendered untenantable. Except to the extent
specifically set
forth in this Section l 1.02, neither the Rent nor any other obligations
ofTenant under this Lease
shall be affected by any Casualty, and Tenant hereby specifically waives
all other rights it might
otherwise have under law or by statute, including, without limitation, California Civil
Code
Sections 1932 and 1933.
Section
l
1.03.
.
Subject to Landlord’s ability to obtain the necessary permits and the availability of
insurance proceeds under insurance required to be carried by Landlord hereunder,
and
either party’s right to terminate this Lease pursuant to the provisions ofthis Article
XI, Landlord
shall repair the Leased Premises (excluding Tenant’s Property and the Leasehold
Improvements
in the
Leased Premises, which
shall
be Tenant’s obligation to
repair, restore or replace) to a
substantially similar condition as existed prior to the Casualty; provided, Landlord shall
not be
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by Landlord in
performing such repairs or reconstruction, provided Landlord shall carry the insurance
hereunder required.
Section 11.04.
Tenant
MW.
promptly commence and diligently pursue to completion the redecorating
and refixturing of the Leased Premises, including repairing, restoring or replacing Tenant’s
Property and Leasehold Improvements, to a substantially similar condition as existed prior
to the
shall
Casualty. Tenant shall reopen for business in the Leased Premises as soon as practicable
afler
the occurrence of the Casualty.
ARTICLE
XII
MW.
CONDEMNATION
Section 12.0].
A.
shall
If more than
twenty-five percent (25%) ofthe Floor Area of the Leased Premises
be appropriated or taken under the power of eminent domain, or
conveyance shall be made
in anticipation or in lieu thereof (“Taking”), either
party may terminate this Lease as of the
efiective date of the Taking by giving Notice to the other party of such election
within thirty (30)
days prior to the date of such Taking.
B.
lf there
right to terminate the
is
a Taking
Lease
at the
ofa portion ofthe Leased Premises, Tenant shall have the
same time and in the manner provided in Section 12.01 .A.
if in
Tenant’s reasonable judgment the portion ofthe Leased
Premises remaining cannot be
reasonably utilized for the operation of Tenant’s business.
C.
Taking ofa portion ofthe Building and this Lease shall not be
.A., then (i) as of the effective date of the Taking, this
Lease
shall terminate only with respect to the portion ofthe
Leased Premises taken; (ii) afier the
effective date ofthe Taking, the Rent (except Percentage
Rent) shall be reduced by multiplying
If there is a
terminated pursuant to Section 12.0]
the
same by a
numerator ofwhich shall be the Floor Area taken and the denominator
be the Floor Area ofthe Building immediately prior to the
Taking; and (iii) as
soon as reasonably possible afier the effective date of the Taking,
Tenant, at its expense and
of which
fraction. the
shall
M.
to
the extent feasible, shall restore the remaining portion of
the Building to a complete unit of a
similar condition as existed prior to the Taking.
Section 12.02.
lfthere
a Taking of any portion of either the Building or the
Commercial Portion so as
to render, in Landlord’sjudgment, the remainder
unsuitable for use as a mixed-use commercial
is
development, Landlord shall have the right to terminate this Lease
upon thirty (30) days’ Notice
to Tenant. Provided Tenant is not then in violation
ofany provision of this Lease, Tenant shall
receive a proportionate refund from Landlord ofany Rent
Tenant paid in advance.
Section 12.03.
Condemnation Award.
All compensation awarded for a Taking of any part ofthe
Leased Premises (including the
Leasehold Improvements) or a Taking ofany other part of the Commercial
Portion shall belong
to Landlord. Tenant hereby assigns to Landlord all ofits right.
title and interest in any such
award. Tenant shall have the right to collect and pursue
any separate award as may be available
under local procedure for moving expenses, Tenant’s Property and loss
of goodwill, so long as
such award does not reduce the award otherwise belonging t0 Landlord
as aforesaid. Ifthe Lease
is terminated as a result of
any Taking ofthe Leased Premises and/or the Commercial Portion,
Tenant shall be entitled to make a claim for and recover from the condemning
authority the
unamortized cost of Tenant’s Work. over and above the dollar amount of the
Constmction
Allowance (if any), amortized on a straight line basis over the initial Term ofthis
Lease,
provided that Tenant has furnished Landlord with a list of Tenant’s Work and the
itemized cost
ofthose improvements within ninety (90) days after the date on which Tenant opens for business
fiom the Leased Premises. The rights contained in Article XI and this Article XII shall be
Tenant's sole and exclusive remedy in the event of a Casualty or Taking. Tenant
waives the
provisions ofSections 1265.130 and 1265.150 ofthe California Code ofCivil Procedure
and the
provisions ofany successor or other law of like import.
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XIII
FNTENTIONALLY DELETED
ARTICLE XIV
SUBORDTNATION AND ATTORNMENT
Section 14.0 l.
Subordination.
Tenant’s rights under this Lease are subordinate to
underlying leases affecting
all
or any
pan ofthe
(i) all
Village, and
present and future ground or
any easement, license,
mortgage, deed oftrust, covenant. or other security instrument now or hereafier affecting the
Village (with any ground lease, mortgage, deed oftrust or other security instrument now
or
hereafier affecting the Village being collectively referred to as a “Mortgage" and the Person
0r
Persons having the benefit of the same being referred to as a “Mortgagee”). Tenant’s
(ii)
subordination provided
in this Section [4.0]. is self-operative and no further instrument
of
subordination shall be required. Notwithstanding the foregoing, Tenant shall, within
twenty (20)
days of request by Landlord, execute such further instruments or assurances as Landlord
may
reasonably
deem necessary
confirm
to evidence or
the subordination of this Lease to any
Mortgage. In addition, any Mortgagee may, at its option, unilaterally subordinate its
Mortgage to
this Lease. Tenant waives the provisions of any current or future
statute, rule or law which
may
give or purport to give Tenant any right or election to terminate or otherwise
adversely affect this
Lease and the obligations ofthe Tenant hereunder in the event of
any foreclosure proceeding or
sale.
Notwithstanding the subordination ofthis Lease to any Mortgage, the terms ofany such
shall not be deemed to alter the terms ofthis Lease as between Tenant
and Landlord,
Mortgage
its
successors and assigns.
Section 14.02.
Tenant
continue
in
Attomment.
without charge, attorn to any Successor Landlord and this Lease shall
accordance with its terms as a lease between Successor Landlord and Tenant,
shall,
provided, however, that Successor Landlord shall not be bound
by any advance payment of Rent
made by Tenant to Landlord except for Rent or Additional Rent applicable tthe then-current month.
or Additional Rent
Section 14.03.
W.
Each of Landlord and Tenant. within twenty (20) days afier Notice from, and without
charge or cost to, the other, shall certify by written instrument to the other
or any other Person
designated by Landlord or Tenant: (i) that this Lease is in full force and effect
and, if modified,
stating the modification; (ii) the dates through which Rent has
been paid; (iii) whether Landlord
or Tenant has failed to perform any covenant, term or condition
under this Lease, and the nature
of Landlord’s or Tenant’s failure. if any; and (iv) such other relevant factual
information as
Landlord or Tenant
Section 14.04.
may reasonably
request.
Quiet Enjoment.
Landlord covenants that
it has full right, power and authority to enter
into this Lease and
upon performing all ofTenant’s obligations under this Lease and timely paying all
peaceably and quietly have, hold and enjoy the Leased Premises during the Term
that Tenant.
Rent. shall
without hindrance, ejection or molestation by any Person lawfixlly claiming
by, through or under
Landlord, subject, however, to the provisions of this Lease and all Mortgages, encumbrances,
easements, and matters of record to which this Lease is or may become subject.
ARTICLE XV
ASSIGNMENT AND SUBLETTING
Section 15.01.
Landlord’s Consent Reguircd.
A.
Tenant and any permitted Transferee, as hereinafter defined, shall not voluntarily
or involuntarily, by operation of law or otherwise: (i) transfer, assign, mortgage, encumber,
pledge, hypothecate, or assign
all
or any of
its
interest in this Lease; (ii) sublet or permit all or
part ofthe Leased Premises to be used
the outstanding or issue
D
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new
by others including concessionaires or licensees; (iii) sell
voting stock (or partnership shares or membership interests) so as to
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change
in the present control
of Tenant, subject to Tenant’s
l5.01 .E., provided, however, that this subparagraph
publicly
owned
corporation
whose stock
is
listed
(iii)
shall not
on a national
the Securities Exchange Act of 1934, as amended) or
is
rights
under Section
be applicable
securities
if Tenant is
exchange
(as
a
defined
in
traded actively in the over—the-counter
market; or (iv) sell, assign or otherwise transfer all or substantially all of Tenant's or
any
permitted Transferee's assets; without the prior written consent of Landlord, which consent
Landlord may not unreasonably withhold, which reasonableness is subject to the provisions set
forth in Section 15.01.D. All ofthe foregoing transactions shall be referred
to collectively or
singularly as a ”Transfer", and the Person to whom Tenant's interest is transferred
shall be
referred to as a "Transferee."
B.
Any Transfer which requires Landlord’s consent and occurs without
Landlord's consent shall not be binding upon Landlord, shall confer
no rights upon any third
Person. and shall, without notice or grace period of any kind, constitute an immediate
Default by
Tenant under this Lease. Landlord’s acceptance of Rent following
any Transfer shall not
constitute Landlord’s
consent to any such Transfer,
(ii) acceptance of the Transferee as a
of Tenant from the performance of any covenants herein, or (iv) waiver ofany
remedy of Landlord under this Lease, although Landlord shall credit amounts received against
Tenant’s Rent obligations. Landlord’s consent to
any one Transfer shall not waive the
requirement for consent to any other Transfer. No reference in this Lease to
assignees,
tenant,
(iii)
(i)
release
concessionaires, subtenants or licensees shall be deemed Landlord’s consent
to occupancy of the
Leased Premises by any such assignee, concessionaire, subtenant or licensee.
C.
Landlord's consent to any Transfer shall not operate as a waiver
of, or release of
Tenant from, Tenant's covenants and obligations hereunder; nor shall the collection
or acceptance
of Rent 0r other performance from any Transferee have such effect. Rather, Tenant shall
remain
fully and primarily liable and obligated under this Lease for the entire Term
in the event of any
Transfer, and in the event of a Transferee’s Default. Landlord
may pursue Tenant, the Transferee,
or both, without prior notice or demand to either.
D.
Without limitation as to other reasonable grounds for withholding consent,
the
it shall be reasonable under this Lease
and any applicable law for
Landlord to deny consent to any proposed Transfer ifany of the following
conditions are
parties hereby agree that
applicable:
Tenant is in Default beyond any applicable notice and cure periods
(i)
under any terms or provisions of this Lease;
(ii)
The tangible
immediately prior to the Transfer
is
net worth (excluding goodwill) ofthe Transferee
less than
Twenty Million and
00/] 00 Dollars
($0,000,000.00);
The inability ofTransferee to continue to operate the business
Leased Premises under the same Tenant Trade Name, and for the same
(iii)
conducted
in the
Permitted Use, as set forth
in this
Lease;
Transferee does not possess qualifications for Tenant's business
ofTenant and does not own and/or does not operate at least five
(5) other locations similar to that authorized in the Permitted Use for the Leased
Premises;
(iv)
substantially equivalent to those
(v)
The proposed Transfer
is
of less than the
entire
Leased Premises;
or
The proposed Transfer constitutes a mortgage, encumbrance,
(vi)
pledge, hypothecation or assignment as security for performance ofTenant’s
obligations to the
Transferee of all or any portion of Tenant’s interest in this Lease.
E.
Notwithstanding the foregoing, the following conditions shall apply to any
proposed Transfer:
No covenant, condition, or obligation imposed upon Tenant by this
remedy, or benefit afiorded Landlord by this Lease shall be impaired or
diminished as a result of such Transfer;
(i)
Lease and no
right,
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Landlord any and all consideration paid
by Tenant to the Transferee of Tenant's leasehold interest
or any and all subrentals payable by subtenants which are in excess ofthe Minimum Rent
provided herein (computed on a square footage basis);
(ii)
shall assign to
directly or indirectly for the assignment
Tenant to which the Leased Premises were initially leased shall
(iii)
continue to remain liable under this Lease for the performance of all terms, including. but not
limited to,
payment 0f Rent due under
(iv)
and reasonably acceptable
to
this Lease;
Transferee must expressly assume in a written instrument delivered
all the obligations ofTenant under the Lease;
Landlord
Landlord shall furnish the appropriate documentation in connection
(v)
with any such Transfer and be entitled to a reasonable administrative fee therefor, as set
forth in
Section 17.03; and
At least thirty (30) days prior to the effective date of such proposed
(vi)
Transfer, Landlord shall receive the following information in connection with such Transfer:
the
name of the proposed Transferee, a copy of the financial statement of the proposed Transferee
and any guarantor, information regarding the proposed Transferee's business history and
experience. and the proposed Transferee's business plan and projections for the Leased
Premises.
Landlord shall approve or disapprove of such proposed Transfer within
thirty (30) days
following receipt of Tenant's written notice of its intent to Transfer the Lease
together with the
required information set forth above. Notwithstanding anything to the
contrary in this Lease, if
Tenant or any proposed Transferee claims that Landlord has unreasonably withheld
or delayed its
consent under this Section 15.0]. or otherwise has breached or acted unreasonably
under this
XV, their sole remedies shall be a declaratoryjudgment and an injunction for the relief
Article
sought without any monetary damages, and Tenant hereby waives all other
remedies, including,
without limitation, any right at law or equity to terminate this Lease, on its own behalf
and, to the
extent permitted under all applicable laws, on behalf ofthe proposed Transferee.
F.
Notwithstanding the foregoing, if Tenant desires to Transfer all or part ofthe
Leased Premises in a transaction where Landlord's consent is required under the
terms ofthis
Article
XV. Landlord
shall have the right t0 recapture the Leased Premises and terminate
the
Lease by giving written notice of such termination to Tenant within thirty
(30) days afier
Landlord receives Tenant's notice of its intent to Transfer, together with the required
information
as set forth above. If Landlord gives Tenant such a termination notice
within such thirty (30) day
period, then this Lease shall terminate effective as ofthe ninetieth
(90th) day afier Landlord's
termination notice is received by Tenant. Notwithstanding the foregoing, in the
event
Landlord delivers
to Tenant a notice of termination, Tenant may rescind its notice
of its
intent to Transfer by providing Landlord with notice of its intention to
rescind within
thirty (30) days after Tenant’s receipt of Landlord’s notice of termination.
If Tenant so
rescinds
its intent to Transfer, then Landlord’s notice 0f
termination shall be void and of
no force and effect and this Lease shall continue in full force and effect as if Tenant
did not
provide Landlord with notice of its intent to Transfer. Furthermore, if the
Lease is
terminated as provided herein, Tenant shall pay to Landlord an amount equal
to the unamortized
portion ofthe Construction Allowance, ifany. Landlord agrees that such amount
shall be
determined by amortizing the Construction Allowance on a straight line basis over the
initial
Term ofthe Lease. Tenant shall pay the unamortized portion of the Construction Allowance
to
Landlord within thirty (30) days of receipt of Landlord's termination notice. The provisions of
paragraph shall survive the termination of this Lease. If Landlord does not exercise
such
proposed Transferee shall nonetheless be required to meet
the conditions in Sections 15.01.D. and 15.0] .E. above.
this
right to terminate this Lease, Tenant's
G.
Notwithstanding the foregoing, provided Tenant shall not be in violation of
this Lease beyond any applicable notice and cure periods, Tenant
may,
without Landlord’s prior consent, assign the Lease to any entity which is and
remains
throughout the Term an affiliate of Tenant (“affiliate” moaning a Person which
either
controls, is controlled by, or is in common control with, Tenant), or to
any subsidiary of
any affiliate of Tenant (subject to the following qualifications, a “Permitted Transferee”),
provided (i) Tenant and any guarantor shall remain liable for all obligations
under the
Lease throughout the Term of the Lease, (ii) the proposed Transferee expressly assumes all
any provision of
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Page 23Page 33 the obligations of Tenant under the Lease, and (iii) Landlord is given thirty (30) days’ prior
written Notice of Tenant’s intent to assign the Lease under this Section 15.01.G., together
with sufficient documentation which verifies that all of the requirements set forth herein
have been fulfilled and the conditions have been met.
H. Notwithstanding anything to the contrary contained herein, provided Tenant
be in Default under the Lease beyond applicable notice and cure periods, Tenant
shall have the right, without Landlord’s prior written consent, t0 assign the Lease
(or to
sell or transfer Tenant’s stock) in connection with a merger, consolidation, corporate
shall not
reorganization (other than pursuant to the bankruptcy laws), sale of corporate assets or
sale or other transfer of stock, provided however, that said assignment shall be subject
only
to the following express conditions and specifically not subject to Sections 15.01.E.
or
15.01.F.:
concurrently with any assignment of the Lease or transfer of stock, the
assignee or transferee, as the case may be, must also acquire the operation and control 0f
seventy-five percent (75%) of Tenant’s other locations in the United States operating under
i.
Trade Name indicated in Section 1.01 of the Lease and all of said locations in
the State of California (or any other similar stores operating under the same or similar
trade name as the Leased Premises is being operated under), whether then owned
by
Tenant or any of its affiliatw (i.e., affiliates meaning corporations, partnerships or limited
liability companies which either control Tenant, are controlled
by Tenant, or are in
the Tenant
common
control with Tenant);
such assignee must have a tangible net worth (excluding goodwill) of at
assignment;
ii.
least Fifteen Million Dollars ($15,000,000.00) after the
iii.
from continuing
iv.
delivered to
no such assignment shall be deemed to release Tenant or any guarantor
throughout the Term of the Lease;
liability
Tenant’s assignee must expressly assume in a written instrument
and reasonably acceptable by Landlord all the obligations of Tenant under the
Lease; and
Tenant must provide notice and a representation that the above
v.
conditions are met to Landlord
thirty
(30)
days before the effective date 0f such
assignment, sale, or transfer.
ARTICLE XVI
DEFAULT AND REMEDIES
Section 16.0].
Default.
Each of the following events
shall constitute a default ("Default") by Tenant under this
Tenant’s
failure to pay, or make available as required by this Lease,
(i)
any Rent (or any
installment thereof) within five (5) days after Tenant receives notice from Landlord
that
the same is past due and payable, however, if Landlord gives notice twice within
any twelve
(12) month period, then thereafter Tenant shall be in Default ifit fails to pay any Rent
within five (5) days after same is due and payable without the necessity of further
notice; or
(ii) Tenant’s failure to submit or resubmit any plans, specifications or other
construction
Lease:
drawings for Tenant’s
same
Work
within the time period set forth in Exhibit B, provided that the
become a default unless Tenant’s failure shall continue for two (2) business
days following Notice thereof from Landlord; (iii) Tenant’s failure to open as required under
shall not
this Lease, or its vacating or
abandoning of, or ceasing to continuously operate from, the Leased
Premises; or (iv) Tenant’s breach or failure to observe or perform any term, condition or
covenant of this Lease (other than those set forth in subsections (i) through (iii) above, which
constitute Defaults not subject to the thirty (30)
subsection
(iv)),
and such breach or
day notice requirement as outlined
failure is not cured within thirty (30)
in this
days afier Tenant’s
receipt or refusal of such Notice fiom Landlord, unless such condition cannot reasonably
be
cured within such thirty (30) days, in which case Tenant must commence such cure within said
thirty (30) days and diligently pursue said cure to its completion, but in
any event no longer than
an additional thirty (30) days to cure shall be provided without the express approval of
Landlord,
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Page 24Page 34 which approval may be withheld
in Landlord’s sole and absolute discretion (provided,
however,
breach or failure creates a hazard, public nuisance or dangerous situation, the
aggregate
cure period shall be reduced to forty-eight (48) hours afier Landlord’s
Notice). Any Notice given
pursuant to this Section shall be in lieu of, and not in addition to,
any Notice required under
Section 1161, ct seg.. ofthe California Code of Civil Procedure.
if such
Section 16.02.
Remedies and Damages.
A.
If a Default occurs, Landlord, without any Notice or demand
whatsoever, shall
the rights and remedies provided in this Section 16.02., in addition
to all other rights and
remedies available under this Lease or provided at law or in equity, which rights
have
all
may be
exercised cumulatively.
B.
Landlord may, upon Notice to Tenant, terminate this Lease and all rights
of
Tenant hereunder, in which event Tenant shall immediately surrender the
Leased Premises to
Landlord. If Landlord elects to so terminate this Lease, Landlord
may recover fiom Tenant the
following:
earned
at the
The worth at the time ofaward ofany unpaid rent which had been
(i)
time ofsuch termination; plus
(ii)
The worth at the time of award ofthe amount by which the unpaid
which would have been earned afier termination until the time ofaward
exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided;
plus
rent
The worth at the time of award ofthe amount by which the unpaid
of the Term afier the time of award exceeds the amount of such rental
loss
Tenant proves could have been reasonably avoided; plus
(iii)
rent for the balance
that
(iv)
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 ofthings would be likely to result therefrom,
specifically including,
but not limited to, brokerage commissions and advertising
expenses incurred, expenses
of
remodeling the Leased Premises or any portion thereof for a new
tenant, whether for the same or
a different use, and any special concessions made to obtain a new
tenant; and
(v)
ofthe foregoing as
may
At Landlord’s election, such other amounts in addition to or
be permitted from time to time by applicable law.
in lieu
The term
“rent” as used in this Section
16.02. shall be deemed to be and to mean all sums
of every nature required to be paid by Tenant pursuant to the terms
of this Lease, whether to
Landlord or to others. As used in Sections 16.02.B.(i) and
16.02.B.(ii) above, the "worth at the
time of award" is computed by allowing interest at the Interest
rate. As used in Section
l6.02.B.(iii) above, the
“worth
at the
time ofaward"
the discount rate of the Federal Reserve
percent ( 1%).
is
computed by discounting such amount
at the time of award plus one
at
Bank of San Francisco
C.
Landlord shall have the remedy described in California Civil Code
Section
195 l .4. Accordingly, if Landlord does not elect to terminate this
Lease on account of any
Default by Tenant, Landlord may, fiom time to time, without
terminating this Lease, enforce all
of its rights and remedies under this Lease, including the right
to recover all rent as it becomes
due. Landlord and Tenant agree that the limitations on assignment
and
Article
XV
subletting set forth in
Lease are reasonable. Acts ofmaintenance or preservation,
efforts to rclet the
Leased Premises, or the appointment of a receiver to protect Landlord's
interest under this Lease
shall not constitute a termination of Tenant's right to
possession.
in this
D.
Landlord shall at all times have the rights and remedies (which shall
be
cumulative with each other and cumulative and in addition to those rights
and remedies available
under Sections 16.02.A. and 16.02.B., above, or any law or other
provision ofthis Lease),
without prior demand or notice except as required
by applicable law, to seek any declaratory,
injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a
violation or breach ofany provision hereof.
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Page 25Page 35 Notwithstanding anything to the contrary contained herein, upon default by Tenant
and a subsequent eviction by Landlord, Landlord agrees to use reasonable efforts to relet
the Leased Premises for a term or terms which may, at Landlord’s option, be less than 0r
exceed the balance of the Term of the Lease. Landlord does not necessarily agree to rent
the Leased Premises at its then fair market value in the event it enters into a new lease
agreement. The foregoing, however, shall in no way obligate Landlord to lease the Leased
Premises in any manner which is not in keeping with the type and caliber of tenants at the
Village,
nor
shall the
same obligate Landlord
to relet the
Leased Premises
in
preference to
other vacant space therein.
Landlord may also perform, 0n behalfand at the expense ofTenant, any
obligation of Tenant under this Lease which Tenant fails to perform, the cost of which (together
E.
with an administrative fee oftwenty percent (20%) of such cost to cover Landlord's overhead in
connection therewith) Tenant shall pay to Landlord within five (5) days of demand therefor. In
performing any obligations ofTenant, Landlord shall incur n0 liability for any loss or damage
that may accrue to Tenant, the Leased Premises or Tenant's Property
by reason thereof, except if
caused by Landlord's willful and malicious
shall not constitute a release or
Section 16.03.
act. Landlord’s performance of any such obligation
waiver of any ofTenant's obligations under this Lease.
Remedies Cumulative.
No reference to any specific
right or remedy in this Lease shall preclude Landlord fi'om
exercising any other right, from having any other remedy, or from maintaining
any action to
which it may otherwise be entitled under this Lease, at law or in equity.
Section 16.04.
Waiver.
A.
No Waiver of Lease Provisions or Breach Thereof. Landlord shall not be deemed
have waived any provision of this Lease, or the breach of any such provision, unless
specifically waived by Landlord in a writing executed by an authorized officer of
Landlord. No
waiver of a breach shall be deemed to be a waiver of any subsequent breach ofthe same
to
provision, or ofthe provision
itself,
or of any other provision.
B.
Waiver of Right of Redemption. Tenant hereby expressly waives any and all
of redemption and any and all rights to relief from forfeiture which would otherwise be
granted or available to Tenant under any present or future statutes, rules or case law.
rights
C.
WAIVER OF TRIAL BY JURY. IN ANY ACTION OR PROCEEDING
ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT T(I) THE
JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF
CALIFORNIA, (II) SERVICE OF PROCESS BY ANY NIEANS AUTHORIZED BY
CALIFORNIA LAW, AND (III) IN THE INTEREST OF SAVING TIME AND
EXPENSE. TRIAL WITHOUT A JURY IN ANY ACTION, PROCEEDING 0R
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR THEIR SUCCESSORS [N RESPECT OF ANY MATTER ARISING
OUT OF OR 1N CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT, TENANT'S USE 0R OCCUPANCY OF THE LEASED
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, 0R ANY
EMERGENCY 0R STATUTORY REMEDY. IF LANDLORD COMMENCES ANY
SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF MINIMUM RENT
OR ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY
COUNTERCLAIM OF ANY NATURE OR DESCRIPTION (UNLESS SUCH
COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING 0R
ACTION, BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.
D.
Waiver of Tenant's Right to Repair 0r Vacate. Notwithstanding anything
contrary contained in this Lease, Tenant waives the right to
make
under Sections 1941 and 1942 of the California Civil Code and
to the
repairs at Landlord's expense
all
other laws
now
or hereafter in
effect.
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Page 26Page 36 ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.01.
Notices.
Any demand,
request, approval, consent or notice (singularly
given by one party to the other shall be
addresses as set forth
in
in writing
and collectively, “Notice”)
and addressed to the parties at their respective
Section 1.01. and served by (i) nationally recognized overnight courier
UPS) or (ii) registered 0r certified mail return receipt requested. The
(such as Federal Express or
date the Notice
is
received shall be the date of service of Notice or,
date of service ofNotice shall be either
or
(ii)
may,
five
at
(5) business
(i)
the next business day
if
delivery
when
is
refused, then the
sent by overnight courier,
days afler mailing when sent by registered or certified mail. Either party
its Notice address by giving the other party Notice, in accordance with
any time. change
the above, stating the change and setting forth the
new address. If Tenant is notified of a
Mortgagee, no Notice sent by Tenant to Landlord thereafter shall be effective until a copy
sent to such Mortgagee.
Section 17.02.
is
also
Recording.
Neither this Lease nor a
memorandum
thereof shall be recorded without Landlord’s prior
written consent.
Section 17.03.
Interest
and Administrative Costs.
A.
If(i) Tenant fails to make any payment under this Lease when due, or (ii)
Landlord incurs any costs or expenses in performing any obligation ofTenant or as a result of
Tenant’s Default under this Lease, then Tenant shall
pay, upon demand, any such payment under
(i) above and any such costs and/or expenses under (ii) above plus Interest from the date such
payment was due or from the date Landlord incurs such costs or expenses relating to the
performance of any such obligation or Tenant‘s Default.
B.
If Tenant requests Landlord to review and/or execute
any documents in
connection with this Lease, Tenant shall pay to Landlord, upon demand, as an administrative
fee
for such review and/or execution, all costs and expenses, including reasonable attomeys’
fees
(including the cost oftime expended by in-house counsel) incurred
by Landlord, with a
maximum
fee of One
Thousand Five Hundred Dollars
Section 17.04.
($1 ,500.00).
Legal Expenses.
If Landlord or Tenant institutes any suit against the other in connection with
the
enforcement oftheir respective rights under this Lease, the violation of any term ofthis
Lease,
the declaration oftheir rights hereunder, or the protection ofLandlord’s or Tenant’s
interests
under this Lease, the non-prevailing party shall reimburse the prevailing party within five
(5)
days of demand for
its
reasonable expenses incurred as a result thereof including court costs and
reasonable attorneys’ fees, even if Tenant pays past due Rent prior to the rendering of
any
judgment.
Section 17.05.
Successors and Assiggs.
This Lease and the covenants and conditions herein contained shall inure to the benefit of
and be binding upon Landlord and Tenant, and their respective permitted successors and assigns.
Upon any sale or other transfer by Landlord of its interest in the Leased Premises, Landlord shall
be relieved of any obligations under this Lease accruing subsequent to such sale or other transfer.
Section 17.06.
Limitation
No shareholder, member,
on Right of Recoveg Against Landlord.
trustee, partner, director, officer,
agent of Landlord shall be personally liable
employee, representative or
of any covenant, condition or provision of
this Lease. If Landlord breaches or defaults in any of its obligations in this
Lease, Tenant shall
look solely to Landlord’s equity in the Commercial Portion and/or the land upon which the
in respect
Village is located, including the rental and sales proceeds therefrom, for satisfaction of
Tenant's remedies. 1n no event shall Landlord be responsible for consequential damages
(e.g.,
lost profits), punitive damagm or any damages other than direct, actual and compensatory
damages incurred by Tenant. The limitation of this section shall not apply to or limit any
injunctive or other equitable, declaratory or other forms of relief to which Tenant
may be
entitled (notwithstanding that such actions are in pursuance in nature).
D
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Page 27Page 37 Section 17.07.
Security Deposit.
Tenant
shall deposit with Landlord within fifieen (l S) days following the full execution
and delivery of this Lease, for Landlord’s general account, the Security Deposit as security for
the performance of Tenant’s obligations under this Lease. Landlord may use, apply on Tenant’s
behalf or retain (without
liability for interest) during the Term all or any part of the Security
Deposit to the extent required for the payment of any Rent which may be owed hereunder, or for
any sum which Landlord expends to cure any Tenant Default. [f Landlord applies any or all of
the Security Deposit, Tenant shall restore the
amount so applied upon demand. Landlord’s use,
deemed a limitation on Landlord’s
application 0r retention of the Security Deposit shall not be
recovery
in
any
case, or Landlord’s
exercising any other right or
waiver of any Default, nor
remedy
for a Default
by Tenant.
shall
it
prevent Landlord from
If Tenant
has complied with
all
the
terms, covenants, agreements, and conditions of this Lease. the Security Deposit (less
any
amount applied as herein provided) shall be returned to Tenant with interest (equal to the
interest paid
by a federally insured bank selected by Landlord, for savings accounts) within
days afier the Termination Date and afier surrender of possession of the Leased
Premises to Landlord in accordance with the terms of this Lease. Tenant hereby waives the
provisions of Section 1950.7 ofthe California Civil Code, or any successor statute.
thirty (30)
Section 17.08.
Entire Agreement;
No
Representations; Modification.
This Lease is the final expression of the parties’ agreement, incorporating all prior
negotiations, considerations and representations between the parties (oral or
written). No course
of prior dealings between the parties or their officers, employees, agents or affiliates shall be
relevant or admissible to supplement, explain or vary any ofthe terms of this Lease.
No
representations, understandings, agreements, warranties or promises with respect to
the Leased
Premises or the Village ofwhich they are a part, or with respect to past, present or future
tenancies, rents, expenses, operations, or any other matter, have been
made or relied upon in the
making of this Lease, other than those specifically set forth herein. This Lease may only be
modified, or a term thereof waived, by a writing signed by an authorized officer of Landlord and
Tenant expressly setting
Section 17.09.
If any
forth said
modification or waiver.
Severabilig'.
Lease term or provision, or
its
application to any Person or circumstance, shall be
invalid or unenforceable, the remainder ofthis Lease, or the application
of such term or provision
to Persons or circumstances other than those as t0 which it is held invalid
or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall be valid and
Section 17.10.
lf two or
be enforced
WM.
to the fullest extent permitted
by law.
more Persons
shall sign this Lease as Tenant, the liability ofeach such Person to
pay the Rent and perform all other obligations hereunder shall be deemed to be joint and several,
and all Notices, payments and agreements given or made
by, with or to any one of such Persons
shall be
deemed
have been given or made by, with or to all of them. In like manner, ifTenant
a partnership or other legal entity, the partners or members ofwhich are,
by virtue of any
applicable law, rule, or regulation, subject to personal liability, the liability ofeach
such partner
or member under this Lease shall be joint and several and each such partner
or member shall be
to
is
fillly obligated hereunder and bound hereby as
signed this Lease.
Section 17.
l.
if each
such partner or
member had
personally
Broker’s Commission.
Except for Johnson Hoke Ltd., whom Landlord agrm to pay a commission under
the terms of a separate agreement, Landlord and Tenant each warrants and represents
to the
other that no broker, finder or agent has acted for or on its behalf in connection with
the
negotiation, execution or procurement ofthis Lease. Landlord
indemnify and hold the other hamless from and against
arising, directly or indirectly, out
of or
and Tenant each agrees
all liabilities,
obligations and
to
damages
connection with a claim from a broker, finder or agent
with respect to this Lease or the negotiation thereof, including costs and attomeys’ fees
incurred
in the defense of any claim made by a broker alleging to have performed
services on behalf
in
of the
indemnifying party.
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Page 28Page 38 Section l7. 12.
Irrevocable Offer,
No
Option, Countemart.
Landlord’s submission of this Lease to Tenant for examination shall not constitute
an
offer to lease or a reservation of or option for the Leased Premises. Tenant’s
execution ofthis
Lease shall be deemed an offer by Tenant, but this Lease shall become effective only upon
execution thereof by both parties and delivery thereofto Tenant or Tenant’s attorney. This
Lease
may be executed in any number of counterparts, each of which shall for all purposes be
deemed
an original and
of which together shall constitute one and the same instrument, and shall be
effective upon execution of one or more such counterparts
by each of the parties hereto and
all
delivery thereof to the other parties hereto. Moreover, signatures received
by facsimile or
portable document format shall be deemed effective for the purposes of
this Lease.
Section 17.13.
Inabilig to Perform.
Except for the payment 0f monetary obligations, if Landlord or Tenant is
delayed or
prevented from performing any of its obligations under this Lease
by reason of acts of
God,
any similar cause whatsoever beyond their control (which shall not be
deemed to include financial inability), the period of such delay or such prevention
shall be
deemed added to the time herein provided for the performance ofany such obligation
by
strike, labor troubles, or
Landlord or Tenant.
Section 17. l4.
Survival.
Occurrence of the Termination Date
shall not relieve Tenant from its obligations or
indemnities accruing prior to the expiration 0fthe Term. All such
obligations shall survive
termination of the Lease.
m.
Section 17.15.
Tenant hereby covenant(s) and warrant(s) that Tenant is duly formed,
qualified to do
business and in good standing in the state in which the Village
is located, and
the individual(s)
executing this Lease on behalf of Tenant is/are duly authorized
by Tenant to execute and deliver
this Lease on behalf ofTenant. Tenant shall
remain qualified to do business and
in
good
standing in said state throughout the Term.
Section 17.16.
Construction ofCertain Terms.
The term “including”
shall
mean
in all cases “including, without limitation.”
Wherever
required to perform any act hereunder, such party shall do so at
its sole cost and
expense, unless expressly provided otherwise.
either party
is
Section 17.17.
No
Hazardous Substances.
Hazardous Substances
(as hereafier
defined)
shall be used, generated, stored, treated,
released. disposed or otherwise
Premises, the
PCA
or the
managed by or on behalf ofTenant or any invitee at the Leased
Village with the exception of minor amounts of Hazardous
Substances
customarily and lawfully used
conjunction with the Permitted Use. Tenant shall immediately
upon discovery of any Hazardous Substance release afi‘ecting the
Leased
Premises or the PCA and. at its sole expense and at Landlord’s
option, remediate to Landlord’s
satisfaction or reimburse Landlord’s costs 0f investigation
or remediation of any release of
Hazardous Substances arising from any act or omission of Tenant, its
employees, agents,
in
notify Landlord
contractors or invitees. Tenant shall cooperate with Landlord
and provide access to the Leased
Premises from time to time for inspections and assessments
ofenvironmental conditions and
shall
remove
all Hazardous Substances from the Leased
Premises or the PCA upon expiration or
termination of the Lease. Tenant agrees to indemnify, defend and
hold Landlord and Landlord’s
Indemnitees harmless from and against all liabilities. obligations,
damages,judgments, penalties,
claims, costs. charges and expenses. including reasonable architects’
and attomeys’ fees, which
may be imposed upon, incurred by or asserted against Landlord or Landlord’s Indemnitces
third party
and arising, directly or
by a
indirectly, out
of 0r
in
connection with the presence of
Hazardous Substances
at or afi‘ecting the Village due to any act of Tenant,
its agents, servants,
employees 0r contractors. As used herein, “Hazardous Substances” shall mean
(i) hazardous or
toxic substances, wastes, materials, pollutants and contaminants which
are included in or
regulated by any federal, state or local law, regulation, rule or ordinance,
including CERCLA,
Superfund Amendments and Reauthorization Act of I986, the Resource Conservation
and
Recovery Act, and the Toxic Substances Control Act, as any ofthe foregoing
may be amended
fiom
time to time,
(iv) all
petroleum products,
(iii) halogenated and non-halogenated solvents, and
other regulated chemicals, materials and solutions which, alone or
in combination with
(ii)
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Page 29Page 39 other substances, are potentially harmful to the environment, public health or safety or natural
resources.
Landlord, at its own cost and without undue delay, shall provide for the
remediation and removal from the Leased Premises Pre-Existing Contamination
(i.e., any
contamination present in the Leased Premises in violation of Legal Requirements prior to
the Term Commencement Date), provided that Tenant shall notify Landlord in writing
within ten (10) days 0f the date that Tenant first becomes aware of any such condition,
and
provided further that any actual violation of any Environmental Law giving rise to such
proceeding shall not be the result of any act or omission on the part of Tenant.
As of the date possession of the Leased Premises is delivered to Tenant, to the best of
Landlord’s knowledge, without independent inquiry, the Leased Premises shall
not contain
any Hazardous Substances
in violation of applicable laws.
OFAC Certification.
Section 17.18.
Tenant certifies
that: (i)
person, group entity, or nation
Department as a
terrorist,
it
is
not acting, directly or indirectly, for or on behalf ofany
named by any Executive Order
or the United States Treasury
“Specially Designated National and Blocked Person,” or other banned
or blocked person, entity, nation, or transaction pursuant to
any law, order, rule or regulation that
is enforced or administered by the Office of Foreign
Assets Control; and (ii) it is not engaging in,
instigating or facilitating this transaction, directly or indirectly, on behalf
of any such person,
group, entity, or nation.
Tenant hereby agrees to defend, indemnify, and hold harmless Landlord from
and against
any and all claims, damages, losses, risks, liabilities, and expenses (including attomeys’ fees and
costs) arising from or related to any breach of the foregoing certification.
Section 17.19.
This
Relationshig of Parties.
Lmse
shall not create
any relationship between the parties other than
that
of
Landlord and Tenant.
Section 17.20.
Rule Against Peggetuities.
If Landlord fails to deliver the
the date of this Lease, either party
Leased Premises to Tenant within twelve (12) months from
may terminate this Lease at any time afier the last day of the
twelfih ( 12m) fiJll calendar month upon providing the other party thirty
(30) days' prior written
Notice. Notwithstanding any provision in this Lease to the contrary, if the
Term has not
commenced within twenty-one (2]) years afier the date ofthis Lease, this Lease shall
automatically terminate on the twenty-first (2|st) anniversary of the date ofthis
Lease. The sole
purpose of this provision is to avoid any possible interpretation of this Lease as
violating the
Rule Against Perpetuities, or any other rule of law or equity concerning
Section 17.21.
shall
restraints
on
alienation.
Choice of Law.
This Lease shall be construed, and all disputes, claims, and questions arising
hereunder
be determined, in accordance with the laws ofthc state within which the
Village is
located.
Section 17.22.
Choice of Forum.
Any action involving a dispute relating in any manner to the Lease, the relationship of
Landlord/Tenant, the use or occupancy ofthc Leased Premises, and/or
any claim of injury or
damage shall be filed and adjudicated solely in the state or federal courts of the jurisdiction in
which the Leased Premises are
Section 17.23.
Time
is
Section 17.24.
located.
W
Time
is
ofthe Essence.
ofthe essence with respect to each and every obligation arising under
this Lease.
No rights to any view
or to light or air over any property. whether belonging to Landlord
or any other person, are granted to Tenant by this stc. If at
any time any windows ofthe
Leased Premises are temporarily darkened or the light or view therefrom is obstructed
by reason
of any
improvements, maintenance or cleaning in or about the Commercial Portion, the
same shall be without liability to Landlord and without any reduction or diminution ofTenant's
obligations under this Lease.
repairs,
D . szLEGAuxPROPERmmmNAxmm (Execution Copy).docx
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Page 30Page 40 Section 17.25.
Declaration.
Notwithstanding an31hing to the contrary in this Lease, it is specifically understood and
agreed that this Lease and Tenant's use of the Leased Premises and the Common Areas
is and
shall be subject to that certain Santana Row Amended and Restated Declaration
ofCommon
Easements, Covenants and Restrictions, as may be amended from time to time
(the
"Declaration") which
Commencement
or will be recorded against the Commercial Portion on or before the Rent
Date. The Declaration shall control in the event of a conflict between it and
this
is
Lease.
Section 17.26.
Notice of the Presence 0f Hazardous Substances and of Restrictions.
Pursuant to California Health
that hazardous substances are located
This Lease
& Safety Code section 25359.7, Tenant
on or beneath the Village that
is
is
hereby notified
the subject of this Lease.
subject to and incorporates by reference all matters of record affecting
Village that is the subject ofthis Lease, including certain environmental
and
is
title
to the
use restrictions.
Such
restrictions include but are not limited to prohibitions against
development and against
activities that disturb
ground level residential
ground surface coverings and soil beneath the
coverings.
[SIGNATURES ON FOLLOWING PAGE]
D
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(Execution Copy)‘docx 11/2/
Page 31Page 41 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Lease under their respective hands and seals as ofthe day and year first above
written.
WITNESS:
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC, a California limited liability company, by
managing member, STREET RETAIL, lNC., a
its
Maryland corporation
By:
Name:
Title:
Deborah A. Colson
Vice President-Legal Operations
TENANT:
TESLA MOTORS, INC“ a Delaware corporation
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By:
Name:
'
'
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'
Title:
D - MALEGALHPROPRTYBANTANMTGII (Enunion Copy).doa(
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Page 32Page 42 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Lease under their respective hands and seals as of the day and year first above
written.
WITNESS:
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC, a California limited liability company, by
managing member, STREET RETAIL, INC, a
its
Maryland corporation
By:
Name:
Deborah A. Colson
Vice President-Legal Operations
Title:
QM
TENANT:
TESLA MOTORS,
By:
‘
Name:
-
M:\LEGALI \PROPERTY\SANTANA\TwIa (Execution Copy)Vdocx
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Title:
D
INC., a Delaware corporation
ll2/l
Page 32Page 43 EXHIBIT _
A
LEGEND
CAR DROP OFF AREA
__..-.._- TENANT 'S PATH FOR CAR DELIVERY. CARS TO BE DELIVERED
& INSTALLED
INTO THE STOREFRONT WITH LOADING JACKS ONLY. TENANT NOT TO
DRIVE CARS ON PEDESTRIAN WALKWAY.
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ALLYSUM LANE
(Execution Copy).docx
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Exhibit
A
Page
1Page 44 EXHIBIT fl
LANDLORD AND TENANT IMPROVEMENTS
LANDLORD IMPROVEMENTS
The following improvements or conditions will be provided in the Leased Premises at
Landlord’s sole cost and expense ("Landlord’s Wor ”). Any improvements not specified
below
shall
be made
at
Tenant's sole cost and expense:
A. Leased Premises to be fi‘ee and clear of
all
Hazardous Substances as and
to the extent
required by applicable laws, rules and regulations.
Leased Premises to be in compliance with all existing code requirements, including,
without limitation, Legal Requirements concerning Hazardous Substances and
ACM,
seismic, exiting, and
ADA,
and from the Premises
in its
including, without limitation, path of travel requirements to
condition as of the date that Landlord delivers the Premises
to Tenant.
The foregoing
be deemed to impose any responsibility whatsoever on
any Alterations (including Tenant’s Work) or other
modifications made by or on behalf of Tenant in or to the Leased Premises or
the
Landlord
shall in not event
with
respect
to
entrance, nor shall the
same be deemed a representation as to compliance related to
Tenant’s particular use 0fthe Leased Premises.
B.
Landlord shall deliver to a point within the interior of the Leased Premises during
production ofany plans for Landlord’s Work the following utilities:
Electrical
o
200 amps
o
120/240V, single phase service within the premises.
Exterior wiring for signage
o
at
Amp service to the PCA.
Water Service
o
l” service
Phone Service
o
2" conduit with pull string
o
Landlord to supply heat and air conditioning including distribution and controls
ready for Tenant’s use at one ton per 250 sq. fl. Tenant shall be responsible for
maintenance and repair ofsaid unit.
HVAC
Central Fire Safety System/ Fire Sprinklers
o
Central fire safety system as required by the local fire authority
o
Fire sprinkler mains. grid system, and fire sprinkler heads meeting all
local codes
based on the condition of the Leased Premises as of the date that Landlord
delivers the Leased Premises to Tenant.
Floors level V4" over [0’
o
Ready
o
Landlord to provide
Floors
for Tenant’s
flooring
Restrooms
l
code compliant. handicap restrooms within Leased
Premises per Tenant’s plans
Demising and Exterior Walls
o
-
MszoAupropERmAmmmm (Execution Copy).docx
1/2/
Exhibit
B Page
lPage 45 EXHIBIT fl
TESLA ; SPACE NO.
LANDLORD AND TENANT IMPROVEMENTS
o
Landlord shall provide demising walls on
spackled, sanded and paint ready.
o
Open
common
side
which
shall
be taped,
Ceilings
ceiling (per local codes)
Storefront! Facade/Tenant
o
Landlord shall demolish the existing storefront. Tenant shall create a new entry
into the space and storefront fiom the exterior of the Building, which shall be
approved
o
Exiting/
Code
o
Doors
in
accordance with Plans.
Landlord shall provide the existing rear exit door
in
good working
order.
Issues
Landlord to provide
ADA
access to the front and back ofthe Leased Premises, per
applicable code requirements in the condition of the Premises as of the date
Landlord’s delivery to Tenant.
all
In the event that Landlord determines that any clement of Landlord’s Work requires
design input from Tenant, Landlords shall solicit the same from Tenant, and Tenant agrees to
respond within forty-eight (48) hours of any request therefor or, at Landlord’s election,
Landlord‘s selection shall be deemed
made on behalf of Tenant.
If Landlord shall be delayed in completing the work and materials to be provided
pursuant to this Exhibit as a result of any of the following (each, a “Tenant Delay”)
(I) Tenant’s
failure to comply with any of the deadlines specified in this Exhibit or with
any of the other
requirements of this Exhibit or the Lease, (2) Tenant’s request for modifications to plans or
working drawings subsequent
to the date such plans or working drawings are approved
by
Landlord, or Tenant‘s request for any change order (even if approved),
(3) Tenant’s failure to pay
when due any amount,
(4) Tenant’s request for long lead time materials, finishes or installations,
or (5) the performance of any work, or the entry into the Leased Premises,
by Tenant or any
person or firm employed or retained by Tenant, then for purposes of determining the Term
Commencement
Date, the work and materials to be provided pursuant to this Exhibit shall be
have been substantially complete on the date that Landlord determines in its
reasonable judgment that such work and materials would have been substantially complete if
such delay(s) had not occurred.
deemed
to
TENANT IMPROVEMENTS
Tenant shall
(a)
completely remodel, renovate and refurbish the Leased Premises,
minimum, installing new storefront, storefront signage, and ceiling, lighting,
trade fixtures, and floor and wall coverings, and making changes to the Leased Premises
necessary to place same in compliance with all applicable governmental codes to enable Tenant
including, at a
to properly use the Leased Premises for the Permitted Use,
improve the
PCA for the Permitted
Use (hereinafier
and
(b)
completely enclose and
collectively referred to as “Tenant‘s Work”).
Plan Submittal Procedure
All
work to be performed by Tenant hereunder
shall be in accordance with detailed plans
and specifications, to be prepared by Tenant's architect in reproducible form, including Tenant’s
material sample board (hereinaficr collectively referred to as the “Plans”), all ofwhich shall
be
submitted to Landlord within
fifiy (50) days of the date of this Lease for Landlord’s written
approval (as to both to design and materials) which such approval shall not be unreasonably
withheld, conditioned or delayed. Landlord agrees to use commercially reasonable efforts to
promptly review and either approve, conditionally approve, or disapprove the Plans within ten
(IO) business days aficr Landlord’s receipt thereof. If Landlord advises Tenant that changes to
the Plans are required, Tenant shall have ten (10) business days thereafier to revise
(as required
D - M:\LEGAU\PROPERTYBANTANMTcsla (Execution Copy).docx
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Exhibit
B Page 2Page 46 EXHIBIT fl
TESLA 3 SPACE NO.
LANDLORD AND TENANT IMPROVEMENTS
by Landlord) and resubmit the Plans
for Landlord’s approval. This process shall continue until
Landlord has approved the Plans.
expressly agreed that Tenant shall not commence any such work until Landlord
has
approved the Plans and any required building permits have been issued
by the applicable local
governmental authorities.
It is
No changes of materials or finishes are permitted afier Landlord’s final approval ofthe
Plans unless approved in writing by Landlord.
Within seven (7) days of the date upon which Tenant has received Landlord's
approval
the Plans, Tenant shall apply for all appropriate building
permits in accordance with the
of
requirements of the applicable jurisdiction and shall use its best efl‘orts
to obtain the same.
Tenant shall promptly give a copy ofthe building permits to Landlord.
Construction Reguircments
Tenant shall commence construction of Tenant's Work in the
Leased Premises no later
than five (5) days afier whichever of the following shall
be the latest to occur:
(a)
The date Tenant
(b)
The date of issuance of all appropriate building
(c)
The Term Commencement Date.
Tenant
shall best efl'orts to
Commencement
receives Landlord's approval of the Plans; or
complete
all
ofTenant's
permits; or
Work and open on
or before the Rent
Date.
Tenant's general contractor will meet with Landlord's
representative prior to the initiation
of any work on the space to review Landlord’s construction
rules and regulations and any other
requirements specific to the Village.
Tenant's general contractor will submit to
Landlord a check for Two Thousand Five
Hundred Dollars ($2,500.00) as a construction deposit made
payable to the Landlord. This
deposit will be returned in full afier the contractor
has completed Tenant's
Work, provided no
rules
have been violated,
all
Landlord's punch
list
items are corrected, and no
damage has
occurred to the Village.
In the event that a storefront (or other)
barricade is required for the Leased Premises
during construction, Landlord shall install and remove the
same, subject to reimbursement by
Tenant at Landlord‘s standard cost therefor, which shall not
exceed an amount equal to One
Hundred Forty and 00/] 00 Dollars ($140.00) per lineal foot of
barricade. Any graphics therefor
shall be provided by Tenant at its sole
cost, and shall be subject to Landlord’s reasonable
approval.
Tenant must place the electric, water and/or gas meters in its
name with the appropriate
utility companies within five (5) days fi'om the date
Landlord delivers the [gased Premises to
Tenant but in all events prior to the commencement ofany ofTenant's
Work in the Leased
Premises.
All
work to be performed by Tenant
manner, and
in
shall obtain all
shall be performed in a good and workmanlike
accordance with Section 9.04. ofthe Lease. Tenant, at its sole
cost and expense,
permits, licenses or approvals required for Tenant’s Work from
the appropriate
authorities.
Tenant expressly agrem to indemnify, defend and hold Landlord
harmless fiom and
against any liability to any Person or estate for damage to person
or property occurring during the
work proposed hereunder.
D - M:\LEGAL] \PROPERTHSANTANMTGIa (Execution Copy).docx
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Exhibit
B Page 3Page 47 EXHIBIT B
TESLA SPACE NO.
_-_
LANDLORD AND TENANT IMPROVEMENTS
At
the completion of Tenant’s
Work, Tenant
shall deliver to
Certificate ofOccupancy, as well as “as-built” drawings, in
Landlord a copy of its
CADD format, for Tenant’s Work.
SANTANA ROW SHOPPING CENTER
o M;\LEGAL1\PR0PERTY\SANTANA\m1a (Execution Copy).docx
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Exhibit
B Page 4Page 48 Wm
EXHIBIT Q
Storefront signs should have unique interpretations for different stores. Size, design,
of illumination, height, and other characteristics may vary with different types
of stores. The two most important aspects of a sign are that it be clearly visible and that it
accurately reflect the character of the store.
illumination, lack
The Tenant's signage allowance
shall
be limited to a sign area
1.
square feet for each
linear foot ofTenant's store frontage.
All signage must be approved by the Landlord and the City 0f San Jose — Dept. 0f
Planning before Tenant commences sign fabrication, installation or obtaining governmental
approvals. No changes are permitted afier final Landlord approval unless approved in
writing
Landlord. Landlord's approval
may be
granted or withheld
in
by
Landlord's sole and absolute
discretion.
to
Tenant shall submit sign shop drawings to Landlord for Landlord's written approval prior
fabrication. The shop drawings shall show the size of all graphics and letters,
commencing
along with spacing. type of material, color, dimensions
in relation to Leased Premises and
compatible with the construction of the building facade and storefront. The
drawings shall be to scale, showing a front elevation and section through sign, dimensioned to
installation details
show
overall length, height
demising
and
letter
depth, along with distance from end of letters to store
line.
Primary sign types include storefront signs, blade signs, and window signs. Other
may be considered by the Landlord to also communicate the store’s identity might
include options such as: fans, vertical projected signs, awnings, plaques,
pavement graphics and
perhaps balcony treatments.
elements that
A.
Storefront
Sigs
Storefront signs
mounted signs”
image
must reflect the Trade Name ofthe Tenant. The storefront sign (or “flat
San Jose’s Sign Ordinance) can include retail logo, a symbol, or
as referenced in
that represents the store, or
simply the Trade Name. Despite the term “flat” used in the
Sign Ordinance, the Tenant is highly encouraged to explore three-dimensional
design options at
Santana Row, giving storefronts variety, texture and depth.
Signage should have a three-dimensional character and be illuminated
by a light source
of the storefront. To meet City of San Jose lighting
fully integrated with the architecture
requirements, illumination needs to be concealed. Signage cut through a surface
material with
illumination from behind, or reverse channel “halo“ letters are good examples of
concealed
lighting techniques.
Natural materials are the most appropriate for signage fabrication in Santana Row
and
would include: cast, polished or painted metal; painted, stained or natural wood; glazed and
mosaic
is
tile;
etched. cut, edge-lit. or stained glass; cast-stone and craved natural stone. Bas-relief
encouraged, as are unique shapes and dimensional profiles.
All equipment. transformers, raceways, ballasts, crossovers, and conduits
must be
concealed behind the fascia area. Connections and penetrations through the fascia shall
be
restricted. Tenants will be help responsible for damage to and repair of the Landlord’s
fascia due
to the attachment
B.
Display
of signage.
Window Sigs
may also incorporate signs inside the display window. Display window signs
name and logo only. Brand names, brand logos and product trademarks
Display window signs shall be designed to compliment the architectural design
Storefronts
are intended for the store
are prohibited.
and work with the other display concepts ofthe
and approval.
M:\LEGALI \PROPERTYBANTANMTaIa
storefront. All
Are subject
to Landlord’s review
(Execution Copy).docx
Exhibit
C
Page
lPage 49 m
EXHIBIT Q
SIGN—AGE
While meeting the Sign Ordinance for the City of San Jose Code Requirements is to not
exceed more than 25% ofthe total glazed area. Variance inquiry will be submitted
by the Tenant
afier discussion with the Landlord, and at the Tenant’s own expense.
window
Display
draw
signs should generally be set back sufficiently from the storefiont to
attention to the display area. Signs
must be set back a minimum oftwelve inches (1 2”)
behind storefront glazing and are not to be counted against overall sign area. All ballasts,
transformers and other non-illuminated elements must be concealed.
Window Sigs
C.
display
Window
signs
window
signs are not allowed.
may be used
in
any glazed area
Window
in lieu
ofa display window sign or where
signs are intended to display the Trade
Name
and logo only.
Window
signs are applied directly to the surface ofthe glass. These include metal
leaf,
painted, etched, cut and sandblasted lettering. Vinyl signs, and reverse
cut vinyl adhesive signs
on window glazing are discouraged.
While meeting
Sign Ordinance for the City of San Jose Code Requirements, it is
total glazed areas, and shall be counted against the total
signage allowance. Variance inquiry will be submitted by the Tenant afier
discussion with the
Landlord and at the Tenant’s own expense.
not to exceed
D.
at the
more than 25% of the
Plague Siggs
The
store’s
Trade Name,
plaque designs. Mounting
is
identity,
and related imagery
best at eye-level and sign area
is
may be reviewed
part
for wall
of area calculations
mounted
for overall
allowances by Code.
Entrv Area Paving Sigg
E.
Tenants
or logo
may be
may
incorporate the store
name
created with a design on glazed
or logo inset in recessed entry areas. The name
— as a mosaic, in terrazzo, or other approved
tile
paving material. Metal plaque signs may also be inset provided
they maintain a flush walking
surface. If Tenant wishes to extend unique or creative
flooring designs beyond recessed area,
Landlord’s prior approval is required.
F.
Store Address
Sigage
Landlord has designated a comprehensive system ofTenant address and
way finding
within the project. As part of this overall system, all Tenants will be
required to install, at their
own cost, a consistent addressing number. This will fimction as the premises address signage,
exact location will be determined by the Landlord in conjunction with
the Fire Marshall.
G.
its
Undercanopx Signage
If undercanopy
and/or blade signs are permitted by govemmental authorities and
expense, will design, fabricate and install an undercanopy and/or blade
sign per the requirements specified in Landlord’s undercanopy sign criteria.
Undercanopy and/or
Landlord, Tenant, at
its
blade signs shall be considered Signs (as defined in the Lease), thus requiring, among
other
on design and location prior to installation.
things, Landlord's written approval
H.
Additional Siggage per Building
Street level blade signs; larger multi-story, vertical blade signs;
should be discussed ifthc Tenant
M:\LEGAL1 \PROPERTY\SANTANA\T$I&
is
and balcony treatments
interested in submitting ideas in their preliminary design
(Execution Copy).docx
Exhibit
C
Page 2Page 50 w
EXHIBIT Q
SIGNAGE
package. Additional signage ideas will be reviewed and decided on a first-come, first-considered
basis by Landlord.
I.
Prohibited Sign Material
o
Plastic materials
of any kind, including
acrylic letters,
and vacuum-formed
plastic
letters
o
[ntemally illuminated. acrylic-faced channel letters
o
Cabinet signs with illuminated, translucent background and silhouette letters
Signs utilizing paper, cardboard, stickers, 0r decals applied to or located behind
o
the storefi'ont glazing
o
Sandblasted
wood
signs in natural
wood finish with
painted, raised letters and/or
logos.
o
No
Exposed raceways,
ballast boxes. transformers, crossovers or conduit
advertising placards, banners, pennants, names, insignia, trademarks, or other
descriptive or promotional material
may be affixed or maintained on windows, glass fixtures and
equipment or any other area of the storefront, including credit card signs. The name, stamps,
or
decals of the sign manufacturer cannot be displayed on any visible portion ofthe sign. Nonomamental hardware used
J.
t0 attach sign to storefront
may
not be exposed to view.
Access, Power and Compliance
Access panels through Tenant ceilings and/or catwalks required to service Tenant sign
equipment must be provided as per Code and at Tenant’s expense. Access panels required for
concealed transformers must be located
permitted on underside of entry soffits.
at the
backside of entry soffits. Access panels will not be
All illuminated storefront signage shall be on the Tenant’s electrical
circuit, and
controlled by a timer set to the Landlord's established hours. Light levels on
signage lighting
shall
be maintained
in a
controlled by a lockable
manner consistent with the Landlord’s
dimmer switch and circuit.
overall lighting plan
and
shall
be
M:\LEGALI \PROPERTYSANTANMTesla (Execuuon Copy).docx
Exhibit
C
Page 3Page 51 EXHIBIT Q
RULES AND REGULATIONS
Tenant expressly covenants and agrees, at all times during the Term, and at such other
times as Tenant occupies the Leased Premises or any part thereof, to comply, at its own
cost and
expense, with the following:
Any
1.
handling of freight for any purpose, or deliveries to or from the Leased
in a manner which is consistent with good retail practice and
only
such areas, and through such entrances and exits as are from time to time
Premises, shall be
such times,
in
made
at
designated for such purposes by Landlord. Notwithstanding the foregoing,
Tenant may
accept delivery in the manner set forth in Section 6.01. Any truck or machine
used for
handling fi'eight or making deliveries
in the
Leased Premises or
in
the Village shall have rubber
wheels only.
All garbage and other refuse shall be kept inside the Leased Premises in
the type
of container specified by Landlord until such time as it is to be collected. All
garbage shall be
prepared for collection, and collected in the manner and at the times and
places specified by
Landlord. lf Landlord elects to furnish or designate any service for the
removal of garbage and
other refuse, Tenant shall use such service. Tenant shall not be
obligated to pay more for such
service than the prevailing competitive rates charged
by reputable, independent trash removal
contractors for equal service on a direct and individual basis. [f
fumished or billed by or through
Landlord, Tenant shall pay for such service monthly as Additional Rent.
[t is the intent ofthe
parties that the cost ofsuch service shall be separate fiom
and in addition to Tenant’s Share of
2.
Operating Costs. If Landlord does not provide such service, Tenant shall
be solely responsible
for contracting for the removal ofall garbage and other
refuse from the Leased Premises and
shall
pay promptly
3.
bright light to
all
charges therefor.
Tenant shall not (i) suffer, allow or permit any vibration, noise, odor or
flashing or
emanate from the Leased Premises or from any machine or other installation
located therein, or otherwise sufier, allow or permit the same
to constitute a nuisance to or
interfere with the safety. comfort or convenience of
Landlord or of any other occupant or user of
the Village; (ii) display, paint, or place any handbills,
bumper stickers or other advertising
devices on any vehicle(s) parked in the parking area(s) ofthe
Village, whether belonging to
Tenant,
its employee(s), or any other
Person(s); (iii) solicit business or distribute any handbills or
other advertising materials in the Common Areas;
(iv) conduct or permit any activities in the
Village that might constitute a public or private nuisance;
(v) permit the parking of any vehicles
or the placement of any displays, trash receptacles or other
items, so as to interfere with the use
of any driveway, fire lane, corridor, walkway, parking area,
mall or any other part of the
Building; (vi) use or occupy the Leased Premises or permit
anything to be done therein which in
any manner might cause injury or damage
Leased Premises
in
any manner which
in
or about the Village; or
(vii)
use or occupy the
unreasonably annoying to other tenants in the Village
unless directly occasioned by the proper conduct of Tenant's
business in the Leased Premises.
is
4.
Tenant shall secure and protect the Leased Premises, and all
property located
within the Leased Premises. Tenant acknowledges and agrees
that it, and not Landlord, is solely
responsible for securing and protecting the Leased Premises, and all
property located within the
Leased Premises.
5.
Tenant shall use the plumbing within the Leased Premises and the
Commercial
Portion only for the purpose for which it is designed. Tenant shall be
solely responsible
breakage, stoppage or
damage
resulting
costs associated therewith to Landlord
for any
violation ofthis provision, and shall pay any
demand as Additional Rent.
fiom
upon
its
6.
In Tenant’s reasonable judgment and subject to the applicable
provisions of
the Lease, Tenant shall contract for and use termite and pest
extermination services for the
Leased Premises, and with such contractor, as Landlord may from time to
time
designate. Tenant
be obligated to pay more for such service than the prevailing competitive
rate charged
by reputable, independent contractors. If Landlord does not designate such contractor,
Tenant
may employ a reputable contractor of its choosing, subject to Landlord's prior written
shall not
consent.
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Exhibit
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lPage 52 EXHIBIT Q
RULES AND REGULATIONS
Tenant
7.
display
lighted
and maintain
shall install
at all
times a display of merchandise in the
windows (ifany) ofthe Leased Premises and shall keep such display windows well
during all Commercial Portion business hours and for at least one (l) hour thereafier. All
and the arrangement, style, color and general appearance thereof, shall be in keeping
with the character and standards of the Commercial Portion as reasonably determined
by
Landlord.
articles.
Tenant
8.
by Landlord. Tenant
any window cleaning program that may be established
be obligated to pay more for its participation in such window
shall participate in
shall not
cleaning program than the prevailing competitive rate charged by reputable independent
cleaning contractors for equal service on a direct and individual basis.
IfTenant undertakes any construction
9.
activities
window
which cause any work stoppage,
picketing, labor disruption or dispute, so as to interfere with the activities at the Village,
Tenant
shall, upon request from Landlord, immediately suspend any construction work being
performed
in
the Leased Premises giving rise to such labor problems. Tenant shall have no claim for
damages ofany nature against Landlord
Date be extended as a
Tenant
l0.
Leased Premises or
its
for such suspension nor shall the
Term Commencement
result thereof.
promptly obtain all permits, including occupancy permits, for the
use thereof. Tenant shall pay before delinquency all license and permit
shall
and other charges of a similar nature, for the conduct ofany business in, or
any use of, the
Leased Premises. Upon request Tenant shall provide to Landlord a copy of all its
permits,
fees,
including the cenificate ofoccupancy.
Tenant shall use the Village name and logo and include the Tenant Trade Name
and the address and identity ofTenant's business in the Leased Premises in all advertisements
made by Tenant in any manner and in any medium.
l
l.
l2.
Tenant shall not conduct 0r permit to be conducted any auction, fire, “going out 0f
business” or similar type of sale (whether real or fictitious) from the Leased
Premises; provided,
however
that this provision shall not restrict the absolute
Tenant) ofTenant to determine
its
own
promotional or clearance sales held
in
freedom (as between Landlord and
selling prices nor shall
it
preclude periodic, seasonal,
the ordinary course of business.
l3.
Tenant shall not place a load on any floor in the Commercial Portion which
exceeds the load which the floor was designed to carry, or which may result in improper
weight
distribution on such floors.
l4.
Tenant shall not install, operate or maintain in the Leased Premises, or in
any
other area ofthe Commercial Portion, electrical equipment which docs not bear the
Underwriters
Laboratories seal of approval, or which would overload the electrical system or
any part thereof
beyond its capacity for proper. efficient and safe operation.
To
IS.
order,
Tenant
the extent required by Landlord or by any law, rule, regulation, guideline
or
shall
provide sound barriers for
mechanical systems serving the Leased
all
Premises.
l6.
Tenant shall not store, display, sell, or distribute any alcoholic beverages,
dangerous materials. flammable materials, explosives, or weapons in the Leased Premises, or
conduct any unsafe activities therein, unless permitted pursuant to Section 1.01.
l7.
Except to the extent permitted
display or offer for sale
illicit
drugs, or
(ii)
any paraphernalia
in
Section 1.01, Tenant shall not
commonly employed
sell, distribute,
the use or ingestion of
any X-rated, pornographic, lewd, or so-callcd “adult” newspaper, book,
(i)
in
magazine, film, picture, video tape or video disk.
18.
automatic
Tenant
teller
shall not operate or
permit to be operated in the Leased Premises any
machines, or any coin or token operated vending machine or similar device
including telephones, lockers,
amusement devices, and machines for the sale of
beverages, foods, candy, cigarettes or other goods, except for the exclusive use of its
toilets, scales,
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Exhibit
D
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RULES AND REGULATIONS
employees, and provided such items are not visible or located within the
of the Leased Premises.
l9.
No
retail selling
area
radio or television aerial or other device
may be erected by Tenant on the roof
or on any exterior wall ofthe Leased Premises, or the building in which the
Leased Premises is
located, without Landlord's prior written consent. Any aerial or other device installed
without
such written consent shall be subject to removal by Landlord, at Tenant's sole risk and
expense,
without Notice.
20.
Tenant
efforts to provide to
upon five
(5) days' written Notice from Landlord, use reasonable
of license numbers of all of Tenant’s and its employees’
employees fail to park their vehicles in designated parking areas, or if
shall,
Landlord a
vehicles. IfTenant or
its
list
Tenant undertakes or permits the delivery of merchandise or other items except as
herein
provided, Landlord may, in addition to its other rights and remedies under this
Lease, on
the
second and any subsequent violation in any calendar year, charge the owner
ofthe violating
automobile who shall pay to Landlord, on demand, $25.00 per day per vehicle
parking in any
area other than those designated by Landlord and $25.00 per
delivery for deliveries undertaken or
permitted by Tenant in the manner hereinabove prohibited.
2 1.
Tenant
shall
comply with
all
other reasonable and, subject to the parenthetical
in this sentence,
uniformly enforced, rules and regulations fi'om time to time established
by
Landlord or any association formed in the Village which
apply generally to all other stores in the
Commercial Portion (other than Major Tenants).
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Exhibit
D
Page 3Page 54 EXHIBIT E
ANNUAL GROSS SALES STATEMENT FORM
Please mail to:
FRIT
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC
c/o Federal Realty Investment Trust
A'ITN: Sylvia Korzan, Senior Sales Analyst
I626 East Jefferson Street
Rockville, Maryland 20852-
Phone:
301-998-
Fax:
301-998-
Email:
salesreporting@federalrealty.com
TenantName: Tesla
Property: Santana
Row
Date:
l
hereby certify
that, to the best
of Tenant’s knowledge, Gross Sales as defined
in the
Lease for
the above location are as follows:
Month:
Sales
Amount:
Tesla Motors,
lnc.,
a Delaware corporation
By:
Name and
Title (print):
Phone No.E-mail:
M:\LEGALI \PROPERTYSANTANMTfila
[Execution Copy)‘docx
Exhibit
E Page 1Page 55 EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
General Prohibitions by City of San Jose
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Exhibit F Page
1Page 56 EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Prohibitions from
CC&Rs for Hotel Valencia
Without limiting the generality of the provisions of Section 10.5, the following uses shall not
be
permitted within any Parcel (unless otherwise indicated below):
Any
10.6.
use which constitutes a public or private nuisance or which emits or generates
litter, dust or dirt which can be heard or smelled outside
an obnoxious odor, noise,
of any Improvements located on any Parcel;
Any
10.6.
use which produces or
is accompanied by any unusual fire, explosive 0r other
damaging or dangerous hazards (including the storage, display or sale of explosives
or fireworks, other than de minimis amounts of fireworks for sale to
consumers to
the extent permitted by Legal Requirements);
10.6.
Any
10.6.
Any
shooting gallery or gun range;
operation primarily used as a storage warehouse operation and
any assembling,
refining, smelting, industrial, agricultural, drilling or mining
operation;
manufacturing,
Any
l0.6.
automobile body shop or repair operation, including automobile servicing or
repair work (e.g., oil change, tire change, body or paint shop, tune-up,
brake or
mumer service);
10.6.
Gasoline or automobile service stations;
Any
10.6.
residential
use,
including,
without,
single
family dwellings, townhouses,
condominiums, other multi-family units and other forms of living quarters, sleeping
apartments or lodging rooms (other than in connection with the operation
of a
transient hotel):
Any
10.6.
veterinarian, veterinary hospital or animal raising facilities
(except that this
prohibition shall not prohibit pet shops);
10.6.
Any mortuary or funeral home;
10.6.
Any
facility or
or
establishment primarily selling or exhibiting sexually explicit, or
illegal drug-related paraphernalia or featuring strip tease
pornographic materials or
acts or
Ben
nude dancing.
& Jerfl’s Ice Cream &
Frozen Yggurt
Exclusive Use:
(i)
Tenant
is
A. Notwithstanding anything to the contrary contained in this Lease, provided
not in default of this Lease beyond any applicable notice and cure
period, and
(ii) Tenant is open and continuously operating a business in the
Leased Premises in accordance
with Tenant’s Pennined Use, Landlord hereby agrees not to
lease, or permit the use of, any
portion of the Village to any business primarily selling ice cream
and frozen yogurt
("Competing Business"); provided, however,
that Landlord shall not be obligated to violate
any
unlawful competition or unlawful restraint of trade law. The term “primarily”
shall
more than twenty percent (20%) of the total Gross Sales per annum. Notwithstanding
antitrust.
mean
anything to the contrary contained herein, a “Competing Business” shall not
include the
operation of the business offering fiozen yogurt which will initially operate
under
the trade
“Red Mango”, provided, however,
name
that said business shall not be located immediately adjacent to
the Leased Premises.
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision
shall not be
(i) any tenants in the Village, their successors and assigns, who currently
applicable to
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Exhibit
F Page 2Page 57 EXHIBIT F
SANT_ANNR_O_W
EXCLUSIVE AND PROHIBITED USES
leases
which permit such tenants
to operate a
Competing Business, or
to
(ii)
any hotel within the
Village.
Best
Bu!
Exclusive Use: Landlord
shall not permit any person or entity other than Tenant in space
leased
from Landlord within a radius of one (1) mile of the Village as measured
from Tenant’s front door, to any tenant or occupant that primarily sells,
rents, services and/or
warehouses (and, if applicable, installs in motor vehicles) the following product
directly or indirectly
categories:
equipment or appliances (including, without limitation, televisions, stereos, and video
recorders); major household appliances (including, without limitation,
refrigerators, fi'eezers,
electronic
microwave ovens, dishwashers, washers and dryers); personal computers, peripherals
and
soflware; entertainment sofiware (including compact discs, music videos and prerecorded
tapes);
or any substitutes for or items which are a technological evolution
of the foregoing items,
stoves,
without Tenant‘s prior written consent, which may be granted or withheld
in Tenant’s sole and
absolute discretion; provided, however, that the foregoing shall not
apply to any tenant or
occupant of the Village (i) that is not a consumer electronics retailer, and
(ii) is of greater than
ten thousand (10,000) leasable square feet.
Further, the foregoing restriction shall not apply to
any tenant or occupant of the Village outside “Tenant’s Exclusive Use Area”, as depicted
on the
site
plan attached hereto as Exhibit B.
Prohibit Use: Tenant shall have the right to
(a) sell gourmet and other food items in support of
to the foregoing product categories, and
(b) use up to ten percent (10%) of the
Premises for a non-alcoholic beverage kiosk or bar, including seating
area, with food, snack and
bakery items incidental thereto.
and incidental
Blowfish Sushi To Die For
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease,
provided
Default of this Lease beyond any applicable cure period, and
(ii) Tenant is
operating a full service, sit-down restaurant, with wait service
and bar and otherwise in
accordance with the Permitted Use, then Landlord hereby agrees not
to lease any portion of the
Commercial Portion as a "Competing Business". A "Competing Business"
is hereby defined as:
(A) a restaurant with a sushi bar; or (B) a restaurant which ofi‘ers more than twenty
(20) seats for
dining and which primarily serves sushi.
(i)
Tenant
is
not
in
Notwithstanding anything to the contrary in the foregoing sentence, this
provision shall not be
applicable to (X) any tenants in the Commercial Portion,
their successors and assigns, who
currently have leases which permit such tenants to operate a
Competing Business; or (Y) any
hotel. In the event that any of such tenants have the
right to change the trade name and use of
their premises to a Competing Business with Landlord's
consent, to the extent permitted by law,
Landlord agrees to withhold its consent or approval to such change of
trade name and use.
Borders Books
& Music
Exclusive Use: From and afier the Effective Date, Landlord will not
execute any lease for
premises in the Village permitting such tenant (including, without limitation,
any subtenant,
licensee. concessionaire or occupant of any portion of the
Village) to operate a bookstore for the
sale of books, periodicals (including newspapers), and related items,
excepting, however, a
store
books and/or periodicals as an ancillary and incidental part of its business,
provided
books and/or periodicals are typically sold by such tenant in its other stores, and
selling
(i)
(ii)
than one hundred (100) square feet of surface display area
books and/or periodicals (the "Tenant's Exclusive Use").
is
devoted to the
retail
not
more
display of such
The provisions of this Article 23(b)
Landlord fi'om entering into a lease with a kiosk or newsstand—type
operator
primarily selling newspapers and magazines within any part of the Village
except in front of
Buildings 5 and 6...
shall not restrict
Burke Williams Dag Sga
Exclusive Use: A. Notwithstanding anything to the contrary contained in this
Lease, provided
Tenant is not in Default of this Lease beyond any applicable cure period and
(ii) Tenant is
(i)
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F Page
3Page 58 EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
operating a business in the Leased Premises
in accordance with the Permitted Use as a
"Burke Wiiliams Day Spa" spa, Landlord hereby agrees not to lease, or permit the use of, any
portion of the Commercial Portion as a "Competing Business". A "Competing Business" is
hereby defined as any business which: (i) operates as a freestanding spa; and (ii) occupies Floor
Area which is in excess of fifiy percent (50%) ofthe Floor Area of the Leased Premises.
B. Notwithstanding anything to the contrary in the foregoing, this Addendum H shall not be
applicable to
any tenants
(i)
in
the Village. their successors and assigns,
leases in effect ("Existing Tenants"); or
any Major Tenant
who
currently have
afier the
Notwithstanding the foregoing, to the extent Landlord has the right to approve a
the use of the leased premises of any Existing Tenant, and such approval may be
(ii)
that enters into a lease
date hereof.
change
in
reasonably withheld or withheld in Landlord's sole discretion, Landlord shall not approve a
change that would permit the use of such leased premises as a Competing Business during the
Term of the Lease.
Centugx Theatre
Exclusive Use:
First Class
not
Subject to the express rights of existing tenants in effect as of the date the
was executed,
Original Lease
for so long as Tenant is operating the Premises primarily as a
motion picture theater complex (including periods of Excused Closure), Landlord will
use 0r permit to be used any land or space in the Project (other than the Premises),
or on any other land adjoining any part of the Project which is owned or controlled by Landlord
sell, rent,
or a Landlord Affiliate, for use as a motion picture theater or for the commercial exhibition of
motion pictures, films or videos (collectively, “Competing Theater Uses”) or. to the extent within
Landlord’s control. for the advertisement or sale of tickets for any movie theater other than the
Premises (and Tenant’s other theaters); except that, notwithstanding the foregoing “exclusive” in
favor of Tenant, Landlord shall be permitted to exhibit motion pictures, films or videos within
Common
Area 0f the Project on not more than four (4) occasions per Lease Year, none of
more than two (2) consecutive days, provided that (l) the motion pictures, films
or videos exhibited by Landlord in the Common Areas are not and have not been (and are not
the
which
shall last
expected to be)
in
general distribution in First Class motion picture theaters at the time in
question, or within twelve (l2)
afier the time
in the
months
prior to the time in question or within three (3) month
in question, and (2) the exhibition of motion pictures, films or videos
by Landlord
Common
Areas
Theater Uses shall
Showscan-type
shall
also
theaters,
be for charitable or other not-for-profit purposes. The Competing
include
so-called
and ride/simulator
“specialty theaters”
theaters).
(e.g.,
I-Max, I-Works and
..
Subject to the express rights of existing tenants of the Project under their leases in effect as ofthe
date the Original Lease was executed, so long as the Premises is operated primarily as a
Class motion picture theater complex (and for periods 0f Excused Closure where
immediately prior thereto the Premises was operated primarily as a First Class motion picture
theater complex). Landlord will not sell or sufier 0r permit to be sold
(A) prepared popcorn from
First
anywhere within the Project (however,
(l) specialty retail stores that sell
“gourmet” popcorn
be
permitted to sell prepared, gourmet popcorn from premises located north of
Olin Avenue, and (2) restaurants and bars and hotels within the Project shall be permitted to sell
0r provide prepared popcorn to their patrons solely for on-premises consumption (e.g., popcorn
served in a bowl to patrons of a restaurant or bar)) (B) bulk candy (i.e., candy that is not preshall
packaged and
anywhere within the “Candy Restricted Zone” which is
retail stores that sell “gourmet” candies (such as
"Godiva” chocolate shops operated as of the Effective Date) shall be permitted to sell such
“gourmet” candies from premises no closer than one hundred feet (100’) from the Premises), or
(C) cofiee and espresso drinks served primarily on a “takeaway" or “t0 go” basis from anywhere
is
sold by the weight) from
depicted on the Site Plan (however. specialty
within the “Coffee Restricted Zone”
restrictions.
shown on
the Site Plan.
Landlord covenants and agrees that
(i)
neither
In addition to the
foregoing
of the Adjacent Stores (nor any
separately demised premises therein) shall be used or operated primarily as a take-out restaurant
or primarily for the sale or service of food and/or beverage items intended for off-premises
consumption
that are otherwise prohibited
no “take-away” counter for
the sale of such prohibited foods and/or beverages located in either of the Adjacent Stores shall
be directly accessible from (or open into) the “Century Court Area" shown on the Site Plan.
by
this Section;
o MALEGALI\PROPERMSANTANAmsI. (Execution Copy).docx
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Exhibit
F Page 4Page 59 EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Notwithstanding the provisions of Tenant's exclusive rights regarding
bulk candy sales as set
ofthe Lease, Tenant hereby consents to the sale of bulk candy
by a Grocery
Store within the Candy Restricted Zone, provided that
the
display of bulk candy shall not be
(i)
visible through the storefront windows of the Grocery
Store, (ii) no signage or advertising for the
sale of bulk candy shall be placed in the storefront or visible
from the Common Area and (ii) the
Grocery Store shall not devote more than three percent (3%) of its
forth in Section 13.
display area for the display
and sale of bulk candy...
Prohibited Use: [In addition to the above.] Landlord shall not
permit or suffer any premises
within the Project to be used for any [. .] Obnoxious Uses.
1n addition, Landlord will not use or
permit to be used any other premises or equipment owned
or controlled by Landlord or by any
other occupant of the Center (including, without limitation,
the Adjacent Stores) in such manner
.
would result in any noise or vibration interfering with the acoustics
required by Tenant in its
use of the Premises, 0r as would result in any offensive
odors penetrating the Premises. Without
limitation, Landlord covenants and agrees that the Adjacent
Stores shall not contain or be used
as
for
any business or other use
that generates sound, noise or vibrations at a
level that exceeds
seventy-eight (78) dba (or seventy-eight (78) dbspl, for
fiequencies below the audible range)
measured at the outside ofthe demising walls of the Premises.
“Obnoxious Uses"
is defined as: a use which is repugnant
to the sensibility of the community in
general. including, without limitation,
(a) a store primarily selling or leasing sexually explicit
materials, (b) a movie theater primarily showing "X"
rated or other sexually explicit movies,
(c) a massage parlor, (d) a so-called "head shop" 0r drug
paraphernalia store, (e) a store showing
so-called "peep" shows, (f) a facility featuring
strip tease acts, nude dancing or similar
activities,
(g) a store primarily selling items concerning sexuality (e.g. a so-called "sex
shop") or (h) a
mortuary; and (6) so long as the Project is used predominately
for retail and/or
purposes, the primary use of the Premises shall be for
Chili’s Grill
retail
entertainment
and/or entertainment purposes.]
& Bar
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided
Default of this Lease beyond any applicable cure period
and (ii) Tenant is
operating a full service restaurant in the Leased Premises
under the trade name "Chili's Grill and
Bar" in accordance with the Permitted
Use, Landlord hereby agrees not to lease, or permit the use
of, any ponion of the Commercial Portion as a "Competing
Business". A "Competing Business"
is hereby defined as any full service
restaurant operating under any of the following trade
names:
T.G.I. Fridays, Ruby Tuesday, Outback Steakhouse, Applebee's
or Roadhouse Grill.
(i)
Tenant
is
not
in
Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
(i) any tenants in the Commercial Portion, their
successors and assigns, who
currently have leases which permit such tenants to operate
a "Competing
applicable to
Business"; or (ii) any
event that any 0f such tenants have the right to change
the trade name and use of
their premises to a Competing Business with Landlord's
consent, to the extent permitted by law,
Landlord agrees t0 withhold its consent or approval to such
change oftrade name and use.
hotel.
In the
Club One
at
Santana
Row
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided
(i)
in Default of this Lease beyond any applicable
cure period and (ii) Tenant is
operating a business in the Leased Premises for the Permitted
Use, Landlord hereby agrees not to
lease 0r otherwise permit the use of any portion of the
Village or any other building owned by
Landlord or its affiliates within a six block radius of the Village to a "Competing
Tenant
is
not
Business".
"Competing Business"
is
hereby defined as any business which
(i)
A
operates a fitness club, or
operates a pool facility (exclusive of the Hotel or the Residential
Portion), or (iii) offers
fitness equipment training, or (iv) offers exercise classes, or
provides
personal training, or (vi)
(v)
provides physical therapy (except for a medical office which provides
therapy by a licensed
medical professional). Subsections (ii), (iii), (iv),
(v) and (vi) are hereinafier referred to as
“Ancillary Uses”. It is understood and agreed that a Competing
Business shall be deemed to
include any one of the Ancillary Uses only if the Leased
Premises are used for such Ancillary
Use.
(ii)
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Exhibit F Page 5Page 60 W
EXHIBIT F
EXCLUSIVE AND PROHIBITED USES
Notwithstanding anything to the contrary
applicable to
in
in
the foregoing sentence, this provision shall not be
to operate a "Competing Business" or
on-site fitness club provided such facility does not (a) exceed
fifiy—four (2,454) square
feet
who
the Village, their successors and assigns,
which permit such tenants
leases
of an
(i)
any tenants
of Floor Area and/or
(b) offer fitness
(ii)
currently have
Landlord’s operation
two thousand four hundred
equipment
training,
classroom
instruction 0r personal training.
9M
Prohibited Use:
Section 1.0l .0:
cakes and pies, and a limited
coffee,
fresh
teas,
The operation of a bakery
menu of gourmet
featuring gourmet breads, pastries,
sandwiches, salads and beverages, including
squeezed juices and sofl drinks, and for no other purpose.
Tenant’s
kitchen/baking facility at the Leased Premises shall not exceed one thousand three hundred
(
l
,300) square feet of Floor Area.
Cohiba Cigar Lounge
Exclusive Use:
Tenant
Notwithstanding anything to the contrary contained
in this
Lease, provided
not in Default of this Lease beyond any applicable cure period and
is
(ii)
Tenant
(i)
is
operating a business in the Leased Premises in accordance with the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business". A "Competing
Business" is hereby defined as any business which primarily sells tobacco products.
Notwithstanding anything to the contrary
in the
foregoing sentence, this provision shall not be
(i) any tenants in the Village, their successors and assigns, who currently have
which permit such tenants to operate a "Competing Business"; or (ii) any Major Tenant.
applicable to
leases
Consuelo Mexican Bistro
Exclusive Use:
(i)
Tenant
Tenant
is
A. Notwithstanding anything to the contrary contained in this Lease, provided
in default of this Lease beyond any applicable notice and cure period, and (ii)
open and continuously operating a Mexican restaurant in the Leased Premises in
not
is
accordance with the Permitted Use set forth
in Section 1.0] .0, above, Landlord hereby agrees not
any portion of the Commercial Portion as a Competing Restaurant,
Landlord shall not be obligated to violate any antitrust, unlawful
to lease, or permit the use of.
provided, however. that
competition or unlawful restraint of trade law.
full
service restaurant (l) which provides
waitresses, (2)
and
whose menu
consists of
sit
A Competing Restaurant
down
is
hereby defined as any
table service for patrons utilizing waiters
more than twenty percent (20%) of Mexican food
and
items,
(3) that has an average per
customer check (including food and beverage) of between Fifieen
Dollars ($15.00) and Twenty-Five Dollars ($25.00) ("Average Customer Check"). The Average
Customer Check
commencement of the second (2nd) Lease Year, and at
commencement of each Lease Year thereafier, to an amount equal to the Average Customer
Check for the preceding Lease Year multiplied by a fraction, the numerator of which shall be the
Consumer Price Index as of the most recent date prior to such adjustment and the denominator of
which shall be the Consumer Price Index as of twelve (12) months prior thereto. The Consumer
Price Index shall be deemed to mean the U.S. Bureau of Labor Statistics, [Revised] Consumer
shall
be increased
at the
the
"United Slates City Average for Urban
Price Index.
Selected
Data (1982-84 =
100)
all
Wage
Earners and Clerical Workers,
items (seasonally adjusted)"
If
such index shall be
discontinued. then any successor consumer price index of the United States Bureau of Labor
Statistics, 0r
an alternate means of cost price measurement reasonably acceptable to Landlord and
Tenant, shall be used.
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision shall not be
(i) any tenants in the Village, their successors and assigns, who currently have
which permit such tenants to operate a Competing Restaurant; or (ii) any restaurant located
applicable to
leases
within any hotel in the Village.
D M:\LEGALI\PROPERTY\SANTANA\T$la (Exnculion Copy).docx
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Exhibit F Page 6Page 61 w
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
M
No kiosk within one hundred feet (100') of the storefront ofthe Leased Premises
contemporary casual apparel or accessories substantially similar to the apparel or
accessories sold under the Tenant Trade Name.
Exclusive Use:
shall sell
Fantasia Tea Cafe’
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
is not in Default ofthis Lease beyond
any applicable cure period, (ii) Tenant is operating
a business in the Leased Premises in accordance with the Permitted
Use, and
Tenant
Tenant
sells
(iii)
pearl drinks, then Landlord hereby agrees not to lease, or permit
the use of, any portion
of the
Commercial Portion which has frontage on Santana Row as a "Competing
Business".
"Competing Business" is hereby defined as any business which
primarily sells pearl drinks.
A
Notwithstanding anything to the contrary in the foregoing, this Addendum
shall not be applicable
to (i) any tenants in the Commercial Portion, their
successors and assigns, who
currently have
leases in effect
tenants, their successors or assigns, to operate a
"Competing
any hotel which may be part of the Village; or (iv) any
the Commercial Portion who sell pearl drinks on an incidental
basis.
Business";
tenants in
which permit such
any Major Tenant;
(ii)
(iii)
Gucci
Prohibited Use: [LL Covenants] Landlord represents and warrants to
Tenant that the Permitted
Use does not and will not violate the provisions of any other Lease
or Exclusive Uses of any
other present or future tenant, or any superior mortgage
or insurance policy and does not violate
any Zoning Regulation afiecting the Village. The Village shall be operated
and at all times
maintained as a high-quality and first-class retail complex and
that Landlord shall use all
reasonable efforts to ensure that retail space in the Commercial
Portion will be leased only to
tenants whose nature. character, reputation and prestige is
consistent with the image of the
Village as a high-quality and first-class retail complex and
who shall not operate their stores as
discount, cut-rate or outlet stores. Also pursuant to the zoning
regulations applicable to the
Village, the maximum cumulative gross building area
allowed for all restaurant, bar and
nightclub uses shall not exceed eighty thousand
(80,000) square feet at
time.
retail
any
InSpa
Exclusive Use: Notwithstanding anything to the
contrary contained in this Lease, provided
(i)
is not in Default of this Lease
beyond any applicable cure period and (ii) Tenant is
Tenant
operating a business in the Leased Premises in accordance
with the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing
Business".
"Competing
Business" is hereby defined as any business that primarily
operates as a day spa offering body
care services. such as by way of example, massages, facial
A
services, waxing,
manicures and
pedicures.
Notwithstanding anything to the contrary
in the foregoing sentence, this provision
shall not be
any tenants in the Village, their successors and assigns, who as of the date ofthe
execution of this Lease have leases which permit such tenants to
operate a "Competing Business"
applicable to
(i)
(“Existing Tenants”) or
expansion of any Existing Tenant space or (iii) any Major
Tenant.
Notwithstanding the foregoing, Landlord agrees not to
(a) modify the terms of any lease for space
within the Village so as to permit a Competing Business except
as permitted in subsection (ii) of
this paragraph or (b) to the extent Landlord has the
right to withhold its consent to a change of
use for a tenant within the Village. without being required to recapture
such tenant’s premises,
Landlord agrees not to consent a change in use by such tenant that would
allow such tenant to
(ii)
operate a Competing Business.
Lavande Nail 82a
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
not in Default of this Lease beyond any applicable cure period
and (ii) Tenant is
operating a business in the Leased Premises in accordance with the
Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
"Competing
Tenant
is
A
D MALEGALI \PROPERTYxSANTANMTsIa (Execunon Copy).docx
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ExhibitF Page 7Page 62 w
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Business"
hereby defined as any business which primarily operates as a nail salon offering
is
manicure and pedicure services.
Notwithstanding anything to the contrary
applicable tleases
(i)
which permit such tenants
occupied by Aveda. Lather,
in
the foregoing sentence, this provision shall not be
successors and assigns, who currently have
"Competing Business"; (ii) the spaces currently
in the Village. their
any tenants
W
to operate a
Salon, Bellarmine Barber or Burke Williams or
any Major
(iii)
Tenant.
Left
Bank
Exclusive Use:
Tenant
(ii)
Notwithstanding anything to the contrary contained
in this Lease,
provided
(i)
not in material, monetary Default of this Lease beyond any applicable cure period and
is
Tenant
is
operating a business in the Leased Premises as a French Brasserie with a full
service restaurant, with wait service and bar and otherwise in accordance with the Permitted Use,
Landlord hereby agrees not to lease any portion of the Commercial Portion as a "Competing
A
Business".
"Competing Business"
is
hereby defined as any restaurant which operates as a
casual fine dining brasserie or bistro greater than four thousand (4,000) square feet (including
seating areas) with waiter and waitress service, which
(i)
all
primarily offers French food with
entrees in the price range of $14.00 to $18.00 (the "Initial Price Points"), as annually adjusted in
accordance with the Consumer Price Index (as defined below) over the Term (the "CPI
Adjustment"); and (ii) serves beer and wine.
in the foregoing, this Addendum VII shall not be
any tenants or occupants in the Village, their successors and assigns, who
currently have leases or other agreements in effect which permit such persons, their successors or
assigns, to operate a "Competing Business"; or (ii) any fine dining French restaurants such as the
Notwithstanding anything to the contrary
applicable to
(i)
current operations of
La
Folie, Fleur
de Lys. Sent Sovi, or Chapeau
in existence as
0f the date
hereof.
As used
this
in
Addendum,
the "CPI Adjustment" shall
anniversary of the Opening Date by multiplying the
be determined each year on the
Price Points by a fraction, the
numerator of which shall be the Consumer Price Index on the 25th day of the calendar month
immediately preceding the date of such adjustment, and the denominator 0f which shall be the
Consumer
Price Index
Initial
on the Opening Date.
As used herein. "Consumer Price Index" shall mean the Consumer Price Index (all items) for
Urban Wage Eamers and Clerical Workers (revised), 1982-1984 Base ("CPI-W"), as published
by
United
the
States
Department
of Labor,
Bureau
Francisco/Oakland/San Jose Metropolitan Area, or
its
of Labor
successor. If the
Statistics
CPI-W
(or
for
its
the
San
successors)
should cease to be available. Landlord and Tenant shall jointly designate a commercially
reasonable alternative index.
Maggiano’s
Exclusive Use:
Tenant
is
Notwithstanding anything to the contrary contained
in this Lease,
not in Default of this Lease beyond any applicable cure period and
operating a
full
provided
(ii)
(i)
Tenant
is
service Italian restaurant in the Leased Premises in accordance with the Permitted
Use, Landlord hereby agrees not to lease. or permit the use
Portion as a "Competing Business."
A
of, any portion of the Commercial
"Competing Business" is hereby defined as any full
service restaurant greater than four thousand (4,000) square feet with waiter and waitress service,
offering alcoholic beverages and which primarily serves Italian food.
Notwithstanding anything to the contrary
in the
foregoing sentence, this provision shall not be
(i) any tenants in the Commercial Portion. their successors and assigns, who
currently have leases which permit such tenants to operate a "Competing Business"; or (ii) any
hotel. In the event that any of such tenants have the right to change the use of their premises to a
applicable to
Competing Business with Landlord's consent,
withhold
its
to the extent permitted
by law, Landlord agrees
to
consent or approval l0 such change of use.
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Exhibit
F Page
8Page 63 w
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Orvis
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
not in Default of this Lease beyond any applicable cure period and
(ii) Tenant is
operating a business in the Leased Premises in accordance with the
Permitted Use, Landlord
hereby agrees not t0 lease any portion of the Village as a "Competing Business".
"Competing
Tenant
is
A
Business"
hereby defined as any business which primarily sells hunting and
fly fishing apparel
and equipment, such as way of example only, but not
by way of limitation, LL. Bean.
For
purposes of this Lease, “primarily” shall mean twenty-five percent
(25%) or more of Tenant’s
Floor Area is devoted to the display and sale of hunting and fishing
apparel and equipment.
is
Notwithstanding anything to the contrary
in the foregoing sentence, this provision shall not
be
the Village, their successors and assigns, who currently
have
leases which permit such tenants to operate a "Competing
Business"; or
Major
applicable to
(i)
any tenants
in
(ii)
any
Tenant
including Pro Bass and Cabelas or (iii) a general sporting good
store such as, by way 0f example
only but not by way of limitation, Spons Authority, Dick’s, Big
5, Sports Chalet, Champs,
Copelands, Any Mountain, REI or Eastern Mountain Sports.
Paper Source
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided (i)
not in Default of this Lease beyond any applicable cure
period and (ii) Tenant is
operating a business in the Leased Premises in accordance
with the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
A "Competing
Tenant
is
Business"
is
hereby defined as any business which primarily
invitations or displays a merchandising unit
sells fine handmade paper or custom
of paper, stationery, invitations and envelopes in
high in size and is substantially similar to the unit
excess of eight (8) feet wide by five (5) feet
shown on Exhibit B-l attached hereto and incorporated herein
by reference. As way of example,
but not by way of limitation, a "Competing Business"
shall mean a business operating under the
tradename “Swoozies” or “Kate’s Paperie". For purposes of
this
“primarily”
Lease,
(30%) or more of a tenant’s floor area
paper or custom invitations.
thirty
is
shall
mean
devoted to the display and sale of fine handmade
Notwithstanding anything to the contrary in the foregoing sentence,
this provision shall not be
applicable to (i) any tenants in the Village, their
successors and assigns, who currently have
leases which permit such tenants to operate a "Competing
Business"; or (ii) any Major Tenant; or
(iii) any greeting cards or gifl stores such
as, by way of example only but not
limitation, Hallmark, Papyrus. or
Blue Tulip; or
example only but not by way of limitation, Party
(iv)
any party goods stores such
City, Party
as,
by way of
by way of
America or Party World.
Pizza Antica
Exclusive Use: A. Notwithstanding anything to the contrary
contained in this Lease, provided
(i) Tenant is not in default of this Lease beyond any applicable
notice and cure period, and (ii)
Tenant is open and continuously operating a restaurant in the
Leased Premises in accordance
with Tenant’s Permitted Use, specifically including the sale of
pizza for on and off premises
consumption, Landlord hereby agrees not to lease, or permit the use
of, any portion of the
Commercial Portion as a Competing Business, provided. however, that
Landlord shall not be
obligated to violate any antitrust, unlawful competition or
unlawful restraint of trade law. A
Competing Business is hereby defined as any restaurant which "Primarily"
serves pizza. As used
herein, the term "Primarily" shall mean that more than fifieen
percent (15%) of such restaurant's
gross sales are derived finm the sale ofpizza.
B. Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
(i) any tenants in the Commercial Portion, their successors
and assigns, who
currently have leases which permit such tenants to operate a
Competing Business; or (ii) any
hotel in the Village. 1n the event that in any Lease Year Tenant’s
Gross Sales are below Tenant’s
Annual Breakpoint for such Lease Year, then commencing in the following
applicable to
Addendum
D
-
Lease Year,
shall
lapse and be
ofno
M:\LEGALI\PROPERTY\SANTANA\Tcsla
and
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(Execution Copy).docx
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this
effect.
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Exhibit
F Page 9Page 64 EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Pluto’s
Exclusive Use: Notwithstanding anything
Tenant
is
to the contrary
contained in this Lease, provided
not in Default of this Lease beyond any applicable cure period and
operating a business
in the
Leased Premises
(ii)
Tenant
(i)
is
accordance with the Permitted Use, Landlord
in
any portion of the retail in-line space within Buildings 1, 3, 4, 5, 6,
7, 8, and l3 of Commercial Portion of the Village as identified on Exhibit A-l, (b) any of the
permanent kiosks located in the Village (and designated as spaces 106, 107 and 108 on Exhibit
hereby agrees not to lease
A-_l)
and
(c)
(a)
any temporary kiosks within the Common Area surrounding Building 13 (and
"No Compete Kiosk Area" on Exhibit A-l) as a "Competing Business". A
designated as the
"Competing Business"
is
hereby defined as any business which operates as a
fast
casual counter
service restaurant (or kiosk) which primarily serves California fresh hand tossed green salads and
hand carved roasted and grilled meat sandwiches, such as, by way of example only, but not by
way of limitation, Comer Bakery, Fresh Choice, Panera and Buckhorn. Notwithstanding the
foregoing, in no event shall a restaurant featuring ethnic cuisine or a New York style delicatessen
be considered a Competing Business. [n addition, Tenant acknowledges and agrees that the "No
Compete Kiosk Area" shall not include any kiosks that are temporary in nature and in connection
with a special event such as the Italian Festival. wine tasting events or the farmer's market.
B.
Notwithstanding anything to the contrary
applicable to
any tenants
(i)
in the
foregoing, this provision shall not be
in the Village, their successors
leases in effect ("Existing Tenants"); 0r
(ii)
any Major Tenant
and assigns, who currently have
that enters into a lease
afier the
date hereof.
Priscilla of
Boston
Exclusive Use: So long as
(a) Tenant is operating the Leased Premises for the Permitted Use and
not in Default with respect to any monetary and/or material obligation hereunder,
then during the Term, Landlord agrees not to lease any portion of the Commercial Portion of the
Village for any business which primarily sells and/or rents women’s bridal wedding gowns (the
(b)
Tenant
is
“Exclusive Use”).
For the purposes of
this paragraph,
a tenant or other occupant of the
Commercial Portion of the Village will be deemed to primarily sell and/or
wedding gowns if ( 1) such tenant or occupant is not a national or regional
(2) the sale and/or rental
of women’s
rent
women’s
retail
bridal
establishment;
wedding gowns is not made in connection with the
sale and/or rental of women’s bridal wedding gowns in substantially all of such tenant’s or
occupant’s other stores; or (3) more than one percent (1%) of such tenant’s or occupant’s gross
bridal
from the sale and/or rental women’s bridal wedding gowns. The foregoing
Exclusive Use does not apply to (l) existing tenants and/or occupants of the Village, their
successors and assigns as of the date hereof, whose leases or operational agreements permit such
tenants and/or occupants, their successors and assigns. to operate for the Exclusive Use, except
sales are derived
the extent such tenants and/or occupants, their successors or assigns, request a change of
use or enter into an assignment or sublease that includes a change of use and Landlord has the
that, to
right to
deny such request for the reason
changed use would then violate
that the
this
Exclusive
Use; and/or (2) any Major Tenant.
Smith Alder
Exclusive Use:
(i)
Tenant
Tenant
is
is
A. Notwithstanding anything to the contrary contained
in this
Lease, provided
not in default of this Lease beyond any applicable notice and cure period, and
open and continuously operating a business
in the
Leased Premises
in
(ii)
accordance with
Tenant's Permitted Use, Landlord hereby agrees not to lease any portion of the Village to any
business owned and operated by Tom Teifer or any store operating under the trade names "Tom
Teifer" or
"Tom
Teifer's
Women's Wear" ("Competing
Landlord shall not be obligated to violate any
restraint of trade law.
Business"); provided, however, that
antitrust,
unlawful competition or unlawful
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision shall not be
applicable to (i) any tenants in the Village, their successors and assigns, who currently have
leases in effect;
(ii)
any Major Tenant
at
any time; or
(iii)
any hotel which may be part of the
Village.
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Exhibit
F Page 10Page 65 EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Straits
Santana
Exclusive Use:
Row
A.
Provided
notice and cure period, and
Leased Premises
(i)
(ii)
Tenant
Tenant
is
is
not in default of this Lease beyond any applicable
open and continuously operating a business in the
accordance with Tenant‘s Permitted Use, Landlord hereby agrees
not to lease,
Commercial Portion as a Competing Business, provided,
however, that Landlord shall not be obligated to violate
any antitrust, unlawful competition or
unlawful restraint of trade law. A Competing Busine
ss is hereby defined as any full service
restaurant with waiter and waitress service which
primarily serves Malaysian and Singaporean
in
or permit the use of, any portion of the
food.
B. Notwithstanding anything to the contrary in the forego
ing sentence, this provision shall not be
applicable to (i) any tenants in the Commercial
Portion, their successors and assigns, who
currently have leases which permit such tenants to operate
a Competing Business; or (ii) any
hotel located in the Commercial Portion, or
(iii) the park area of the Commercial Portion located
between Buildings 8 (the "Park").
&
Roux Louisiana Kitchen
Exclusive Use:
Notwithstanding anything to the contrary contained
in this Lease, provided (i)
not in default of this Lease beyond any applicable notice
and cure period, and (ii) Tenant
is open and continuously operating
a Southem/Fexan cuisine restaurant in the Leased Premis
es in
accordance with the Permitted Use set forth in Section
1.01.0, above, Landlord hereby agrees not
to lease, or permit the use of, any portion of
the Commercial Portion as a Competing Restaur
ant,
provided. however, that Landlord shall not be
obligated to violate any antitrust, unlawful
competition or unlawful restraint of trade law. In
the event of Transfer under Article 15 of the
Lease, the provisions set forth in this Addendum
shall be null and void and of n0 further force
or
effect.
“Competing Restaurant” is hereby defined as
any full service restaurant (1) which
provides sit down table service for patrons utilizin
g waiters and waitresses,
whose
Tenant
is
V
A
(2)
menu
of more than twenty-five percent (25%) of
(a) Southern so-called “comfort type” food
items such as those types of items as shown on
the menu attached hereto as Exhibit G and
(b) local
food items that would be found in Southern Louisia
na restaurants such as, by way ofexample
only
K Paul‘s, and (3) that has an average per customer check (including food and
beverage) of between
Fifieen Dollars ($15.00) and Thirty Dollars
($30.00) ("Average Customer Check"). The Average
consists
Customer Check
shall be increased at the commencement
of the second (2nd) Lease Year, and at
commencement of each Lease Year thereafier, to an amount equal
to the Average Customer
Check for the preceding Lease Year multiplied
by a fraction, the numerator of which shall be the
Consumer Price Index as ofthe most recent date prior to such
adjustment and the denominator of
which shall be the Consumer Price Index as of twelve
months
prior thereto. The Consumer
(12)
Price Index shall be deemed to mean the U.S.
Bureau of Labor Statistics, [Revised] Consumer
the
Price Index, “United States City Average
for Urban Wage Eamers and Clerical
Workers,
Selected Data (1982-84 = 100) all items
(seasonally adjusted)."
If such index shall be
discontinued, then any successor consumer price
index of the United States Bureau of Labor
Statistics, or an alternate means of cost price
measurement reasonably acceptable to Landlord and
Tenant, shall be used. ln addition, provided Tenant is
operating under the Permitted Use as
originally set forth in this Lease, Tenant shall have
the first opportunity to participate in
any
events (including the fannets market) within the Commo
n Area of the Village which event will
include the sale of fried chicken and/or southern
style barbecue chicken. Tenant shall have ten
(IO) business days afier notice fiom Landlord to accept or decline the
opportunity to participate
in such event. [f Tenant fails to respond or decline
s such opportunity, Landlord shall have the
right to engage another vendor to provide such food items.
B. Notwithstanding anything to
applicable to
(i)
any tenants
which permit such tenants
any hotel
D
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in
me
contrary in the foregoing sentence, this provision shall
not be
in the Village, their
to operate a
sucwssors and assigns,
Competing Restaurant; or
(ii)
who currently have leases
any restaurant located within
the Village.
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Exhibit F Page
1 1Page 66 W
EXHIBIT F
EXCLUSIVE AND PROHIBITED USES
The Container Store
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided (i)
not in Default of this Lease beyond any applicable cure period and (ii) Tenant is
operating a business in the Leased Premises in accordance with the Permitted Use set forth in
Section 1.01.0 of the Lease, Landlord hereby agrees not to lease. or permit the use of,
any
Tenant
is
portion of the
Commercial Portion as a "Competing Business". A "Competing Business" is
in excess of seven thousand five hundred (7,500) square feet
which primarily sells containers, storage and organizational products.
hereby defined as any business
Notwithstanding anything to the contrary in the foregoing sentence, this provision shall not
be
applicable to any tenants in the Commercial Portion, their successors and assigns, who
currently
have leases which permit such tenants to operate a "Competing Business".
The Counter
Exclusive Use: Notwithstanding anything to the contrary contained in this Lease, provided
(i)
is not in Default of this Lease beyond
any applicable cure period and (ii) Tenant is
Tenant
operating a business in the Leased Premises in accordance with the Permitted
Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business". A "Competing
Business"
is hereby defined as a business that primarily
operates as full service “fast casual”
which primarily sells prepared hamburgers, veggie burgers and/or turkey burgers. For
purposes of this Lease, “primarily” shall mean twenty percent (20%) or more of the
restaurant’s
restaurant
gross annual receipts are derived from the sale of prepared hamburgers,
veggie burgers and/or
Examples of so-called full-service “fast casual” restaurants include,
way of
turkey burgers.
by
example only but not by way of limitation, “Fat Burger", “Johnny Rockets", “Sonic Burger”,
“Red Robin”, “Islands Fine Burgers & Drinks”, “Fuddruckers”, “Polker’s
Gourmet Burgers”,
“Bamey’s Gourmet Burgers", “Taylor's Automatic Refresher”, and/or
“In
& Out Burger".
Notwithstanding anything to the contrary in the foregoing, this provision shall not be applicable
to (i) any tenants in the Village, their successors and assigns, who
currently have leases in effect
which permit such
any
tenants, their successors or assigns, to operate a
"Competing Business"; or (ii)
providing waiter or waitress service, offering a wide variety
items, including hamburgers, veggie burgers and/or turkey burgers, such
as, by
full-service. sit-down restaurant,
of other menu
way of example only but not by way of limitation, tenants operating under the trade names “TGI
Fridays", “Chili‘s“. “Buffalo Wild Wings”, “Mortons”, “The Palm", “Ruby
Tuesdays”, and/or
“Applebee‘s”.
Thea Mediterranean Cuisine
Exclusive Use:
(i)
Tenant
Tenant
is
A. Notwithstanding anything to the contrary contained in this Lease, provided
not in default of this Lease beyond any applicable notice and cure period, and
(ii)
open and continuously operating a Mediterranean restaurant in the Leased Premises in
is
accordance with the Permitted Use
set
fonh
in
Section 1.01 .0, above, Landlord hereby agrees not
to lease. or permit the use of.
any portion of the Commercial Portion as a Competing Restaurant,
provided, however. that Landlord shall not be obligated to violate any antitrust, unlawful
competition or unlawful restraint of trade law. In the event of Transfer under Article 15 of
the
Lease, the provisions set forth in this Addendum VI shall be null and void and of
no fithher force
or effect. A Competing Restaurant is hereby defined as any full service restaurant
(1) which
provides
sit
down
table service for patrons utilizing waiters
and waitresses,
(2)
whose menu
consists 0f more than twenty-five percent
(25%) of Mediterranean food items, and (3) that has an
average per customer check (including food and beverage) of between Fifieen Dollars
($15.00)
and Thirty Dollars ($30.00) ("Average Customer Check"). Tenant acknowledges and agrees that
“Spanish" cuisine shall not be considered the same as “Mediterranean" cuisine for
purposes of
the Lease. The Average Customer Check shall be increased at the commencement of the second
(2nd) Lease Year, and at the commencement of each Lease Year thereafter, to an amount equal
to the Average Customer Check for the preceding Lease Year multiplied
by a fraction, the
numerator of which shall be the Consumer Price Index as of the most recent date prior to such
adjustment and the denominator of which shall be the Consumer Price Index as of twelve
(12)
months prior thereto. The Consumer Price Index shall be deemed t0 mean the U.S. Bureau of
D- M:\LEGAL1\PROPERTY\SANTANA\T$I
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Exhibit F Page 12Page 67 W
EXHIBIT F
EXCLUSIVE AND PROHIBITED USES
Labor
[Revised] Consumer Price Index, "United States City Average for Urban Wage
Earners and Clerical Workers, Selected Data (1982-84 = 100) all items (seasonally adjusted)." If
such index shall be discontinued, then any successor consumer price index of the United States
Statistics,
Bureau of Labor
Statistics,
means of
or an alternate
cost price
measurement reasonably
acceptable to Landlord and Tenant, shall be used.
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision shall
not be
applicable to (i) any tenants in the Village, their successors and assigns, who currently have
leases
which permit such tenants to operate a Competing Restaurant; or
within any hotel
(ii)
any restaurant located
in the Village.
Tourneau
Exclusive Use: Provided that Tenant is not in Default under the Lease afier notice
and the
expiration of any applicable grace or cure period and the Wexler family or
its descendents
directly or indirectly controls the Tenant operating the Leased Premises,
Landlord agrees to
obtain Tenant’s written approval, which may unreasonably be withheld, prior to
entering into
any
agreement for the leasing of space within the Village to a tenant operating a retail store
that
includes the sale 0f watches (“Competing Business”), provided that
(i) the Competing Business’
annual retail gross sales fiom the sale of watches frequently equals or exceeds five
percent
(5%)
of the Competing Business’ total annual retail gross sales at its other locations and/or the sales
0f
watches is projected to equal or exceed five percent ofthe Competing Business’ total
retail gross
sales fiom its location in the Village, and/or (ii) the Competing Business’
display of watches
exceeds three percent (3%) of the Competing Business’ total selling floor area
at its location in
the Village.
all
The
limitation in clauses
leases going into effect afier
(i)
and
(ii)
May 20,
ofthe previous sentence
shall
be incorporated
in
regardless of the approval of any particular tenant
Tenant.
Notwithstanding anything to the contrary set forth herein, a “Competing Business”
by
shall not include; (a) the following tenants in the Village, their
successors and assigns, who
currently have leases in effect as of
May 20, 2002: A.G. Ferrari, Amber India, Anne Fontaine,
Taylor Lofl, Anthropologie, Babette, BCBG Max Azria, Bellarmine Barber
Shop, Ben
Jerry’s, Blowfish Sushi to Die For, Borders, Bottega Veneta,
Burberry, Carta, Century
Ann
&
Theatres,
Chili's, Chico's,
Cocola, Cole Haan, Cou, Crate
Thomas Menswear,
&
Barrel, CreAsian, Diesel, Donald Pliner, Eli
Escada, Fenagamo, Footworks, Gucci, Italian Homestyle, Jacadi, Japanese
Weekend, Landau, Lather, Let} Bank, Maggiano's, MaiDo, McRoskey Airflex
Mattress
Company, Mulholland San Francisco, New Balance, Oilily, Optical Illusions,
Pasta
Pomodoro, Peets Cofi'ee & Tea, St. John Knits, Strait's Café, Sur La Table,
Taryn Rose, Theory,
Wolford, Yankee Pier and X-tra;
provided, however, unless required under the provisions of the lease, Landlord
agrees not to
waive, modify, or amend the use clauses in the leases of any of the foregoing tenants
to permit an
assignment or subletting to a Competing Business;
(b) any department store (such as
Bloomingdale’s or Nordstrom’s);
(c) the following retailers: Van Cleef
Arpels, Harry
Winston, Tiffany, Ralph Lauren, Chopard, Banks
Biddle, and Graff; or (d) any retailer who
sells watches under its proprietary name, i._e., under its
trade name or the trade name of a
subsidiary or parent company of tenant (such as Gucci selling Gucci or
Boucheron watches,
Tod's,
Tommy
Bahama, Trend, Vilebrequin, Village
Cafe’,
&
&
Movado
selling
Movado brand
watches), or (e) an exclusive licensee for a brand of watches.
Tenant with prior written notice regarding any Competing Business
requiring Tenant’s approval. Failure of Tenant to respond to Landlord’s
notice within ten (10)
days of receipt of said notice by Tenant shall be deemed approval of the Competing Business
by
Tenant. Landlord warrants and represents that it will in good faith enforce the
provisions of this
Landlord
shall provide
paragraph
3.
Tranguilig — The Aesthetic
& Implant Dental Groug
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
not in Default of this Lease beyond any applicable cure period and
(ii) Tenant is
operating a business in the Leased Premises in accordance with the Permitted
Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
"Competing
Business" is hereby defined as any business which operates as a dental
practice, as defined by
applicable California regulations.
Tenant
is
A
D
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Exhibit
F Page
13Page 68 EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Notwithstanding anything to the contrary
applicable to
leases
(i)
any tenants
in the
foregoing sentence, this provision shall not be
the Village, their successors and assigns,
in
which permit such tenants
to operate a
"Competing Business"; or
(ii)
who
currently have
any Major Tenant.
Union Bank of California
Exclusive Use: Provided Tenant is not in Default of this Agreement beyond
any applicable cure
period and Tenant is operating a the ATMs within the ATMs Sites, Landlord
agrees that during
the Initial Term and any renewal period thereafier and notwithstanding
anything contained in this
Agreement t0 the contrary, no other ATMs may be located within the common area of
the
Village or on the perimeter walls of the buildings in the Village without Tenant's
express
written
consent, which
this
it
may
withhold
Agreement, the Bank Space
in its sole discretion...
shall not
be
in violation
Notwithstanding anything contained
of Tenant's
in
right to exclusively maintain
ATMs in the Common area ifthe Bank Space installs an ATM on its perimeter wall.
Vintage Wine Bar
Exclusive Use: A. Notwithstanding anything to the contrary contained in
this Lease, provided
Tenant is not in default 0f this Lease beyond any applicable notice and cure
period, and (ii)
Tenant is open and continuously operating a business in the Leased Premises
in accordance with
Article IV of the Lease, Landlord hereby agrees not to lease, or
permit the use of, any portion of
the Village as a "Competing Business".
A "Competing Business" is hereby defined as any
business whose primary business is the sale of wine
by the glass.
(i)
B. Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
(i) any tenants in the Village, their successors and
assigns, who currently have
leases in effect; (ii) any Major Tenant at
any time; (iii) any hotel which may be part 0f the
Village; or (iv) any restaurants. ln addition, Tenant
acknowledges and agrees that the exclusive
applicable to
right granted herein to
Tenant
shall not
apply or include any special events held
in the
Area ofthe Village.
Common
Vintage Wine Merchants
Exclusive Use: A. Notwithstanding anything to the contrary
contained in this Lease, provided
(i) Tenant is not in default of this Lmse beyond
applicable
any
notice and cure period, and (ii)
Tenant is open and continuously operating a business in the
Leased Premises in accordance with
Article IV of the Lease, Landlord hereby agrees not
to lease, or permit the use of, any portion of
the Village as a "Competing Business". A "Competing
Business" is hereby defined as any
business which (a)
is
located
Avenues, and (b) primarily
on Olsen Avenue, or on Santana
sells at retail bottled
Row
between Olin and Olsen
wine.
B. Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
applicable to (i) any tenants in the Village, their successors and
assigns, who currently have
leases in effect; (ii) any Major Tenant at any time; or
(iii) any hotel which may be part of the
Village.
Wahoo’s Fish Taco
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided (i)
not in Default of this Lease beyond any applicable cure
period and (ii) Tenant is
operating a business in the Leased Premises in accordance with
the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
"Competing
Tenant
is
A
Business"
is
hereby defined as any business which operates as a quick, casual restaurant
serving
primarily Mexican cuisine, including but not limited to burritos, tacos and
wraps (such as Baja
Fresh, Chipotle Mexican Grill or Sharkeys).
Landlord agrees not to (a) lease to a Competing Business in the permanent
kiosks
located in the Village (spaces 105, 106 and 107), or
(b) permit a temporary kiosk selling tacos,
burritos or wraps to be located within the Common Area surrounding
Building l3 as outlined and
designated as the “No Competing Kiosk Area” on Exhibit A-l.
[n addition,
D szLEGAlepROPERmmANMTm (Execution Copy).docx
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I
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Exhibit F Page l4Page 69 m
SANTANA Row
EXCLUSIVE AND PROHIBITED USES
Notwithstanding anything to the contrary
in the foregoing sentence, this provision shall
not be
any tenants in the Village, their successors and assigns, who curren
tly have
leases which permit such tenants to operate a "Competing
Business"; or (ii) any Major Tenant; or
(iii) to any vender participating in the farmer’s
market located within
applicable to
(i)
the Village.
Yankee Pier
Exclusive Use: A. Notwithstanding anything to the
contrary contained in this Lease, provided
(i) Tenant is not in default of this Lease beyon
d any applicable notice and cure period, and
(ii)
subject to and except for the periods oftime during
which Tenant is permitted to close the Leased
Premises, Tenant is open and continuously operat
ing a restaurant primarily serving American
style seafood in the Leased Premises in accord
ance with Tenant’s Permitted Use, Landlord
hereby agrees not to lease, or permit the use of,
any portion of the Commercial Portion as a
Competing Business, provided, however, that Landlo
rd shall not be obligated to violate any
antitrust, unlawful competition or unlawf
ul restraint of trade law. A Competing Busine
ss is
hereby defined as any full service sit-down restau
rant specializing in and primarily servin
g
American-style seafood at a total dinner price
point, exclusive of beverages, of Twenty-Fiv
e
Dollars ($25.00) to Thirty-Five Dollars
($35.00) per person (“Price Point of Dinner”). The Price
Point of Dinner shall be increased at the
commencement of the second Lease Year, and at the
commencement of each Lease Year thereafier, to an amoun
t equal to the Price Point of Dinner
for the prior Lease Year multiplied
by a fraction, the numerator of which shall be the Consumer
Price Index as of the most recent date
prior to such adjustment and the denominato
r of which
shall be the Consumer Price Index
as of twelve (12) months prior thereto.
The Consumer Price
Index shall be deemed t0 mean the U.S. Burea
u of Labor Statistics, [Revised] Consumer Price
Index. "United States City Average for Urban
Wage Eamers and Clerical Workers, Selected Data
(1982-84 = 100) all items (seasonally adjust
ed)" 1f such index shall be discontinued
, then any
successor consumer price index of the
United States Bureau of Labor Statistics, or
an alternate
means of cost price measurement. shall be used.
B. Notwithstanding anything to the
contrary in the foregoing sentence, this provision
shall not be
applicable to (i) any tenants in the
Commercial Portion, their successors and assign
s, who
currently have leases which permit such
tenants to operate a Competing Busine
ss; or (ii) any
hotel located in the Village.
Yard House Restaurant
Exclusive Use: Notwithstanding anythi
ng to the contrary contained
Tenant is not in Default, and (ii) Tenant
in this Lease, provided
(i)
operating a business in the Leased
Premises in
accordance with the Permitted Use. Landlord
agrees not to lease any portion of the Villag
e as a
“Competing Business." A Competing Busine
ss is hereby defined as any full-service
restaurant
(i.e., with waiter/waitress servic
e) which offers more than twenty—five
(25) difi‘erent kinds of
drafi beer; provided, however that any Irish pub
or similar pub-style restaurant concept that
offers
more than twenty-five (25) different kinds 0f drafi
beer shall not be deemed a Competing
Business. For purposes of this Addendum.
draft beer is defined as beer served
through the use 0f
beer taps, which deliver beer directly from kegs.
Notwithstanding anything to the contrary in the
foregoing, this provision shall not be applic
able t0 any tenants in the Village, their succes
sors and
is
assigns,
who
currently have leases in effect
assigns. to operate a
D
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which permit such
Competing Business.
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tenants, their successors or
1/le
Exhibit
F Page
15Page 70 ADDENDUM l
ASBESTOS CONTAINING MATERIALS
Due to the recent construction of the Leased Premises, Landlord is not aware of any
suspected or presumed asbestos containing materials (“Suspect ACM”) within the
Leased
Premises.
Notwithstanding any other provision in this Lease, in the event that Suspect
is
identified in the Leased Premises, Tenant will not abrade, remove or
engage in any activity that
will disturb the Suspect
without Landlord’s prior written consent. which may be withheld
in Landlord’s sole discretion.
ACM
ACM
In addition to
any other rights of access to the Leased Premises granted to Landlord in
Tenant grants Landlord access to the Leased Premises to inspect, sample
and abate
any Suspect ACM. Landlord hereby agrees to provide Tenant reasonable advance
notice of such
activities, which will occur, to the extent possible. during
non-business hours.
this Lease,
result
Landlord shall indemnify and hold Tenant harmless from
any liability that may
of the presence of ACM introduced into the Leased Premises
by Landlord.
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lPage 71 ADDENDUM fl
CONSTRUCTION ALLOWANCE
Landlord
incurred
shall pay to Tenant a construction allowance for actual construction costs
Tenant
for work performed and materials fiJmished in connection with Tenant‘s
by
Work, as described in Exhibit B attached to the Lease, in an amount not to exceed Forty-Six
Thousand Six Hundred Dollars ($46,600.00). calculated based upon $25.00 per square foot of
Floor Area of the Leased Premises (hereinafier “Construction Allowance”). The
Construction
Allowance represents Landlord’s contribution towards Tenant’s Work and shall be paid
to
Tenant
in
accordance with the following terms and conditions.
Payment of Construction Allowance.
l.
Provided
for
payment
is
Tenant
(i)
is
not in Default at the time the payment
made within one hundred
is
due and
eighty (180) days of the Rent
(ii)
such request
Commencement
Date,
Landlord will pay the Construction Allowance to Tenant in Two
(2) payments (the first such
payment being a "Partial Payment"), with the Partial Payment not to exceed Tenant's
actual
construction costs up to the
sum of Twenty-Three Thousand Three Hundred
Dollars and
No
Cents Dollars ($23,300.00). and the final payment ("Final Payment")
not to exceed Tenant's
actual construction costs up to the sum of Twenty-Three Thousand
Three Hundred Dollars and
No Cents Dollars ($23.300.00). The Construction Allowance will be paid in accordance with
the
following schedule
.
Partial Payments.
2.
Landlord will make the Partial Payment within thirty
(30) days afier the following list of
“Partial Payment Required Documentation”) has
been submitted to
Landlord for Landlord’s approval.
documents (hereinafier
Notice of Partial Completion. Notice
(i)
fiom
Tenant and
certifying in writing to Landlord, that
(a) with respect to the first Partial
(50%) of the Tenant’s Work is completed in accordance with the
its
general contractor
Payment Fifiy percent
plans and specifications
approved by Landlord.
General Contractor Application and Certificate For Payment.
together with AIA Document G703 (a copy of both of which
are attached
as Schedule I) duly completed, executed and notarized
on behalf ofthe Tenant's architect (with
respect only to the AIA Document G702) and general
contractor.
(ii)
AIA Document G
Lien Waivers. Interim release of lien (on the form attached hereto
executed by the Tenant's general contractor and a copy of interim
releases of lien
(iii)
as Schedule
II)
executed by
all
applicable suppliers, materialmen, contractors and subcontractors
performing
materials of at least Five Thousand and 00/100 Dollars
($5,000.00) in
value on forms supplied by the general contractor for work
completed thus far.
work or providing
ofall contractors,
m
Affidavit of Payment. The affidavit (which
be on the form
executed by the Tenant’s general contractor listing
(a) the names
subcontractors, suppliers and materialmen who provided or supplied,
labor,
(iv)
attached hereto as Schedule
III)
goods and materials to the Leased Premises, and
subcontractors, suppliers and materialmen have been paid
services.
(b) that all listed contractors,
in fiJll for amounts owed to them, as
indicated in such general contractor’s immediately preceding
Application for Payment, for labor,
services. goods and materials provided or supplied to the Leased
Premises.
Final Payment. Landlord will pay the Final Payment within
thirty (30) days afier
Tenant has opened the Leased Premises for business to the public, Tenant's
Work is completed in
accordance with the plans and specifications approved
by Landlord, and Landlord has received
and approved the following list 0f documents (hereinafier, “Final
Payment Required
Documentation”).
3.
Notice of Completion.
(i)
Notice from Tenant and its general
contractor certifying in writing to Landlord, and Landlord approves such
certification, that one
hundred percent (100%) of Tenant’s Work is complete in accordance with the
plans and
specifications approved by Landlord.
M:\LEGAL \PROPER'I'YBANTANAWCSIA (Execution Copy)_docx
I
Addendum
II
Page
lPage 72 ADDENDUM fl
CONSTRUCTION ALLOWANCE
(ii)
General Contractor Final Application and Certification For
The general contractor's final application for payment on AIA Document Gtogether with AIA Document G703 (a copy of both of which are attached
as Schedule I) duly
Payment.
completed, executed and notarized on behalf of the Tenant's architect (with respect
only to the
and general contractor.
AIA Document G702)
M
(iii)
Lien Waivers. Final unconditional release of liens (which
be
on the form attached hereto as Schedule III, 0r a similar form
compliant with Legal
Requirements) executed by the general contractor, and a copy of final unconditional
releases of
liens executed on behalf of all applicable suppliers,
materialmen, contractors and sub-contractors
performing work or providing materials of at least Five Thousand and
00/100 Dollars
($5,000.00) in value on forms supplied by the general contractor.
m
(iv)
Affidavit of Payment. The affidavit (which
be on the form
attached hereto as Schedule IV) executed by the general contractor
(a) listing the names of all
contractors, subcontractors, suppliers and materialmen who
provided or supplied,
labor, services,
goods and materials to the Leased Premises, and
(b) confirming that all listed contractors,
subcontractors, suppliers and materialmen have been paid in full for
the labor, services, goods
and materials provided or supplied to the Leased Premises as ofthe
date ofthe affidavit.
Certificate of Occupancy.
(v)
of Occupancy
for the
A permanent or temporary Certificate
Leased Premises.
Form W-9 Request for Taxpayer Identification Number and
A Form W-9 with Tenant’s taxpayer identification number completed.
(vi)
Certification.
As-Built Plans.
(vii)
in
.pdf 0r .dwg
(CADD)
One
(
l)
copy on
CD of Tenant’s “as-built” plans
format.
Landlord may withhold the Construction Allowance until
has been satisfactorily submitted to and approved
by Landlord.
4.
all
Required Documentation
Third Persons.
Under no circumstances shall this Lease, or any Addendum
thereto, be construed
confer upon any third person or entity any right or cause
of action against the
to
Landlord or Tenant,
including, but not limited to,
5.
all
contractors, subcontractors. suppliers, laborers or materialmen.
Use of Construction Allowance.
Tenant shall use the Construction Allowance only for the construction
and installation of
Leasehold Improvements in and to the Leased Premises. It is
specifically understood and agreed
that (i) the Construction Allowance may not and
shall not be used for the purchase and/or
installation of Tenant‘s Property, and (ii) Landlord
shall not be required to pay the Construction
Allowance unless the Construction Allowance was used for the
construction and installation of
Leasehold Improvements. as evidenced by the Required Documentation.
6.
Landlord’s Failure to Pay Construction Allowance.
In the event Landlord
fails to
ten (10) days after receipt of notice
pay any portion of the Construction Allowance within
from Tenant that the same is past due, and provided
Tenant has submitted the Required Documentation as set forth herein, Tenant
may deduct
any such amounts including interest at the rate of ten percent (10%) from its
monthly
Minimum Rent next due and payable.
M.\LEGAL \PROPERTYBANTANMTmIa
l
(Execution Copy).docx
Addendum
II
Page 2Page 73 made
for
paymmt,
as
is
in
PROJECT:
VIA ARCHITECT:
HM
“M
$0.
$0.
ADDITIONS
connection with the Contract.
attached.
shown below,
AJA Document G703,
Line 6)
Owner
~
-
AIA
DOCUMENT G
APPLICATION No:
pERIOD T0:
mg ONE op
payment shown
of:
day
County
of
herein is
Date:
to:
now due.
(he
allfigures an
mas
(his
CONTRACTOR
ARCHITECT
OWNER
Distribution
E
E
E
E
E
certifies that to the best of the Contractor's knowiedgc,
PROJECT No s:
CONTRACT DATE:
The undersigned Contractor
this
that current
infom1ation and belief the Work
covered
this
Application
for
by
Payment
has
been
completed in accordance with the Contract Documents, that all amounts have been paid
by
the Contactor for Work for whidl previous Certificates for Payment were
issued and
me
payments received from the Owner, and
CONTRACTOR:
By:
Stale of:
to before
ARCHITECT'S CERTIFICATE FOR PAYMENT
My Commission expires:
Subscribed and sworn
Notary Public:
0.
of
Owner
[hat to lhc bcsl
to thc
accordance wxlh the Contract Documents, based on nn-suc obscrvauons and the data
ln
Initial
Documents. and the Contractor
amount applied
the Contract
comprising thc applicalmn, lhc Architect certifies
wnh
AMOUNT CERNFIEI)
accordance
has progressed as indicated,
in
Work
is
payment ol‘lhc
Work
Ardu'lect's knowledge, Infonnalion and belieflhc
entitled lo
the quality of lhc
is
AMOUNT CERTIFIED ........... $
(/lllach
changed Io conform with (he amount cerhfled.)
certified dlfl'erxfrom the
is
are without
payable only to the
Date:
AMOUNTCERTIFIED
(‘tmllnuulion Sheet that are
explanation {famounr
The
herein. Issuance.
.
newvonx AVE N w., WASHINGTON. Dc 20005-
Authontlcity from the Licensee.
paymmt and acceptance ofpayment
Owner or Contractor under this Contract.
not negotiable.
and anthe
ARC H ITECT:
Application
By:
is
named
This Certificate
Contractor
prejudice to any rights of the
Documents
me AMERICAN INSTITUTE or ARCHITECTS.
Certification o f
$0.
DEDUC’HONS
0.
0.
0.
HH
APPLICATION AND CER'HFICATION FOR PAYMENT
T0 OWNER;
FROM CONRACTOR:
CONmAcr FOR:
is
ORIGINAL CONTRACT SUM
Net change by Change Orders
l
CONTRACT SUM TO DATE (Linc i 2)
TOTAL COMPLETED & STORED TDATE
(Column G on G703)
+ 5b or
D + E on G703)
of Stored Material
%ofComplctcd Work
°/o
(Column
_
_
RETAINAGE:
a.
b.
(Column F on G703)
|
Column ofG703)
Total Retainagc (Lines Sa
Total in
TOTAL EARNED LESS RETAINAGE
(Line 4 Less Line 5 Total)
LESS PREVIOUS CERHFICATES FOR
less
PAYMENT (Line 6 from prior Certificate)
CURRENT PAYMENT DUE
BALANCE TO FINISH. INCLUDING RETAINAGF.
(Line
CHANGE ORDER SUMMARY
previous months by
Month
I
“WM”
CONTRACTOR'S APPLICATION FOR PAYMENT
Application
.
.
.
Continuation Sheet,
bWN—
.
‘
.
.
.
.
in
Total changes approved
Total approved this
TOTALS
NET CHANGES by Change Order
-
AIA DOCUMENT G702 APPLICATION AND CERTIFICATION FOR PAYMENT EDITION AIA Users may obtain validation of this document by requesting a completed NA Document
M:\LEGAL l\PROPERTY\SANTANA\TcsIa (Execuion Copy).docx
Addendum
ll
Page 3Page 74 CONTINUATION SHEET
is
attached.
AIA
PESENTLY STORED
(NOT IN D OR E)
MATERIALS
DOCUMENT G
containing
WORK COMPLETED
may apply.
AIA Documem G702, APPLICATION AND CERTIFICATION FOR PAYMENT,
SCHEDULED
VALUE
$0.
APPLICATION NO:
APPLICATION DATE:
PERIOD TO:
ARCHITECT'S PROJECT NO:
TOTAL
COMPLEIED TO
DATE (D+E+F)
-
$0.
Certificatlon of
Documents Authenticlty
Pig;
0F
BALANCE
TO FINBH
mmmm
FROM PREVIOUS
APPLICATION (D+E)
variable retainage for line items
are stated to the nearest dollar.
Contractor's signed cenification
amounts
on Contracts where
WORK
RAW
DESCRJPFION OF
l
In tabulations below,
Use Column
I
cx
Users may obtain validation of thls document
by requesting of the llcense a completed AIA Document D
M:\LEGAL l\PROPERTY\SANTANA\Tesla (Execm'on Copy)‘do
VARIABLE
RATE)
RETANAGE
(1F
Addendum
ll
Page 4Page 75 ADDENDUM fl
CONSTRUCTION ALLOWANCE
SCHEDULE II
California
CONDlTIONAL WAIVER AND
RELEASE UPON PROGRESS PAYMENT
OWNER:
GENERAL CONTRACTOR:
PROJECT NAME:
STATE 0F CALIFORNIA
COUNTY 0F
Upon
receipt
S
by the undersigned of a check
from
in
payable to
properly endorsed and has been paid
by the bank upon which
any mechanic’s lien. stop notice, or bond
it
is
drawn,
this
release
(Owner) located
right
the
at
covers
sum of
undersigned
has
on
the
job
of
(Project) to the following
extent.
This release
the
and when the check has been
document shall become effective to
a progress payment for labor, service
s, equipment or materials furnish
ed
(firm undersigned contracted with) through
to
(date of
and does not cover any retentions retaine
d before or afier the release date;
extras furnished before
the release date for which
payment has not been received; extras or items
furnished afier the release date. Rights
based upon work performed or items
fumished under a mitten change order
which has been fully executed
by the
parties prior lo the release date are
covered by this release unless specifically
reserved by the claimant in this release
.
this release) only
This
release of any mechanic's lien, stop
notice. or bond right shall not otherw
ise affect the contract rights,
including rights between parties
to the contract based upon a resciss
ion. abandonment, or breach of the
contract, or
the
right 0f the undersigned to recove
r
compensation for fumished labor, service
s, equipment, or material covered
by
equipment, or material was not compensated
by the progress payment.
document relies on it, said party should verify
evidence of payment to the undersigned.
this release if that furnished
labor, services,
Before any recipient of this
Swom to and subscribed
before
FIRM OR COM PANY:
me this ___ day of
20_.
By:
Print
Name:
Notary Public
(NOTARY SEAL)
My
Commission
Its:
Expires:
M:\LEGALI\PROPERTY\SANTANA\Tala (Execution
Copy).docx
Addendum H Page
5Page 76 ADDENDUM fl
CONSTRUCTION ALLOWANCE
SCHEDULE III
WAIVER AND RELEASE UPON FINAL PAYMENT
California
UNCONDITIONAL WAIVER AND
RELEASE UPON FINAL PAYMENT
OWNER:
GENERAL CONTRACTOR:
PROJECT NAME:
STATE OF CALIFORNIA
COUNTY 0F
The undersigned has been paid
in full for all labor, services,
undersigned
(firm
(Owner) located at
and does hereby waive and release
any right Io a mechanic's
bond on lhcjob. except for disputed claims for
extra
material
equipment or material furnished to
with)
on
me job
of
contracted
(Project)
stop notice, or any right agains‘ a labor
and
in the amount of S
lien,
work
NOTICE:
THIS DOCUMENT WAIVES RIGHTS UNCONDIT
lONALLY AND STATES THAT YOU
HAVE BEEN PAID FOR GIVING UP THOSE RIGHT
S. THIS DOCUMENT IS ENFORCEABLE
AGAINST YOU IF YOU SIGN IT. EVEN IF YOU HAVE
NOT BEEN PAID. IF YOU HAVE NOT BEEN
PAID. USE A CON DITIONAL RELEASE FORM
.
Witness Whereof, the undersigned
signatory, acting for and on behalf of the
firm or company
of its laborers, subcontractors, and supplie
rs, has placed his hand and seal this
day of
20__.
In
listed
below and
‘
all
FIRM OR COMPANY:
By:
Sworn
lo
before
me this
and subscribed
Print
Name:
day of
.
20_.
lls:
Notary Public
(NOTARY SEAL)
My Commission Expires:
M:\LEGAL1\PROPERTY\SANTANA\Tala (Execution
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Addendum
II
Page 6Page 77 ADDENDUM fl
CONSTRUCTION ALLOWANCE
SCHEDULE
IV
GENERAL CONTRACTOR AND SUB-CONTRACTOR AFFIDAVIT
State of
County of
(1)
(2)
being first duly sworn.
of
under oath deposes and says that he/sh
e is
(Contractor) which has been contracted
for
(3)
construction of
(4) (the Project) with
following store location (5) (store number
).
(tenant
name)
at the
That, to complete the Project. only the
following companies. businesses.
and individuals have been
contracted by Contractor. and have furnis
hed, or are furnishing and preparing
materials for, and have
done or are providing labor on the Project. As
indicated below, any and all contractors,
subcontractors.
laborers. suppliers and materialmen
that have provided labor, material or
services to the undersigned for
use or incorporation into the construction of
the improvements to the Project have
been paid and satisfied
in full; there are no outstanding
claims of any character arising out of. or
related to, undersigned's activities
on. or improvements to, the Project.
This statement
payments
presentiy
is
made
for the Project.
due
all
to
and
(tenant
name)
to obtain the release of contra
ct
a full. true and complete statement of amoun
ts paid to date. and amounts
companies. businesses and individuals involv
ed in this
is
project.
SUBCONTRACTORS I
SUPPLIERS
TRADE
AMOUNT PAID TO
DATE
CONTRACT BALANCE
Company Name
Address
Citylsme/Zip
Code
Telephone Number
Subscribed and sworn to before
me this
___day of
20__
Signed By:
Tiue:
Notaty Public
M:\LEGAL]\PROPERTYEANTANMTfila (Execution
COPYMOCX
Addendum
II
Page
lPage 78 5.12m m
TERMINATION RI_G_H_T_
Provided Tenant
is not in material monetary Default
(i.e., a Default, the value of
equal to or greater than one (1) month’s Minimum
Rent) beyond any applicable
notice and cure period (nor has any event occurred and
remained uncured that, with Notice and
an opportunity to cure, could become a Default), has
been open for business and operating
pursuant to the terms 0f the Lease throughout the Term
and subject to compliance with the terms
of this Addendum III, Tenant shall have the one-time right
to terminate the Lease upon prior
written Notice to Landlord (“Termination Notice”
), which Termination Notice shall be
(a) given,
if at all, not later than the final
day of the fourth (4m) Lease Year, and (b) accompanied
by a
payment (the “Termination Payment”) equal to the then-unamort
ized portion of the Construction
Allowance (amortized on a straight-line basis across
the initial ten (10) year Lease Term).
which
is
If
Tenant timely exercises
termination right hereunder, Tenant agrees it shall
continue
and conditions of the Lease through and including
the
last day of the fifih (5m) Lease Year, whereu
pon Tenant shall quit and vacate the Leased Premises
(and the PCA) in the condition required
by the Lease.
its
to operate in accordance with the terms
M:\LEGALI \PROPERTY\SANTANA\TmIa
(Execution Copy).docx
Addendum IH Page
1Page 79 ADDENDUM XI
TENANT’S PARKING/CHARGING AREA
l.
The location of Tenant's parking and charging area (hereinafier
the "PCA") shall
be deemed to be that area designated as “4 Dedicated
Parking Stalls” on the site plan attached
hereto as Exhibit A of this Lease. Tenant hereby
agrees that it shall not utilize any other area for
the storage or charging of its vehicles other than
that area approved by Landlord in accordance
with Tenant’s Plans. In addition, in no event shall Tenant
use the Leased Premises, the PCA or
any portion of the Village for any purpose that would violate this Lease
including, specifically,
the provisions 0f Exhibit F.
The
2.
parties agree that the use of the PCA shall
be subject to the existing rights of
other tenants of the Commercial Portion, but
that the PCA shall
be clearly marked for Tenant’s
use using signage mutually agreed
by Landlord and Tenant and subject to the other provisions of
this Addendum IV. Subject to the rights
of existing tenants, Tenant shall also have the
right, at
its sole cost and expense, to
install gates on the PCA, which gates
shall be (a) subject to
(i) the
prior written consent of Landlord, not to
be unreasonably withheld, delayed or conditioned,
and
(ii) the prior written consent of applicable
governmental authorities; and
compli
ant
with
(b)
Legal Requirements.
3.
Tenant's use of the
the Lease, and shall be subject to
If Tenant's use
remove
all
of
of the
its
PCA
PCA
all
shall be in accordance with the terms
and conditions of
codes and regulations of any and all governing
authori
ties.
violation of any code requirements or regulat
ions, Tenant shall
vehicles and any other improvements locate 'm
d
the PCA,
is in
at its
ten (10) days prior written notice from
Landlord and Tenant‘s right to use the
terminated.
expense, upon
PCA
be
shall
Tenant specifically agrees that the design, manufa
cture and method of installation
improvements located within the PCA, shall
be approved in advance in writing
by
4.
for all
Landlord.
3.
Tenant agrees to maintain the PCA in an attract
ive and clean condition in
accordance with the general character of the Comme
rcial Portion and otherwise in accordance
with the maintenance responsibilities of Tenant
set forth for the Leased Premises in
Article X of
the Lease. Tenant shall bear sole respons
ibility for maintaining and cleaning the PCA
and shall
keep the same free of trash and debris caused
by its customers seated in this area. In the event
Tenant fails to maintain the PCA, then Landlo
rd shall have the right to do so on Tenant's
behalf
and at Tenant's expense, as set forth below. payabl
e as Additional Rent.
6.
maintain the
Notwithstanding anything
PCA, Landlord
shall notify
in the
Lease to the contrary,
in the
Tenant that Tenant has breached
its
event Tenant
fails to
obligation to
PCA and, ifTenant fails to cure its breach within the following twenty
—four (24)
hours, Landlord shall have the right to maintain
the PCA and charge Tenant as Additional
Rent
Two Hundred Fifly Dollars ($250.00) per day for each day therea
fler, until Tenant provides
Landlord with adequate assurance that Tenant will
adhere to its maintenance obligations
specified herein. In the event the Two Hundred
and Fifiy Dollar ($250.00) charge is insufficient
to reimburse Landlord for the actual, reason
able cost of maintaining the PCA, Tenant shall
be
obligated to reimburse Landlord the actual cost
for
maintain the
such maintenance.
7.
Should Tenant receive three (3) notices for failure
to maintain the PCA as herein
month period, Landlord shall have the right to revoke Tenant's
use of
required in any twelve (12)
the PCA.
8.
Tenant
shall not place in the public trash receptacles
in the
Commercial Portion any garbage or refilse which originates
Common Areas of the
fiom the PCA.
Tenant shall indemnify and hold harmless Landlord
fiom any and all liability that
use ofthc PCA, and Tenant’s indemnity and insura
nce
obligations under the Lease shall respond thereto
.
9.
may arise as a result of Tenant's
10.
understood and agreed by and between the parties
hereto that efi'ective upon
all of the terms and conditions ofthe
Lease shall apply to the
PCA as though the PCA was originally a portion ofthe Leased Premises as
defined in the Lease.
Accordingly, for all purposes under the Lease except as
to the payment ofRent, the PCA shall
be
deemed to be a pan ofthe Leased Premises and, unless
specifically stated
full
It is
execution of this Agreement,
otherwise,
M:\LEGALI\PROPERTY\SANTANA\T5I
all
(Execution Copy)‘docx
Addendum VI Page
1Page 80 W.
El
TENANT’S PARKING/CHARGING AREA
references in the Lease to the Leased Premises
shall be
shall not so state).
deemed
to include the
same
PCA (even
if
the
ll. Landlord shall have access to the
as needed in order to maintain properly and
repair the Village and other areas therein. Such
right of access shall be exercised
by Landlord so
as to keep to a minimum any interference with Tenant
's business.
PCA
Notwithstanding the forgoing, during the term of
the Lease, Landlord shall have the
change the location of the PCA from its presen
t location to another location in the
Village, which location shall be reason
ably agreed by the parties; provided, howev
er, any
changes to the location of Tenant’s parking areas
by Landlord shall be limited to covered parking
12.
right to
structures located within the Village.
l3. Landlord reserves the right, from
time to time, to temporarily restrict access
to the
parking areas, including the PCA, to perfo
rm maintenance thereof; provided, howev
er, that
Landlord agrees that such restriction shall be on
a
temporary
l4. Tenant’s rights with respect
to the
assigned or otherwise transferred.
PCA
basis.
are personal to Tenant and
may
not be
15. From time to time, upon reques
t therefor by Landlord, Tenant shall
remove and
remediate to Landlord’s satisfaction, the spilla
ge of any oil or other fluid or substance,
whether in
the PCA or the Leased Premises. In all
events, this obligation shall be performed
on or prior to
the Termination Date and the obligation
shall survive the expiration or earlie
r termination of the
Lease.
M:\LEGAL1\PROPERTY\SANTANA\T$Ia
(Execution Copy).docx
Addendum VI Page 2Page 81 MM
X
LEASE CONTINGENCY
Landlord and Tenant hereby agree that this Lease
shall be contingent upon the issuance of
necessary governmental permits and licenses
in order for Tenant to commence
with the
performance of Tenant‘s Work, the issuance 0f
which
all
will also
confirm
the permissibility of the
Permitted Use (the “Building Permits”). Tenan
t shall “diligently pursue” the issuance of the
Building Permits. Tenant shall be deemed to
be diligently pursuing the issuance of the Build
ing
Permits if Tenant is in compliance with the follow
ing: (i) Tenant submits the Plans to Landl
ord
within the time frames set forth in Exhibit
B, “Tenant Improvements” Section, “Plan Submittal
Procedure” Subsection. First (ls‘) Parag
raph, (ii) Tenam submits t0 the proper gover
nmental
authorities all required documents, plans
and specifications, detailed in full and in compl
iance
with all governmental requirements, for the issua
nce of the Building Permits, as required
and
by
within the required time periods set forth
in Exhibit B, “Tenant Improvements”
Section, “Plan
Submittal Procedure” Subsection, Final
Paragraph, simultaneously providing copie
s of all such
submissions to Lanflord; (iii) Tenant
pays in a timely manner all fees required
by the
governmental authorities in order for the Build
ing Permits to be issued, subject, howev
er, to
an amount not to exceed Five Thousand
and 00/100 Dollars
($5,000.00) for any additional costs or expenses
incurred by Tenant to obtain a variance
or any
other special governmental approval grant
ing Tenant permission to operate in the
Leased
Premises for the Permitted Use (as define
d in Section 1.01 .N of the Lease), which cost would
not
typically be incurred by Tenant in pursuit of
its Building Permits in the event
that such variance
or other special governmental approval were
not necessary, which reimbursement shall
be made
within thirty (30) days following a reque
st therefor (accompanied
by invoices marked “paid”);
(iv) Tenant cooperates with the government
al authorities by (a) submitting additional infor
mation
or documents, as may be required from
time to time, within ten (10) days following
request
therefor, and (b) responding to
any questions or comments from governmental author
ities within
ten (10) days following oral or writte
n notice to Tenant of said questions
or comments, as the
case may be; (v) Tenant, at its sole cost
and expense (subject to the reimbursement descr
ibed in
Subsection (iii) above), hires a permit
expediter if required by Landlord; and
(vi) Tenant keeps
Landlord advised of Tenant’s progress
in obtaining the issuance 0f
the Building Permits.
Landlord shall cooperate with Tenant, at no out-o
f-pocket expense to Landlord (but subjec
t to the
reimbursement described in Subsection
(iii) above), in securing the issuance
of the Building
Permits. Upon Landlord’s \wittcn
request, Tenant shall provide Landlord
with written notice of
(x) the actual filing date for the Building
Permits, together with a date stamped
copy of the first
page of Tenant’s application from applic
able governmental agencies showing
the actual filing
date for the Building Permits, and
(y) the actual date the Building Permits are issued, which
notice shall be accompanied
by a copy of the Building
reimbursement from Landlord
in
Permits.
Tenant has diligently pursued the issuance
of the Building Permits, but the Building
Permits are not available for issuance to
Tenant within ninety (90) days from the date
Tenant
initially applies for the Building
Permits, Tenant shall have the right to
terminate this Lease by
giving Landlord thirty (30) days‘ Notice
at any time following the expira
tion of the foregoing
ninety (90) day period. Notwithstanding the
foregoing, Landlord shall have the right,
but not the
obligation, to nullify Tenant's notice
of termination by providing Tenant with
written notice
(“Landlord’s Notification”) of its
intent to pursue the issuance of the
Building Permits on
Tenant’s behalf, and at Landlord’s expen
se. Tenant shall cooperate with Landlord
in securing
the issuance of the Building Permits.
lf Landlord is unable to obtain the
Building Permits on or
before sixty (60) days following the date 0f Landl
ord‘s Notification, then either party shall
have
the right to terminate the Lease
by giving Notice to the other on or before thirty
(30)
days
following the expiration of such
sixty (60) day period. Finally, in the
event that the Build
If
ing
Permits are not available for issuance to
Tenant within one hundred eighty (180)
days from the
date Tenant initially applies for the Build
ing Permits, but Tenant has not elected
to terminate this
Lease in accordance with this paragraph,
Landlord shall have the right to terminate
the Lease
upon thirty (30) days’ Notice to Tenant of its intent
thereof.
In the event of a termination occur
ring pursuant to this Addendum
V, Landlord shall
reimburse Tenant, within thirty (30) days follo
wing a request therefor (accompanied
by invoices
marked “paid”), for Tenant’s actual, out-of-pocket costs
incurred in the production of
(a) for the
production of plans, specifications, worki
ng drawings and any other construction docum
ents for
the Leased Premises, and (b) for any permi
t expediter himd by Tenant pursuant to
Subsection (v)
above, in an aggregate amount not to excee
d Forty-Five Thousand and 00/Dollars
($45,000.00).
M.\LEGALI\PROPERTY\SANTANA\T5|
(Execution Copy).docx
Addendum
V
Page
1Page 82 STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
LEASE MODFFICATION AND EXTENSION AGREEMENT
THIS LEASE MODIFICATION
made thisépndday 0f Ooh) D4,,»
COUNTRY VILLAGE,
LLC,
AND EXTENSION AGREEMENT (“Agreement”)
2012, by and between FRIT SAN JOSE TOWN AND
.
a California limited liability
STREET R.ETAJL, INC,
Delaware corporation, trading as Tesla (“Tenant").
WHEREAS,
November
3,
managing member,
TESLA MOTORS, INC, a
company, by
a Maryland corporation (“Landlord”), and
its
Landlord and Tenant entered into that certain Lease Agreement dated
(hereinafter referred to as the “Lease”), pursuant to
which Tenant leased
fiom
commonly
Landlord approximately one thousand eight hundred sixty-four (1,864) square feet
known
as Store #3035 ("Original Leased Premises”), located at Stevens Creek Boulevard and
Winchestcr Boulevard, San Jose, California 95128, in a shopping dcvelopment known as
Santana Row Shopping Center (“Village”); and
WHEREAS,
the current
Term ofthe Lease
expires 0n January
l,
2021; and
WHEREAS, the parties hereto desire to modify the Lease by relocating the Original
Leased Premises t0 thc “cross-hatched” space indicated on the site plan attached hereto as
Exhibit A-l, comprising approximately five thousand six hundred five (5,605) square feel,
known as Store #3010 and located within the Shopping Center (“Relocated Premises”), aIl as
more specifically
detailed below.
WHEREAS,
amend and supplement
the parties hereto desire t
thc Lease,
all
as
hereinafier provided.
NOW THEREFORE,
in
consideration ofthe foregoing and the
sum ofTen
Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency ofwhieh are
hereby acknowledged, and the mutualpromises contained hcrcin, thc parties hereto, intending
to
be legally bound, agree as follows:
1)
this
Recitals Each 0f the foregoing recitals and representations form a material part of
Agreement and are incorporated herein by
this reference.
2) Dclivcjv of Relocated Premises. Landlord hcrcby agrees t0 deliver the Relocatcd
Premises during the period fi'om January l, 2013 and February 15, 2013 (‘Delivery Period“), and
Tenant agrees to provide Landlord with at least thirty (30‘) days’ prior written notice of the date
Tenant will accept delivery ot‘the Relocated Premises during the Delivery Period (“Relocation
Date”).
3)
Relocatcd Premises.
From and aficr
Relocation Date, the Leased Premises shall be
to mean and rcfcr t0 both the Relocated Premises and the Original Leased Premises.
Commencing on the earlier offi) the date upon which Tenant initially opens for business in the
deemed
one hundred twenty (120) days fi-om and aficr the Relocation Date
(“Relocation Rent Commencement Date”), instead of Store #3035 as designated in Section
1.01.A. and Exhibit A ofthc Lease, the Leased Premises shall be deemed to mean and refer to
only the Relocated Premises and Exhibit A attached hereto Shall be substituted for the present
Exhibit A attached to the Lease with thc same force and effect as if thc Relocated Premises had
Rclocated Premises 0r
(ii)
been leased originally to Tenant and Exhibit A attached hereto had originally bccn attached tthe Lease. Commencing on the Relocation Rent Commencement Date, the Floor Area of the
Leased Premises shall be deemed to be five thousand six hundred five (5,605) square feet and
Tenant’s Proportionate Share shall bc adjusted accordingly. Thc foregoing abatement 0f Rent
represents Landlord’s fijll and final contribution toward
business from the Relocatcd Premises.
4)
Term.
Effective
on
work required by Tenant
the Relocation Rent
to provide for a ten (10) year
Commencement
NILLEGALILPROPERTHSANYHM4 ‘LMALLRELOCATEUCIIO
Date, the
term commencing 0n
shall be extended
Corrunencement Date and terminating one hundred twenty (120)
Lease
Fmal I(LleDacr
full
t
open
for
Term of the
the Relocation Rent
calendar months thereafierPage 83 (“Extended Term”), subject
as
t0 all
0fthc terms, covenants and conditions contained
in tho
Lease
modified hereby.
Lease Year. Notwithstanding anything
5)
t0 the contrary contained in the Lease, as
0fthe Relocation Rent Commencement Datc, each Lcasc Year shall bc defined as follows: (i) if
the Relocation Rent Commencement Date occurs 0n the first day 0f a calendar month, the period
Rem Commencement Date and terminating on the last day ofthe
month thereafier, and each succeeding period of twelve (12) full calendar
months during the Term; or (ii) if the Relocation Rent Commencement Date does not occur 0n
the first day 0f a calendar month, then the period beginning 0n the first day 0f the next
succeeding calendar month and terminating 0n the last day 0f the twelfth full calendar month
thereafter, and each succeeding period ofnvelve (12) full calendar months during the Term.
beginning on the Relocation
twelfth full calendar
throughout the Extended
Lease
Commencement Dale and continuing
Minimum Rent payable by Tenant under the
Rent. Effective 0n thc Relocation Rent
6)
Term 0f the Lease,
the
be as follows:
shall
M
Annually
Monthly
l
$420,375.
$35,031.
Period
Lease Year
Lease Year
$432,986.
$36,082.
Lcasc Year Lease Year
$445,975.
$37,164.
$459,355
$38,279.
Lease Year Lcasc Ycar
$473,135.
$39,427.
$487,329.
$40,610.
Lease Year
$501,949.
$41,828.
Lease Year
$517,008.
$43,084.
Lease Year Lease Year
$
8.
$44,376.
$548,493.
$45,707.
A11 payments 0f Rent shall continue t0 be paid in the intervals and
manner required under
the Lease.
Tenant Improvements. Tenant agrees t0 provide all construction work and
improvements [0 the Relocated Premises in accordance with its obligations set forth in Exhibit
attached hereto and made a part hereof. Tenant accepts thc Relocated Premises in its “as is”
7)
B
it being expressly understood that Landlord has made n0 representations 0r wananties
with respect t0 such premises and that Tenant has inspected same and found such premises t0 be
satisfactory. Tenant shall opcn thc Relocatcd Premises for business to the public, fuily fixturcd
condition;
and merchandised, 0n the Relocation Rent
Work
forth
set
Exhibit
in
in
the original
Addendum
9)
B
accordance with
Allowance
II
Date.
1n consideration 0f Tenant's performance of Tenant’s
Construction Allowance.
8)
Commencement
attached hereto,
Addendum H
Landlord shall pay Tenant a Construction
attached hereto, which shall replace in
its
entirety
ofthe Lease.
Surrender 0f Original Leased Premises. Landlord and Tenant agree that Tenant shall
remove all 0f its inventory and movable trade fixtures from
close for business to the public and
Leased Premises by the close ofbusiness 0n the fifih (5th) day afier the Relocation
Rent Commencement Date and leave the premises broom clean and both the exterior and interior
in good condition and repair, except for ordinary wear and tear. Landlord shall be entitled to
possession ofthe Original Leased Premises by the close ofbusiness 0n the fifth (5m) day afier the
the Original
Date. In the event Tenant fails t0 remove its fixtures, as
five (5) days after Tenant‘s receipt ofwrittcn notice from Landlord, said fixtures
shall forthwith be dccmcd abandoned and become the property ofLandlord. Except as set forth
heroin, no permanently attached fixtures or portions of the Original Leased Premises including
but not limited lo the walls, HVAC system, storefront and related items shall be removed under
any circumstances by Tenant. 1f Tenant fails IO vacate the Original Leased Premises and
Relocation Rent
Commencement
aforesaid within
surrender possession thcrcofto Landlord on the fifth (5m) day afler the Relocation Rent
Commencement Date, such failure shall be deemed a Default 0fthc Lease (without the necessity
ofnotice or
demand
under the Lease or
fiom Landlord)
at
law or in
subjecting Tenant t
a1]
ofLandlord‘s rights and remedies
equity. Additionally, Landlord shall also be entitled t0 recover
all
damages, direct 0r indirect, including lost business opportunity regarding any prospective
ofTenant‘s failure to
tenant(s) for the Original Leased Premises, suffered by Landlord as a result
N'LLEGALI1PROPERTYL§AWANA1MALRELOCATEle/a
-
Final {073712.Dna
-2-Page 84 vacate thc Original Leased Premises
011 the
date that
is
the
[h
fifih
(
)
day aficr thc Relocation
Rent Commencement Date.
10) Utilifl Charges. Tenant agrees to place [he electric, water, gas and/or
utility
meters for the Relocated Promises
in
Tenant’s
within five (5) days ofthe Relocation Date but
Tenant’s Work 111 the Relocated Premises.
ll)
in all
name with
any other
thc appropriate utility companies
events prior to the
commencement ofany of
HVAC Maintenance. Notwithstanding anything in the Lease t0 the contrary, Tenant
HVAC system serving the Relocatcd Premises in the same manner as requ ired
shall maintain the
under Section 10.02 ofthc Lcasc for thc Original.
12) Recanturc
ofReIocatcd Premises. Tenant acknowledges
Agreement, thc Relocatcd Prcmjscs
is
that as
ofthc date ofthis
subject to occupancy rights by an existing tenant (the
“Existing Tenant”). Landlord and Tenant hereby agree that this Agreement shall bc contingent
upon Landlord recapturing possession ofthe Relocated Premises fi‘om
the event Landlord does not obtain possession
ofthe date offull execution ofthis Agreement,
no further force and
effect,
the Existing Tenant. In
of the Relocated Premises within
this
Agreement
shall
become
months
six (6)
null and void and
0f
and neither party shall have any further rights or obligations
hereunder.
l3)
N
Kiosk Area. The “No Kiosk AIea” referred to
depicted on the Exhibit
A
attached to the Lease shall be and
Section 6.02 ofthe Lease and
hereby replaced with the “No
in
is
Kiosk Area" depicted 0n thc Exhibit A attached hereto, which has replaced the Exhibit
attached to the Lease pursuant to Paragraph 3 above.
A
Auto Loading. Thc “Car Drop OffArea” and “Tenant’s Path for Car Delivery"
referred to in Section 6.02 of the Lease and depicted on Exhibit A attached to the Lease shall bc
and hereby are replaced with the “Car Drop Off Area” and “Tenant’s Path for Car Delivery”
14)
A attached
depicted on the Exhibit A attached hereto, which has replaced the Exhibit
Lease pursuant to Paragraph 3 above.
15) Termination Right.
From and afier
thc date hereof,
any corresponding termination right thereunder)
Addendum IH
16)
attached hereto
Time
Addendum
hereby dclctcd
hcrcby inserted into the Lease by
Defined Terms. Terms
when such terms
l7)
is
is
that are
defined
in thc
Lcasc
the Lease (and
Ill t
in its entirety
t0 the
and the new
this reference.
shall
have the same meanings
are used in this Agreement.
is
ofthe Essence. Time is ofthe essence with respect
Agreement and the Lease.
t
each and every
obligation arising under this
[8)
Binding EffeCL All ofthe covenants and agreements herein contained
shall
be
binding upon and shall inure to the benefit of the parties hereto and their r03pectivc heirs,
representatives, successors and assigns.
Confirmation OfTerms. All 0fthe terms, covenants and conditions ofthe Lease,
arc herein specifically modified and amended, shall remain in fill] force and effect, and
19)
cxccpt as
arc hereby adopted and reaffirmed
by the
parties hcrcto.
20) Counterparts. This Agreement
which
shall
be deemed an original, and
all
may
be executed in one 0r more counterparts, each of
of which
shall constitute
onc and the same instrument.
Moreover, signatures received by facsimile 0r portable document format
effective for the purposes ofthis Agreement.
N.
LLEGAL] LPROPERTYLSANTANA ILMA "RELOCATEch-sla
-
Final J0-3-12.Dacx
shall be
deemedPage 85 1N WITNESS
WHEREOF,
the parties hereto have set their hands
and
seals the
d3y and
date set forth above.
WITNESS;
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY
VILLAGE, LLC,
a California limited liability
company, by its managing member,
INC, a Maryland corporation
Kb,—
QQMLSM
'fi
Name:
Deborah A. Colson
Vice President-Legal Operations
Title:
TENANT:
TESLA
M0103:
By:
Name:
Title:
‘
.
‘
twp
'
‘
e
M.EGALILPROPERTYLS'ANTANA ILMAUIEIDCA TEkTes/a
INC, a Delaware corporation
r
Title:
[Corporate Seal]
N,
STREET RETAIL,
-
final 10-J—I2,Daa
r
‘
‘
v
UKVNIMUPage 86 IN WITNESS
WHEREOF,
the parties hereto have set their hands and seals the day and
date set forth above.
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY
WIINESS:
VILLAGE, LLC,
a California limited liability
company, by its managing member,
LNG, a Maryland corporation
STREET RETAIL,
By:
Name:
Deborah A. Colson
Title:
Vice President-Legal Operations
TENANT:
TESLA MOTORS,
ATTEST:
By:
INWe
C
.
Name:
Ngme:§
5W?“
Title=
Tltle:
N1 UMQSIUS M
i
a
[Corporate Seal]
N.
VLEGALILPROPERTWSA‘NTANAELMmRFIDC/j TERTeA/a
-
anul 10-3-I2.DOCJ
1‘
corporation
”WW EKPWW
1Page 87 EXHIBIT A
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Exhibit A-lPage 88 ML: E
TESLA MOTORS ; SPACE NO‘
ASIS
LANDLORD IMPROVEMENTS
lo deliver the Relocated Premises 10 Tenant in an “As Is” condition.
aware of the condition of the Relocated Premises and agrees t0 accept the
Landlord agrees
Tenant
is fully
Relocaled Premises
made n
in
an “As Is” condition;
it
being expressly understood that Landlord has
representations or warranties with respect t0 such premises and that Tenant has
inspected the
same and has found such premises
t
be satisfactory.
TENANT IMPROVEIVIENTS
Tenant
shall
completely remodel, renovate and refurbish the Relocated Premises and the
minimum, install ncw storefront, storefront signage, and ceiling,
storefront, including, at a
lighting, trade fixtures,
room
(if
HVAC
floor and wall coverings,
necessary), and
make
all
changes
to thc
system
(if
necessary), and toilet
Leased Premises necessary
t0 place
same
m
applicable governmental codes t0 enable Tenant t0 properly use the Leased
Premises for the Permitted Usc (hcrcinaficr collectively referred t0 as “Tenant‘s Work").
compliance with
all
Plan Submittal Procedure
work
performed by Tenant hereunder shall bc in accordance with detailed plans
and specifications, t0 be prepared by Tenant's architect in reproducible form, including Tenant's
material sample board (hereiuafier collectively referred t0 as the “Plans”), all ofwhich shall bc
submitted t0 Landlord within ten (1 0) business days ofthe date ofthis Agreement for Landlord‘s
A
t0 be
wn'tten approval (as to both t0 design and materials)
withhold
in
which such approval may be granted 0r
Landlord's sole and absolute discretion; provided, however, Landlord shall act
reasonably in approving Tenant's plans and specifications and material sample board for
the interior of the Relocated Premises to the extent such are substantially similar t0 and no
less in quality in terms of design, materials and standards 0f finish to the Original Leased
Premises). Landlord agrees Io use commercially reasonable efforts t0 promptly review and
either approve, conditionally approve, or disapprove the Plans within tcn (10) business days
afler
Landlord’s receipt thereof. IfLandlord advises Tenant that changes lo the Plans are required,
shall have ten (10) business days thereafier to revise (as required by Landlord) and
resubmit the Plans for Landlord’s approval. This process shall continue until Landlord has
Tenant
approved the Plans.
It is
expressly agreed that Tenant shall not
commence any such work
until
Landlord has
approved the Plans and any required building permits have been issued by the applicable local
governmental
authoritics‘
No
changes 0f materials 0r finishes are permitted afier Landlord’s final approval 0f the
Plans unless approved in writing by Landlord.
Within five (5) days ofthe dale upon which Tenant has received Landlord's approval 0f
a1] appropriate building permits in accordance with thc
tho Plans, Tenant shall apply for
requirements 0f the applicable jurisdiction Tenant shall promptly give a copy of the building
permits to Landlord.
Construction Requirements
Tenant
shall
commence
construction ofTenaut's
Work
in thc
Relocatcd Premises no
later
than five (S) days afier whichever ofthe following shall be the latest t0 occur;
receives Landlord's approval 0f the Plans; or
(a)
The date Tenant
(b)
The date of issuance ofall appropriate building
(c)
The Relocation Date.
Tenant
shall diligently
pursue
t
completion
permits; or
all of'l‘enant's
Work.
NriLEGAL:mopmmsmmm mmxflwmmmm Fm! mailman:
-
Exhlblt
B
page—ZPage 89 EXHIBIT B
TESLA MOTORS ; SPACE NO.
ASIS
Tenant's general contractor will meet with Landlord's representative prior t0 the initiation
ofany work on the space
to review Landlord's construction rules
and regulations and any other
requirements specific to the Shopping Center.
Tenant's general contractor wil} submit to Landlord a check for Five ThOusand Dollars
($5,000.00) as a construction deposit
made payable
to the Landlord.
This deposit will be
Work, provided I10 rules have been
corrected, and n0 damage has occurred t0 the
returned in full afier the contractor has completed Tenant‘s
violated, all Landlord's
punch
list
items are
Shopping Center.
Tenant must place the
companies within five
Tenant but in all events prior
utility
electric,
water and/or gas mctcrs
in
its
name with
the appropriate
days from the date Landlord delivers the Relocatcd Premiscs tIo the commencement of any 0f Tenant's Work in the Relocated
(5)
Premises.
A1]
work
manner, and
in
shall obtain all
[o
be performed by Tenant shall be performed
in a
good and workmanlike
accordance with Section 9.04. ofthe Lease, Tenant} at its sole cost and expense,
permits, licenses 0r approvals required for Tenant’s Work from thc appropriate
authoritics‘
Tenant expressly agrees to indemnify, defend and hold Landlord harmless fiom and
damage to person 01' property Occurring during
against any liability to any Person or estate for
the
work proposed hereunder.
At thc completion ofTenant’s Work, Tenant
Certificate ofOccupancy.
shall deliver to
as well as “as-built” drawings, in
CADD
Landlord a copy ofits
founat, for Tenant’s
Work.
SANTANA ROW
N: \LEGA L / 1PROPER D'LSAJNTANA ‘J. AM
{RELOCA TE iTcsla
Final i073» [2.
Exhibit
B
page—ZPage 90 ADDENDUM H
CONSTRUCTION ALLOWANCE
Landlord
shall
pay
to
Tenant a construction allowance for actual construction costs
work performed and materials furnished to construct and install
Leasehold Improvements in connection with Tenant's Work, as described in Exhibit B attached
lo thc Lease, in an amount not to exceed Three Hundred Sixty-Four Thousand Three Hundred
Twenty-Five Dollars ($364,325.00), calculated based upon $65.00 per square foot ofFloor Area
0fthc Leased Premises (hereinafier “Construction Allowance"). The Construction Allowance
incurred by Tenant for
rcprcscnts Landlord’s contribution towards Tenant’s
Work
and shall be paid
t
Tenant
in
accordance with the following terms and conditions.
Pament
1.
Provided
for
payment
is
(i)
of Construction Allowance.
Tenant
made
is
not
in
Default
at the
within one hundred eighty
(l
time the payment
is
80) days 0fthc Rent
due, and
(ii)
such request
Commencement
Date,
Landlord will pay the Construction Allowance t0 Tenant in two (2) payments (each a "Partial
Payment"), with the first payment not L0 exceed Tenant‘s actual construction costs up to the sum
OFOne Hundred Eighty-Two Thousand One Hundred Sixty-Two and 50/100 Dollars
($1 32,162.50), and the last
costs up to the
payment
Payment") not
("Final
to
exceed Tenant‘s actual construction
sum OfOne Hundred Eighty—Two Thousand One Hundred Sixly—Two and
Dollars ($182,162A50)‘ Landlord shall only bc obligated t0 pay t0 Tenant, up to thc
50/
maximum
amount 0fthe Construction Allowance, for actual construction costs incurred by Tenant to
construct and install Leasehold Improvements, and only to the extent such costs are evidenced by
thc Partial Payment Required Documentation and Final Payment Required Documentation. The
Construction Ailowance will be paid
in
accordance with thc following schedule.
Partial Payments.
2.
Landlord will pay each Partial Payment within thirty (30) days afier the following list of
documents (hereinafter “Partial Payment Required Documentation”) has been submitted to
Landlord
for Landlord’s approval.
Notice 0f Partial Completion. Notice
(i)
fiom Tenant 21nd
its
general
contractor ccflifying in writing to Landlord, that (a) with respect t0 thc first Panial Payment fifiy
Work is completed in accordance with thc plans and specifications
percent (50%) 0fthe Tenant’s
approved by Landlord and (b) with respect t0 thc second and subsequent Partial Payments one
hundred percent (100%) 0f the Tenant's Work is completed in accordance with the plans and
specifications appr0ved by Landlord.
General Contractor Application and Certificate For Payment.
AIA Document G702 together with AIA Document G703 (a sample ofboth ofwhich arc
attached as Schedule I) duly completed, executed and notarized on behalfofthe Tenant's
(ii)
architect (with respect only t0 the
(iii)
a5 Schedule
II
AIA Document G702)
and general contractor.
Lien Waivers. Interim release of lien (0n the form attached hereto
or a similar fonn compliant with Legal Requirements) executed by the Tenant’s
general contractor.
(iv)
Affidavit of Payment. The affidavit (which
M
be on the form
attached hereto as Schedule III) executed by the Tenant’s general contIactor listing (a) the names
0f all contractors, subcontractors, suppliers and materialmen who provided 0r supplied, labor,
goods and materials t0 the Leased Premises, and (b) that a1} listed contractors,
subcontractors, suppliers and materialmen have been paid in full for amounts owed t0 them, as
indicated in such general contractor’s immediately preceding Application for Payment, for labor,
services, goods and materials provided 0r supplied t0 the Leased Premises.
services,
(v)
Certification.
A
Taxpayer Identification Number and
Form W-9 with Tenant’s taxpayer identification number completed.
Form W-9 Request
for
Final Payment. Landlord will pay the Final Payment within thirty (30) days afier
Tenant has opened the Leased Premises for business t0 the public, Tenant's Work is completed in
accordance with the plans and specifications approved by Landlord, and Landlord has received
3.
and approved the following
list
0f documents
(hereinafter, “Final
Payment Required
Documentation”):
N \LEGALI\PROPERTYSANTANMLMAMLOCATEWcsla
.
Final
10-3-1200“
Addendum H Page
1Page 91 ADDEN DUM fl
CONSTRUCTION ALLOWANCE
Notice of Completion. Notice from Tenant and
(vi)
its
general
Landlord‘ and Landlord approves such certification, that one
hundred percent (100%) 0f Tenant’s Work is complete in accordance with the plans and
specifications approved by Landlord.
contractor certifying in writing l
General ContractorFinal Application and Certification For
(vii)
Payment. Tho general contractor's final application for payment on AIA Document Gtogether with AIA Document G703 (a sample ofboth ofwhich arc attached as Schedule I) duly
completed, executed and notarized 0n behalf 0f the Tenant's architect (with respect only t0 the
AIA Document G702) and general contractor.
(viii)
0n the form attached hereto
as
Lien Waivers. Final unconditional release 0f liens (which must bc
Schedule 1H or a similaI form compliant with Legal
Requirements) executed by the general contractor.
Affidavit 0f Payment. Tho affidavit (which
(ix)
m
attached hcrcto as Schedule IV) executed by the general contractor (a) listing the
contractors, subcontractors, suppliers and materialmen
goods and materials
t0 the
Leased Premises, and
(b)
who
be
0:1 the
form
names 0f all
provided or supplied, labor, services,
confirming
that all listed contractors,
subcontractors‘ suppliers and matcrialmcn have bccn paid in full for the labor, services, goods
and materials provided or supplied
(x)
OfOccupancy
for the
t0 Ihc
Leased Premises as of the date 0f the affidavit.
Certificate of Occupancy.
Leased Premises.
(xi)
Intentionally deleted.
(xii)
Intentionally deleted.
Landlord
may withhold
the Construction
A pennanent
Allowance
until all Partial
Documentation 0r Final Payment Required Documentation, as the case
satisfactorily submitted t0 and approved by Landlord.
4.
Landlord's Right
to
or temporary Certificate
may
Payment Required
bc, has
been
Retainage.
Intentionally deleted.
5.
Third Persons.
Under n0 circumstances
confer upon any third person or
any Addendum thereto, be construed to
any right or cause ofaction against the Landlord 0r
shall this Lease, 0r
entity
Tenant, including, but not limited
t0, all contractors,
subcontractors, suppliers, laborers 0r
materialmen.
6.
Use of Construction Allowance.
Tenant shall use the Construction Allowance only for the construction and installation of
Leasehold Improvements in and t0 the Leased Premises. It is specifically understood and agreed
that (i) the Construction Allowance may not and Shall not be used for the purchase and/or
installation 0f Tenant’s Property, and (ii) Landlord shall not be required t0 pay thc Construction
Allowance unless the Coustruction Allowance was used for the construction and installation 0f
Leasehold Improvements, as evidenced by the Required Documentation.
7.
Landlord’s Failure t0 Pay Construction Allowance.
pay any portion 0fthe Construction Allowance within thiny
Tenant that Ihc same is past due, and provided Tenant has
from
(30) days afier receipt of notice
submitted the Required Documentation as sct forth herein, Tenant may deduct any such amounts
including interest at the rate of ten percent ( 10%) from its monthly Minimum Rent next due and
In thc event
Landlord
fails to
payable
N:\LEGALI\PROPERTYEANTANALMARELOCATEWCSM
-
Final
lO-LIQDUUX
Addendum H Page
2Page 92 FOR:
made
for
payment
as
is
in
connecu 0n with the Contract.
attached
shown below,
ALA Document G703,
$1 19,
of Completed Work
E 0n G703)
100%
$1 19,
a
D+
(Column F 0n C3703)
of Stored Mnlerial
(Column
_%
_%
RETAJNAGE:
b
Total Retajnage (Lines 5a + 5b or
l0v3v|2 Docx
0.
ALA DOCLLMENT G
APPLI CATION N O:
pERJOD To;
PROJECT NOS:
CONTRACT DATE:
Work
for
.‘
..
Eccl‘s
IJ-lc
[hat
this
U131 all
now due
and
amo-unrshavc been paid by
is
[mad
Date:
currentpammt dwxm huein
of:
day 0F
County
on-site observalions and the data
Owner mat t0 Lhc bcst of lhc
Work has prong$ed as indicatni
Decumcnts, based on
belief the
application. lhc Archited ccrtifis tolhc
lmowlcdgm informauon and
..$
I/mt are
changed
fa
Dale
difigureson Jhu-
confinrm wirh the amount Nrnfitd.)
dlfinfiom {he amour]! agflied.
Initial
Wat is in accordance wid'l Lhc Contract Documents, and the Conlmclm
0ch AMOUNT CERTIFIED.
paym mt
........
certified
Confin nation Shed
mom
CONTRACTOR
ARCHITECT
OWNER
Dishibution IO‘
E
E
E
E
Cohnactofs know] :dgc,
V
mag ONE op
lhat to 1hc beg. of lhc
me
md
which prcvious Cdfificates'for Payment were
accordéncc With [he Contract Documents,
infmmation and bclicfth'c Work covcxcd by mis Application forPay‘menl has been
Th: undusigncd Conrado: cefljfics
in
Contractor For
complaed
lh e
,
paymcnls rcccivcdfrom the Owner,
’_
CONTRACL‘DR:
By;
State Of‘
'
Subscrilmd and sworn t0 before
My Commissifm ‘exfi'ues.
Notary Publib;
Alchi
cnlilled t
d1: (pmlily of Lhc
Is
AMOUNT CE RTIFIED
the
“flack explmarion ffmnoum
ARCHITECT,
Apphuzfion and 0n
By.
Page
(ORK AVE. N
II
1735 Nfl‘v’
VI'
.WASHNGTON. DC ZOmB-SBZ
This Certificate is not mgoflable. The AMOUNT CERTIFIED is payable only to the
Cmtmctor named herein. I$uance, payment and acceptance 0f payment are without
any rights ohhc Owner 01' Contractor under this Contract.
AMERCAN \NSTITUTEOFARCH‘TECTS.
prejudice to
THE
Addendum
Cenlflcatlon of Document's Autha ntlclty from the Licensee.
$0.
DEDUCTIONS
-
comprising
ARCHITECTS CERTIFICATE FOR PAYMENT
u
In accordaficc with [he ConLrac!
qul
$1 19‘
0.
0.
»
Column] of 6703)
$0.
$0.
EARNED LESS RETAINAGE
Total in
LESS PREVIOUS CERTIFICATES FOR
PAYMENT (Lin: 6 fiom prior Cemficate)
CURRENT PAYMENT DUE
BALANCE TO FINISH, INCLUDING RETAINAGE
(Line 4 Less Line 5 Total)
TOTAL.
S
CONTRACT SUM TO DATE (Line i 2)
TOTAL COMPLETED 8; STORED TO
DATE
(Column G on G703)
ORIGINAL CONTRACT SUM
99%ww
PROJ ECT:
APPLICATION AND CERTIFICATION FOR PAYMENT
TO OWNER:
CONTRACT
is
CONTRACTOR'S APPLICATION FOR PAYMENT
Applicafion
.
.
K
S
ADDITIONS
Net change by Change Orders
Confimlaticm Sheet,
bulb)!—
V
5.
6.
7.
8.
(Line 3 less Line 6)
CHAN GE ORDER SUMMARY
by Owner
Total changme approved
inJIeVious months
Month
Ordfir
Total approved this
TOTALS
NET CHANGES by Change
A
Am DOCUMENT 6702 APPLLCNION mocgmmcmouron PAYMENT 1992 Esmow Am @1 Users rnay obtain validation of thls document by requestlng a cnmpieted AIA Document N:\.LEGAL1\PROPERTY‘SANTANA‘iMAmELOCATERTcsIaPage 93 CO NTI N UATION SH EET
PAYMENT,
PRESENTLY STORED
M ATERIALS
F
AM DOCUMENT G
E
containing
I
TI-HS
WORK COMPLETED
D
may apply.
AIA Document G702, APPLICATION AND CERTIFICATION FOR.
[n
Contractor's signed certificatimjs attached
dollar.
c
SCHEDULED
FROM PRWIOUS
for line items
tabulations below, amounts are stated to the nearest
B
DESCRIPTION OF W'ORK
Use Columnl 0n Contracts where variable retainage
A
ITEM
NO
>
V
I
APPLICATION NO:
APPLICATION DATE:
G
100%
100%
100%
°/o
(G + C)
I
'
'f
‘
L
’
;
I
'
10-3-1mocx
PAGE CF
PAGES
_
FIN] SH'
‘
H
BALANCE
‘
.
TO
‘
PERIOD T O:
ARCHITECTS PROJECT NO:
TOTAL
COMPLETED TO
DATE [D+E+F)
D OR E)
FRALIE/DRYWALL
CONCRETE
PAINT & WALL COVER
ACOUSTICAL CEILING
GOODS & MATERIAL
GENERAL CONDITIONS
O&P
$1 19,
Final
$0.
100%
100%
TILE M/L
‘
1 l
GRAND TOTALS
-
Users may obtain validation of this document by requesting of the licensé a completed AIA Document D401 -Certification of Documents Authenticity
museALI@ROPERTHSANTANMLMNRELOCATBIesJaPage 94 ADDENDUM Ii
CONSTRUCTION ALLOWANCE
SCHEDULE IT
WAIVER AND RELEASE UPON FINAL PAYMENT
California
UNCONDITEONAL WAIVER AND
RELEASE UPON FINAL PAYMENT
OWNER:
FRIT SAN JOSE
TOWN AND COUNTRY VILLAGE, LLC
GENERAL CONTRACTOR:
PROJECT NAME:
STATE 0F CALIFORNIA
COUNTY OF
Thc undcrsigwd has bccn paid
in full for all labor, services,
cquipmcnt 0r material furnished
contraclcd
undemigncd
with)
(firm
W
i W (Owner) located ar
and docs hereby wmve and release any fight f0 a mechanic's lien, stop notice, 0r any
material bond on the job. except for disputed claims for extra work in the amount of S
0n
to
of
job
thc
(Project)
r
right against a labor
and
THIS DOCWIENF WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU
HAVE BEEN PAl'D FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE
AGAINST YOU IF YOU SIGN IT, EVEN TF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN
NOTICE:
PAID, USE
A CONDITIONAL RELEASE FORM.
and 0n behalf 0f the firm 0r company
and suppliers, has placed his hand and seal this
day 0f
In Witness Whereof, the undersigned signatory, acting for
listed
below and
.
all
of
its
laborers, subcontractors,
207,
FIRM OR COMPANY:
By:
Sworn
before
me
Print
and subscribed
Name:
day 0f
this
‘
207.
Its:
Notary Public
(NOTARY SEAL)
My Commission
Expires:
N:\LE(3ALI'\PROPERTY\SA.NTANA‘lMAARELOCATEVFBSIa
-
Fina
10-3-12Docx
Addendum
II
Page
5Page 95 ADDENDUM fl
CONSTRUCTION ALLO WANCE
SCHEDULE
Ill
GENERAL CONTRACTOR AND SUB-CONTRACTOR AFFIDAVIT
State of
County of
(1)
(2)
being
first
duly
sworn,
of
under oath deposes and says that he/she
(Contractor) which has been contracted
(3)
(4) (the Project) with
construction of
(tenant
name)
is
for
at the
following store location (5) (store number).
That. to complete the Project only the following companies. businesses. and individuals have been
contracted by Contractor. and have furnished, or are furnishing and preparing materials for, and have
on the Project. As indicated below, any and all contractors, subcontractors.
and materialmen that have provided labor, material 0r services t0 the undersigned for
use or incorporation into the construction of the improvements to the Project have been paid and satisfied
in full; there are n0 outstanding claims of any character arising out 0f, 0r related t0. undersigned's
activities on, or improvements to. the Project.
done
or are providing labor
laborers, Suppliers
This statement
payments
presently
is
made
(tenant
to
name)
and is a full, true and complete statement
companies, businesses and individuals involved in
for the Project,
due
all
OUNT
TRADE
SUBCONTRACTORS/
of
to obtain the release of contract
amounts paid
to date.
and amounts
this project.
PAID
TO
CO
BALANCE
DATE
SUPPLIERS
Company Name
Address
CitylState/ZIp
Code
Telephone Number
Subscribed and sworn to before
day
of
,
me
this
20__
Signed By:
Title:
Notary Public
N.\LEGAL1\pROPERTmmmNMLMMRELOCATmm-m
.
Final
10—34mm
Addendum
II
Page 6Page 96 ADDENDUM LLI
TENANT TERMINATION RIGHT
Provided Tenant
Ls
not
in
material monetary Default (16., a Default, thc value
ofwhich
is
equal t0 0r greater than one (l) month’s Minimum Rent) beyond any applicable notice and cure
period (nor has any event occuned and remained uncured that, with Notice and an opportunity to
open
and operating pursuant t0 the terms 0f
of this Addendum HI,
written
prior
terminate
the
Notice to Landlord
right
to
upon
Lease
Tenant shall have the one-time
(‘Termination Notice"), which Termination Notice shall be given ifat all, not later than the final
day 0f the fourth (4m) Lcasc Year following thc Relocation Rent Commencement Date.
cure, could
become a
Default), has been
the Lcasc throughout thc
Term and
for business
subject t0 compliance with the terms
Tenant timely exercises its termination right hereunder, Tenant agrees it shall continue
'm
accordance with the terms and conditions of the Lease through and including the
last day 0fthe fifih (5m) Lease Year following thc Relocation Rent Commencement Date (the
“Termination Date”), whereupon Tenant shall quit and vacate the Leased Premises (and the
PCA) in the condition required by the Lease. On 0r before the Termination Date Tenant shall
If
to operate
pay t0 Landlord a payment (the ”Termination Payment”) equal to Two Hundred Sixty Six
Thousand Two Hundred Thirty Seven and 50/100 Dollars ($266,237.50) which amount
computed by multiplying fifly percent (50%) times the Construction Allowance paid under thc
tcrrns of this Lease Modification and Extension Agreement plus Fifteen Dollars ($15.00) pcr
= $182,162.50; 5,square foot of Floor Area within the Leased Premises ($364,325 x 50%
i
$84,075.00; $182,162.50 + $84,075.00 = $266,237.50).
square feet x $15.00 per square foot
1's
N:\LEGAL!\PROPERI YSANTANNLMAUUELOCATEWEQA
-
Final
104-12 DOCK
Addendum
III
Page
lPage 97 COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made this 1" day ofluly, 2014 by and between FRJT San lose Town and
Country Village, LLC a California limited liability company (the ”Landlord’) and Tesla Motor's Inc. a
Delaware corporation (the ”Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant have entered into that certain
(as the
same had been amended the
Lease dated November 3,
“Lease') for a poru'on ofthat's
cemin
real property
situated in that certain mix-use development located in San lose. California known as Santana
and commonly known as Store #3010 and more particularly described in the Lease, and
Row
WH EREAS, Landlord and Tenant now wish to document their agreement as to the Term
Commencement
Date. Rent Commencement Date, Relocation Date, Relocafion Rent
Date and Termination Date ofthe Term of the Lease.
Commencement
AG REEMENT
NOW, THEREFORE, in consideration ofthe Leased Premises as described in the Lease and
the covenants set forth therein, Landlord and Tenant agree as follovm
[a]
IN
The Term Commencement date bfthe Term
is
(b)
The Rent Commencement date ofthis Lease
(c)
The Relocation date
is
April 16, 2011.
January 23, 2013.
[d]
The Relocation Rent Commencement date
(e)
The Termination Date ofthis Lease is April
WITNESS WHEREOF, the
is
January 29, 2011.
is
April 4, 2013.
30, 2023.
parties hereto have executed this
Agreement as of the day and year first
above written.
Landlord:
Tenant:
FRIT SAN iOSE TOWN AND COUNTRY, LLC
A California limited liability company, by its
Tesla Motors, inc. , a Delaware Corporation
Managing member, STREET RETAIL, INC, a
Maryland corporation
f
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Qumliégwflfl»Page 98 COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made
this 15‘
Country Viliage, LLC a Caiifornia limited
Delaware corporation [the "Tenant").
day Ofluly, 2014 by and between FRIT San Jose Town and
company (the "Landlord”) and Tesla Motor’s Inc, a
liability
WITNESSETH
WHEREAS,
[as the
Landlord and Tenant have entered into that certain Lease dated November
same had been amended the
situated in that certain mix-use development located in San 105e, California
and commonly known
as Store
3,
"Lease"] for a portion 0fthat's certain real property
#30 10 and more
known
as Santana
particularly described in the Lease,
Row
and
WHEREAS, Landlord and Tenant now wish t0 dOCxIment their agreement as to the Term
Commencement Date. Rent Commencement Date, Relocation Date, Relocation Rent Commencement
Date and Termination Date 0f the Term 0f the Lease.
AGREEMENT
NOW, THEREFORE,
in
consideration 0fthe Leased Premises as described in the Lease and
the covenants set forth therein, Landlord and Tenant agree as follows:
[a]
IN
The Term Commencement date ofthe Term
is
(b)
The Rent Commencement date ofthis Lease
(c)
The Relocation date
is
April 16,
1.
1.
January 23. 2013.
(d)
The Relocation Rent Commencement date
(e)
The Termination Date ofthis Lease
WITNESS WHEREOF,
is
January 29,
is
i
April 4, 2013.
April 30. 2023.
the parties hereto have executed this
Agreement
as 0fthe day
and year
first
above written.
Landlord:
FRIT SAN JOSE
A
Tenant:
TOWN AND COUNTRY,
California limited liability
LLC
company. by its
Managing member, STREET RETAIL,
Maryland corporation
By:
Its:
Tesia Motors,
Inc.
,
a
Delaware Corporation
INC. a
By:
Its:
b‘w
W
P
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C
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gb‘w‘l,‘
bfiA—Mlflgn’vfifiPage 99 EXHIBIT BPage 100 GOODKIN LAW GROUP
1800 Century Park East, 10m Floor
o
Los Angeles, Califomia
o Tel: (310)
552-
Apc
o Fax: (310)
943-
www.goodkinlaw.com
Daniel L. Goodkin, Esq.
d oodkin
oodkinlaw.com
File No.2 10132.
June
VIA OVERNIGHT DELIVERY
RES QUESTED
& CERTIFIED MAIL RETURN RECEIPT
Which Will Do Business
California As Tesla Motors, Inc.
Tesla, Inc.
Tesla,
Attn: Lease Administration
#
901 Page Avenue
Fremont,
15,
1110.,
in
3500 Deer Creek Rd.
Palo Alto, CA
CA
CT Corporation
System
818 West Seventh Street, Suite
Los Angeles,
CA The written Lease Agreement dated November
RE:
all
3, 2010 (collectively, With any and
addenda, amendments, assignments, and other modifications, “Lease”) by and
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC, a California
partnership, as landlord, (“Landlord”), and TESLA MOTORS, INC., a
between FRIT
limited
Delaware corporation, as tenant (“Tenant”), pursuant to Which Tenant leased from
Landlord the premises comprising approximately 5,605 square feet commonly
known by the street address 0f 333 Santana Row, Suite 1035, San Jose, CA 95128,
as more particularly described in the Lease (the “Premises”) in the mixed used
proj ect
known
as Santana
Row / Demand for Payment
Dear Tenant:
Please be advised that our office has been retained t0 represent Landlord with regard to
hereby made to the Lease (as amended, extended, or
otherwise modified). A11 capitalized terms not otherwise defined herein shall have the meaning
the above-referenced Lease. Reference
ascribed to
them
is
in the Lease.
GLGPage 101 Tesla, Inc.
June 15, Page
Following up 0n Landlord’s prior communications regarding
this matter, this letter shall
demand that Tenant immediately pay all amounts owed
sum 0f $83,573.80, Within five (5) davs 0f the date 0f this letter.
constitute Landlord’s formal written
under the Lease, in the
A.
total
Tenant’s Lease Obligations
Section 5.01.A 0f the Lease provides that “Tenant shall pay
prior notice 0r
amounts,
manner
demand and Without
and times
at the rates
offset,
“Minimum Rent plus
Rent
t0 Landlord, Without
deduction 0r counterclaim whatsoever, in the
set forth herein, prorated for
set forth in this Section 5.01 .A.”
all
Rent
is
defined
any
month, in the
0f the Lease as
partial calendar
in Section 1.02.
Additional Rent.”
Minimum Rent
i.
Section 5.02 of the Lease provides that “Tenant shall pay Landlord the
Minimum Rent
in
commencing 0n the Rent Commencement Date, and on
the first day of each and every calendar month thereafter throughout the Term.” At all relevant
times, the Minimum Rent owed by Tenant totaled $ 1 9,5 1 8.75 per month.
equal monthly installments, in advance,
Additional Rent
ii.
Additional Rent
is
defined
0f the Lease as “A11 sums payable by Tenant
Rent, Whether as reimbursement 0r otherwise,
in Section 1.02.H
Landlord under the Lease, other than Minimum
and regardless 0f Whether denominated as ‘Additional Rent.’”
t
Section 7.01.A. 0f the Lease provides that “Tenant shall pay, When due, all charges for
water, sewer, electricity, gas, telephone service and other utilities supplied to the Leased
Premises (‘Utility Charges’).” Further, Sections 7.01.D and 7.01 .E 0f the Lease require Tenant to
pay
for Tenant’s
Condenser Water Equipment Charge and Tenant’s Sprinkler Charge,
respectively.
B.
Default Provisions of the Lease
The Lease
at
Section 16.01 provides that a Default by Tenant occurs upon “Tenant’s
failure to pay, 0r make available as required by this Lease, any Rent (or any installment thereof)
within five (5) days after Tenant receives notice from Landlord that the same is past due and
payable, however, if Landlord gives notice twice Within any twelve (12) month period, then
pay any Rent Within five (5) days after same is
due and payable without the necessity 0f further notice.” Landlord is then entitled t0 all of the
thereafter Tenant shall be in Default if it fails t
remedies
set forth in Section 16.
forth in California Civil
Code
0f the Lease, including but not limited to the remedies
sections 195 1.2 and 195 1.4.
//
GLG
setPage 102 Tesla, Inc.
June 15,
Page
Further, Section 17.04 0f the Lease provides that:
“If Landlord or Tenant institutes any suit against the other in
connection With the enforcement 0f their respective rights under this
Lease, the Violation 0f any term 0fthis Lease, the declaration 0ftheir
rights hereunder, 0r the protection
under
this
0f Landlord’s 0r Tenant’s
interest
Lease, the non—prevailing party shall reimburse the
prevailing party within
five
days of demand for
(5)
its
reasonable
expenses incurred as a result thereof including court costs and
reasonable attorneys’ fees, even
to the rendering
Rent
C.
is
As you know,
if
0f any judgment.”
Not Abated 0r Excused
the
COVID—
uncertain time for everyone.
Tenant pays past due Rent prior
situation
is
as a Result 0f
COVID-
rapidly evolving, and this
is
a difficult and
We understand that Tenant and its employees may be experiencing
difficulties as a result 0f COVID-19,
and Landlord is sympathetic t0 Tenant’s challenges.
Landlord is prepared t0 and Willing t0 work With Tenant t0 ensure the continuation 0f business
the Center pursuant to the regulations promulgated by state, and local governments; however,
Landlord would also like to remind Tenant of its obligations 0f the Lease.
As
the obligations 0f the Lease are clear, Landlord
is
at
suggesting that Tenants at the
Center reach out t0 their respective insurance carriers and begin the process of initiating a claim
for
any
loss
0f business Tenant might suffer during the Pandemic. Specifically, Section 17.13 0f
the Lease provides:
“Except for the pavment of monetarv obligations, if Landlord 0r
Tenant is delayed in or prevented from performing any of its
obligations under this Lease by reason 0f acts of God, strike, labor
troubles, 0r any similar cause whatsoever beyond their control
(which shall not be deemed t0 include financial inabilitv), the
period 0f such delay 0r such prevention shall be deemed added tthe time herein provided for the performance of any such obligation
by Landlord 0r Tenant.” (Emphasis added).
T0 that end, we wish to inform you that in light 0f the above, Tenant’s obligations t0 pay
Rent continue. While local emergency orders issued by the State, County, and/or City in which
the Premises are located may 0r may not preclude Landlord from seeking t0 evict Tenant for
Tenant’s failure to pay Rent as a result 0f the COVID—19 Pandemic, here, Landlord does not seek
t0 evict Tenant at this time. Landlord encourages Tenant to pursue any and all available options
for financial support, including business interruption insurance and/or any governmental
programs that may be available t0 Tenant.
GLGPage 103 Tesla, Inc.
June 15,
Page
Tenant’s Default and Obligation t0 PaV Past
D.
Due Rent Within
Davs
Notwithstanding the above terms of the Lease, Tenant failed to pay Rent commencing as
of September 2019 through June 2020, in the total amount 0f $83,573.80.
In light 0f the foregoing, Landlord
currently
owed under the
demands
Lease, Which currently totals
following the date 0f this
Tenant immediately pay all amounts
$83,573.80. within five (5) davs
that
letter.
Should Tenant fail to d0 s0, Tenant will continue t0 be in default under the terms of the
Lease, and Landlord reserves all of its rights and remedies under the Lease, at law, and in equity,
including, but not limited to, (a) initiating an action for breach of the Lease, (b) applying for an
immediate writ 0f attachment and temporary protective order, and/or any other remedies
available to
it.
We hope, however,
such actions are not necessary and that Tenant Will take the
necessary steps t0 put themselves in full compliance With the Lease.
In the meantime, Landlord reserves
0r in equity,
all
all
0f its rights and remedies, under the Lease,
of which are hereby expressly reserved.
foregoing, please do not hesitate to contact
me
at (3 10)
If you
Daniel L. Goodkin, Esq.
GLG
law
have any questions regarding the
552-3322.
Sincerely,
DLGzAJL/sy
at
PDF Page 1
PlainSite Cover Page
PDF Page 2
E-FILED
7/6/2020 8:25 PM
Clerk 9f court
Superior Court of CA,
County 0f Santa Clara
Daniel L. Goodkin, Esq. (SBN 131347)
Emall. dgoodk1n@goodk1nlaw.com
Allison J. Law, Esq. (SBN 307891)
Email: alaw@goodkinlaw.com
20Cy368064
GOODKIN LAW GROUP, APC
ReVIewed By:
.
.
.
_
I
R. Tlen
1800 Century Park East, 10th Floor
Los Angeles, California 90067
Telephone: (310) 552-3322
Facsimile: (3 1 0) 943- 1 589
Attorneys for
FRIT
Plaintiff,
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC,
a California limited liability
company
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA — DOWNTOWN SUPERIOR COURT
10
11
12
13
FRIT
SAN JOSE TOWN AND COUNTRY
VILLAGE, LLC,
CASE No.
200V368064
a California limited liability
company,
COMPLAINT FOR BREACH 0F LEASE
Plaintiff,
14
[Unlimited Civil]
VS.
15
16
TESLA MOTORS, INC., a Delaware
corporation; and DOES 1 through 100,
17
inclusive,
Defendants.
18
19
20
Plaintiff FRIT
SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC, a
California limited
21
liability
company
(“Plaintiff’ or “‘Landlord”)
hereby complains and alleges as follows:
22
PRELIMINARY ALLEGATIONS
23
A.
The
1.
At
Parties
24
all
times mentioned herein, Plaintiff was and
is
now
a California limited liability
25
company, qualified
t0
and lawfully doing business
in the
County 0f Santa Clara,
State 0f
26
California.
27
2.
Plaintiff alleges,
on information and
belief, that at all
28
10132.058
1
COMPLAINT
times mentioned herein,
PDF Page 3
Defendant
TESLA MOTORS,
INC. (“Tenant”) was and
is
a Delaware corporation, With
its
principal place 0f business located at the Premises (defined below).
The leased premises which
3.
are the subj ect 0f this matter are located in the
of Santa Clara, State 0f California and are commonly known by the
Row,
Suite 1035,
San
The
4.
Jose,
true
who
named
capacities,
herein as
therefore sues such defendants
shall collectively
by such
1
through 100, inclusive, are
Does
fictitious names.
1
unknown
to Plaintiff,
through 100, and Tenant
be referred to as “Defendants.” Plaintiff alleges, 0n information and
belief, that
through 100, inclusive, are in some manner responsible and 0r liable for the damages
Does
11
and/or action alleged herein. Plaintiff will
12
names and
13
ascertained.
14
Whether individual, corporate, associated 0r
Does
10
1
333 Santana
CA 95128 (the “Premises”).
names and
otherwise, 0f defendants
street address 0f:
County
capacities of such fictitiously
5.
amend this Complaint
named
defendants
When
on information and belief that
Plaintiff alleges
now is
t0
show and/or add
the identity 0f the
at all
the true
same has been
times mentioned herein, each
15
0f the Defendants was and
16
each 0f the other defendants, and in doing the things hereinafter mentioned, was acting Within the
17
scope 0f his/her authority as such agent, servant, employee, representative and/or
18
the permission and consent of the remaining defendants.
19
6.
Plaintiff alleges,
the agent, servant, employee, representative and/or alter ego of
0n information and
alter ego,
with
Defendants are jointly and
belief, that
20
severally liable for the claims asserted herein in that each bears
21
0f action asserted herein.
some
responsibility for the causes
and Venue
22
B.
Jurisdiction
23
7.
Section 17.21 0f the Lease (defined below) provides that “This Lease shall be
24
construed, and
25
accordance With the laws 0f the
26
8.
all
disputes, claims,
and questions arising hereunder
state
Within which the Village
is
shall
located.”
Section 17.22 0f the Lease (defined below) provides that
manner
“Any
27
dispute relating in any
28
occupancy 0f the Leased Premises, and/or any claim 0f injury 0r damage
10132.058
t0 the Lease, the relationship
2
COMPLAINT
be determined, in
action involving a
0f Landlord/Tenant, the use or
shall
be filed and
PDF Page 4
adjudicated solely in the state 0r federal courts of the jurisdiction in Which the Leased Premises are
located.”
Jurisdiction over Defendants
9.
is
proper pursuant to California Code of Civil
Procedure section 410. 10.
This Court has general personal jurisdiction over Tenant because, on information
10.
and
belief,
Tenant
is
qualified t0 do business in California, Tenant has had substantial and
continuous business contacts With California, the Plaintiff damaged by Tenant’s actions
California limited liability
company qualified
to
a
is
do business in California, and Tenant agreed
to
personal jurisdiction in the Lease.
10
Venue
11.
is
proper in this County pursuant t0 California Code of Civil Procedure
11
section 393, et seq., because Defendants transact business within this County, and because the
12
Lease Which
is at
the heart of this matter
was made and
t0
be performed in
this
County.
FACTUAL ALLEGATIONS
13
14
A.
The Lease
15
12.
On
or about
November
3,
2020, Landlord, as landlord, and Tenant, as tenant,
16
entered into that certain written Lease Agreement (together With any and
17
amendments, and/or other modifications, as applicable, including those described below, the
18
“Lease”) for the Premises, which are defined With further particularity in the Lease, located in the
19
mixed use
20
together with any and
21
applicable,
22
13.
23
proj ect
is
known
as Santana
ROW
A true and correct copy 0f the Lease,
attached hereto as Exhibit
is
currently the
owner 0f the Premises and holds
all
as
right
and
title
as
landlord under the Lease.
B.
The Applicable Lease Provisions
25
14.
Section 1.02.1 0f the Lease defines “Rent” as
15.
Section 5.01.A 0f the Lease provides that “Tenant shall pay
“Minimum Rent plus
Additional
Rent.”
27
28
etc.,
A and is fully incorporated herein by this reference.
24
26
addenda,
addenda, amendments, extensions, and any other modifications,
all
Landlord
(the “Village”).
all
all
Rent
t0 Landlord,
without prior notice or demand and Without offset, deduction or counterclaim whatsoever, in the
10132.058
3
COMPLAINT
PDF Page 5
amounts,
manner
at the rates
and times
set forth in this
set forth herein, prorated for
any
partial calendar
month, in the
Section 5.01 .A.”
Minimum Rent
i.
Section 5.02 0f the Lease provides that “Tenant shall pay Landlord the
16.
Minimum
Rent in equal monthly installments, in advance, commencing 0n the Rent Commencement Date,
and on the first day 0f each and every calendar month thereafter throughout the Term.”
The amount of Minimum Rent payable by Tenant during
17.
set forth in
was
Section 1.01 .F of the Lease. See Exhibit A.
At
18.
10
the term 0f the Lease
all
relevant times mentioned herein, the
Minimum Rent owed by Tenant was
$43,084.02 per month.
11
Additional Rent
ii.
12
Section 1.02.H 0f the Lease defines “Additional Rent” as “A11 sums payable by
19.
Minimum
Rent, Whether as reimbursement 0r
13
Tenant t0 Landlord under the Lease, other than
14
otherwise, and regardless of whether denominated as ‘Additional Rent.
15
Section 7.01.A 0f the Lease provides that “Tenant shall pay,
20.
16
for water, sewer, electricity, gas, telephone service
17
Premises (‘Utility Charges’).”
18
”’
and other
utilities
When
due,
all
charges
supplied t0 the Leased
Further, Sections 7.01.C, 7.01.D, and 7.01.E of the Lease require Tenant t0
21.
pay
for
19
Tenant’s share of Condenser Water Costs, Tenant’s Condenser Water Equipment Charge, and
20
Tenant’s Sprinkler Charge, respectively. At
21
Condenser Water System owed by Tenant totaled $583.85 per month, and the Tenant’s Sprinkler
22
Charge owed by Tenant totaled $1 16.77 per month.
23
Section 2 0f Exhibit
22.
24
services are] furnished or billed
25
as Additional Rent.”
26
iii.
27
28
23.
relevant times, the contribution related to the
D t0 the Lease further provides that “[i]f [trash removal
by or through Landlord, Tenant
shall
pay for such service monthly
Tenant’s Default and Landlord’s Remedies
Section 16.01 0f the Lease provides that a Default by Tenant occurs upon
“Tenant’s failure t0 pay, 0r
10132.058
all
make
available as required
by
4
COMPLAINT
this Lease,
any Rent (or any installment
PDF Page 6
thereof) within
five
(5)
and payable, however,
thereafter
Tenant
shall
days after Tenant receives notice from Landlord that the same
if
it
past due
twice within any twelve (12) month period, then
if Landlord gives notice
be in Default
is
pay any Rent within five
fails t0
(5)
days after same
is
due and payable Without the necessity 0f further notice.”
Section 16.02 goes on to provide that “If a Default occurs, Landlord shall have
24.
the rights and remedies provided in this Section 16.02., in addition t0
available under this Lease 0r provided at law or in equity,
Which
all
rights
all
other rights and remedies
may be
exercised
cumulatively”.
10
C.
The Default
25.
Notwithstanding the provisions 0f the Lease, commencing in 0r around June 2020,
11
and continuing
12
amount of $83,573.80.
13
14
26.
to date,
in
Rent
Tenant failed to pay
Accordingly, as of June
1,
all
rent that
27.
On
Rent”).
17
E and incorporated herein fully by this reference.
Furthermore, Plaintiff anticipates that Tenant Will continue t0
19
that Plaintiff Will accordingly incur daily
20
amount of at
least
damages
for each
$1,439.50 per day, commencing July
21
D.
The Attornevs’ Fees Provision
22
29.
Section 17.04 of the Lease provides that:
1,
day
2020
that
Tenant
until the
fail t0
fails t0
Landlord 0r Tenant institutes any suit against the other in
connection With the enforcement 0f their respective rights under this
If
24
Lease, the Violation of any term 0fthis Lease, the declaration oftheir
rights hereunder, 0r the protection of Landlord’s 0r Tenant’s interest
under
this
Lease, the non-prevailing party shall reimburse the
prevailing party within
26
five
(5)
days of demand for
its
reasonable
expenses incurred as a result thereof including court costs and
27
reasonable attomeys’ fees, even if Tenant pays past due Rent prior
t0 the rendering
0f any judgment.
28
10132.058
5
COMPLAINT
pay Rent and
pay Rent
time ofjudgment.
23
25
M
demanding
A true and correct copy 0f such letter is attached hereto as
payment of the Past Due Rent.
28.
Due
or about June 15, 2020, Landlord’s counsel sent a letter to Tenant
16
18
the Lease in the total
2020, there existed an arrearage in the total amount of
$83,573.80 due and owing under the Lease (the “Past
15
became due under
in the
PDF Page 7
30.
Plaintiff has retained the
law
firm
of Goodkin
Law
Group,
APC t0 protect its rights
under the Lease and has incurred and will continue to incur an unascertained amount of attorneys’
fees
and
costs. Plaintiff Will
seek those amounts
at the
time of trial.
FIRST CAUSE OF ACTION
(For Breach 0f Lease for Failure t0 Pay Rent against Tenant and Does 1-100)
3
1.
Plaintiff hereby incorporates paragraphs
1
through 30, as
if set forth fully
herein
and realleges each paragraph by reference.
32.
As
set forth
above, Plaintiff and Tenant are parties to the Lease whereby Tenant
leased the Premises in consideration for
10
11
33.
Tenant
in default 0f the
obligations set forth therein.
Lease for failure to pay Rent, as required under the
Lease, in the total amount 0f $83,573.80 as of June
12
34.
1,
2020
(the “Past
Due
Rent”).
Further, Plaintiff anticipates that Tenant Will continue t0 fail to
13
Plaintiff will further
14
1,
be damaged in the amount 0f at
least
pay Rent and
that
$1,439.50 per day commencing on July
2020.
15
16
is
all rental
35.
On the
other hand, Plaintiff has performed
all
0f its obligations under the Lease
except those that have been prevented 0r excused by the acts of Defendants and/or third parties.
17
36.
As
a legal and proximate result of Tenant’s conduct and the resulting breach of the
18
Lease, Plaintiff has sustained or Will sustain foreseeable damages, in the amount of $83,573.80 in
19
Past
20
attorneys’ fees, costs,
21
0f trial.
Due
22
Rent, at least $1,439.50 per day
37.
and legal
By reason
commencing 0n July
interest as permitted
1,
2020, plus other sums 0f
under the Lease,
damages and other charges owed under the Lease,
24
Which
25
California law, as well as attorneys’ fees and other costs as permitted
26
California law,
27
//
28
//
10132.058
according to proof at time
0f the foregoing, Plaintiff is entitled to recover from Defendants
23
is
all
in
an amount according to proof at
trial
but
estimated t0 exceed $83,573.80 plus interest thereon as permitted by the Lease and by
all
according to proof at time of trial.
6
COMPLAINT
by
the Lease and
by
PDF Page 8
WHEREFORE, Plaintiff prays
On A11
1.
for judgment against Defendants as follows:
Causes of Action:
For compensatory damages according to proof but Which Plaintiff estimates
total
$83,573.80 comprised 0f the Past
$1,439.50 per day commencing July
1,
Due Rent
as
0f June
1,
2020, and
t0
at least
2020, less any partial rent payments
received before the time ofjudgment, together With interest at the
maximum
allowable legal rate;
2.
For Plaintiff s reasonable attorneys’ fees in a sum
to
be established by
post-trial
motion;
incurred herein; and
10
3.
For the costs 0f the
11
4.
For such other and further
suit
relief as the court
deems
proper.
12
13
DATED:
GOODKIN LAW GROUP, APC
July 6, 2020
14
15
I
16
3%
By:
fl[/1
l
-/,/L#x/
Uaniel L. G/oodkin, Esq.
17
Allison
J.
Law, Esq.
Attorneys for
18
FRIT
Plaintiff,
SAN JOSE TOWN AND COUNTRY
VILLAGE, LLC
19
a California limited liability
20
21
22
23
24
25
26
27
28
10132.058
7
COMPLAINT
company
PDF Page 9
EXHIBIT A
PDF Page 10
LEASE AGREEMENT
BETWEEN
FRIT
SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC,
LANDLORD
AND
TESLA MOTORS,
DATE;
ARTICLE
I
INC.,
NOVEMEER
TENANT
5,,
MW
......................................................................................................................................
REFERENCE PROVISIONS, DEFINITIONS AND EXHIBITS
ARTICLE
ll
1
..........................
1
....................................................................................................................................
LEASED PREMISES AND THE VILLAGE
4
.........................................................
4
...................................................................................................................................
5
ARTICLE
III
ARTICLE
[V ...................................................................................................................................
5
AND OPERATION OF THE LEASED PREMISES .....................................
ARTICLE V ....................................................................................................................................
7
TERM
.....................................................................................................................
5
USE
RENT
......................................................................................................................
ARTICLE
VI ...................................................................................................................................
ARTICLE
VII
ARTICLE
VIII
COMMON AREAS
................................................................................................
...............................................................................................................................
..............................................................................................................................
CONSTRUCTION AND ALTERATIONS
..........................................................
ARTICLE X ..................................................................................................................................
AND LANDLORD'S ACCESS ..........................
ARTICLE XI .................................................................................................................................
REPAIRS, MAINTENANCE,
CASUALTY
XII
ARTICLE
XIII
9
10
12
INDEMNITY AND INSURANCE .......................................................................
ARTICLE IX .................................................................................................................................
7
9
10
UTILITIES ............................................................................................................
ARTICLE
5
12
15
15
17
17
18
.........................................................................................................
l8
...............................................................................................................................
20
CONDEMNATION
..............................................................................................
..............................................................................................................................
20
2]
INTENTIONALLY DELETED ............................................................................ 21
ARTICLE XIV .............................................................................................................................. 21
SUBORDINATION AND ATTORNMENT ........................................................ 21
ARTICLE XV ............................................................................................................................... 21
ASSIGNMENT AND SUBLETTING .................................................................. 21
ARTICLE XVI ..............................................................................................................................
24
DEFAULT AND REMEDIES .............................................................................. 24
ARTICLE XVII .............................................................................................................................
27
MISCELLANEOUS PROVISIONS
D - M:\LEGALI\PROPERTY\SANTANA\Tesla (Execution Copy).docx
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l/2/l0
27
PDF Page 11
LEASE AGREEMENT
fig
TOWN AND COUNTRY
This Lease Agreement (the “Lease")
2010, by and between
limited liability
FRIT SAN JOSE
company, by
is
made
this
day of
NDVCMb‘CX-
VILLAGE, LLC,
,
a California
managing member, STREET RETAIL, INC, a Maryland
TESLA MOTORS, INC, a Delaware corporation (“Tenant”).
its
corporation ("Landlord"), and
IN CONSIDERATION of the payments of rents and other charges provided for
herein
and the covenants and conditions hereinafter set forth, Landlord and Tenant hereby covenant
and
agree as follows:
ARTICLE
I
REFERENCE PROVISIONS DEFINITIONS AND EXHIBITS
As used
in the
Section 1.01.
A.
square
Lease, the following terms shall have the following meanings.
Reference Provisions.
Leased Premises: Approximately one thousand eight hundred sixty-four
commonly known
(I
,864)
#3035 cross-hatched on the attached Exhibit A, located at
Stevens Creek Boulevard and Winchester Boulevard, San Jose, California
95128, and as defined
in Article II. As used herein, the “Building” means the
separate building number 3 ofthe Village
in which the Leased Premises is located.
feet,
as Store
B.
Term: Ten (10) Lease Years, commencing on the Term Commencement
Date,
and ending on the Termination Date.
C.
Term Commencement
Date: The date Landlord delivers the Leased Premises to
Tenant with any Landlord’s Work substantially complete (i.e., subject
only to “punchlist” items).
Landlord presently anticipates that the Term Commencement Date
will occur on about February
l, 201
(the “Anticipated Delivery Date”), which Anticipated Delivery
Date shall be extended on
a day-for-day basis for (a) each day beyond October
15, 2010, that this Lease is not fully
executed and delivered, (b) any Tenant Delay (as defined in Exhibit
and
l
B),
(c) the factors set
forth in Section l7. l 3.
Landlord shall provide Tenant with Notice that Landlord is prepared to
deliver the Leased Premises and, within three
(3) days of Tenant’s receipt of such Notice, each
of Landlord and Tenant shall make a representative available to
perform a walk-through of the
Leased Premises, the purpose ofwhich walkthrough shall be confined to
establishing a written
“punchlist,” to be signed by each of Landlord and
Tenant at the conclusion 0fthe walkthrough.
The conclusion 0f the walkthrough shall constitute delivery of possession and
the Term
Commencement Date shall then occur, provided that the incomplete items are “punchlist”
items (i.e., capable of being completed by Landlord within
thirty (30) days without material
interference to Tenant). Any items noted on the “punchlist” shall
be corrected by Landlord as
soon as reasonably practicable, but in no event later than thirty
(30) days following the Term
Commencement
Date. In the event that certain elements of Landlord’s Work
remain
incomplete and the expected duration 0f completion exceeds thirty
(30) days, the Term
Commencement Date shall be extended on
a day-for-day basis until such time as the same
are either complete or capable of being completed within
thirty (30) days.
D.
Rent Commencement Date: The earlier of (i) the date Tenant opens for business
from the Leased Premises, or (ii) seventy-five (7S) days afier the later
to occur of
(l) the Term
Date, (2) the date that Tenant’s Building Permits (as defined in Addendum
V)
have been issued, provided that Tenant shall “diligently pursue” the issuance
of the same (as such
Commencement
term
is
defined
E.
Lease
is
in Article V).
Termination Date: The
terminated
F.
last
day of the Term, or the
earlier date
on which
this
accordance with the provisions hereof.
in
w
Minimum
Rent:
Lea;
Annually
Monthly
l
$206,000.00
$ 1 7, l 66.67
2
$21 2,] 80.00
$ l 7,68 1 .67
3
$2 I 8,545.00
$1 8,212.08
D - MALEGALI \PROPERTY\SANTANA\T§II (Execution Copy)‘docx
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4
$225, 102.00
5
$231,855.00
$19,321.25
6
$238,810.00
$19,900.83
$1 8,758.50
7
$245,975.00
$20,497.92
8
$253,354.00
$21,] 12.83
9
$260,955.00
$21,746.25
lO
$268,783.00
$22,398.58
G.
Intentionally deleted.
H.
Intentionally deleted.
l.
Intentionally deleted.
J.
Annual Sprinkler Charge (to be paid monthly with Minimum Rent): $466 per
annum, or $38.83 per month, based upon $0.25 per square foot ofFloor Area
(as defined below)
ofthe Leased Premises.
K.
Intentionally deleted.
L.
Annual Condenser Water Equipment Charge (to be paid monthly with Minimum
annum, or $194. 7 per month, based upon [$1 .25 per square foot of Floor
Rent): $2,330.00 per
1
Area ofthe Leased Premises].
M.
Security Deposit:
N.
Permitted Use: The operation of a first-class
branded electric
Twenty Thousand and
00/1 00 Dollars ($20,000.00).
showroom
for the sale
ochnant-
and for the incidental sale ofrelated merchandise and logo-bearing
accessories. [n addition, Tenant shall be permitted to use the Leased
Premises for the periodic
hosting of marketing and charitable events. The Leased Premises
shall be used for
cars,
no other
purpose whatsoever, and
set forth in
be subject to the existing "exclusive uses" and "prohibited uses"
Exhibit F attached hereto (collectively, the "Use Restrictions").
Such Use
shall
Restrictions are provisions from other
documents afiecting the Village and the Commercial
Portion, including other tenants’ leases, and shall be
O.
(i)
Saturday, 10:00
Monday through
Store Hours:
A.M.
to 10:00 P.M.;
deemed
to bind Tenant but not Landlord.
Thursday, 10:00 A.M. to 9:00 P.M.; Friday and
and Sunday, 10:00 A.M. to 6:00 P.M., subject to the
provisions of Section 4.01.
(ii) Normal Village Hours: Monday through Thursday, 10:00
A.M. to 9:00 P.M.;
Friday and Saturday, 10:00 A.M. to 10:00 P.M.; and Sunday, 11:00 A.M. to
6:00 P.M.
P.
Rent Payments: Rent payments due herein
FRIT
shall
be
made payable
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC
-
to Landlord at:
Property 1638
c/o Federal Realty Investment Trust
P.O.
Box 79408
City of Industry,
Q.
CA
91 716-9408
Notice Addresses:
TO LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY VILLAGE, LLC
c/o Federal Realty Investment Trust
1626 East Jefierson Street
20852-4041
Rockville,
MD
Attention: Legal Department
TO TENANT:
TESLA MOTORS,
INC.
3500 Deer Creek Road
Palo Alto, CA 94304
Attention: George Blankenship
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project
R.
Commercial Portion: That
known
as Santana
certain
Row (the “Village”),
commercial portion ofthat certain mixed use
located in San Jose, California.
The Village
contains a residential portion (the “Residential Portion”) adjacent to and/or above some ofthe
Commercial Portion. The Residential Portion is controlled separately fiom the Commercial
Portion and for purposes ofthis Lease shall not be
deemed to be a part of the Commercial
understood and agreed that the Commercial Portion shall be comprised ofall
portions of the Village other than the Residential Portion.
Portion.
It is
S.
Trade Name: Tesla, subject to the provisions of Section 4.02.
T.
Exhibits and Addenda:
incorporated in and
Exhibit
made a
part
A
The following
exhibits and
addenda are hereby
of the Lease.
Site Plan
B
Exhibit C
Exhibit
Landlord and Tenant Improvements
Signage Criteria
Exhibit
D
Rules and Regulations
Exhibit
E
Gross Sales Statement Form
Exhibit F
Use
Addendum I
Addendum II
Addendum III
Addendum IV
Addendum V
Asbestos Containing Material
Section 1.02.
Restrictions
Construction Allowance
Termination Rights
Tenant’s Parking/Charging Area
Lease Contingency
Definitions.
Common
A.
Any existing or future improvements, equipment, areas and/or
common and joint use or benefit of Landlord, Tenant and other
Areas:
spaces for the non-exclusive,
tenants, occupants
and users of the Commercial Portion; provided, however, the Common Areas
used by residents and invitees of the Residential Portion upon such terms
and conditions
as shall be established by the Declaration (as hereinafler defined in
Section
may be
17.25).
Common
roads,
all
The
Areas include, without limitation, sidewalks, roofs, gutters and downspouts, all
private
parking areas (surface and subsurface) except for those parking areas,
escalators and
elevators exclusively serving the Residential Portion, access roads,
driveways, landscaped areas,
service drives and service roads, traffic islands, loading and service
areas, stairs, ramps,
elevators, escalators, comfort
and first aid
stations, public
washrooms,
central
HVAC plant
and/or condenser water distribution system, and other similar areas and
improvements.
B.
“pad
sites”, (ii)
Major Tenants: Those tenants in the Commercial Portion leasing
(i) so-called
space with a Floor Area of fifieen thousand (15,000) square feet or more, or
(iii)
space to use as a specialty grocery store operation, regardless of the size of the
space so leased.
C.
Floor Area: For the Leased Premises, the
number of square feet set forth in
remeasurement as provided below in this paragraph. For any
Commercial Portion, the number of leasable square feet as determined
by
Section 1.01 .A., subject to
other space in the
Landlord, excluding
(i)
any square footage comprising the Commercial Portion which
separately leased by other tenants or occupants of the
purposes, and
(ii)
any hotel which
may
Commercial Portion exclusively
be part of the Village.
Upon
is
for storage
written request from
Tenant within sixty (60) days from the date of Landlord’s delivery of possession of the
Leased Premises to Tenant, Landlord and Tenant hereby agree that within thirty
days
(30)
after Landlord’s receipt of Tenant’s written request, a representative of each
party shall
jointly field measure the Leased Premises to determine the exact square footage. Such
field
measurement
made from the outside of exterior walls and from the centerline of
The Minimum Rent and Tenant’s Floor Area set forth in Section
1.01.A. shall be adjusted in accordance with the new measurement of the square
footage.
Landlord and Tenant shall execute a letter agreement setting forth the new square footage
shall be
interior demising walls.
and adjusted Rent.
If Tenant fails to timely request measurement of the Leased Premises,
then the square footage set forth in Section 1.01 of this Lease shall be deemed accurate and
accepted by Tenant.
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D.
maximum
A rate per annum ofthe lesser of (i) ten
Interest:
percent (10%) or
(ii)
the
permitted by law.
E.
Lease Year:
Commencement
Each twelve (12) month period beginning with the Term
Date, and each anniversary thereof, provided the Term Commencement Date
occurs on the first day of a month. If the
Term Commencement Date occurs on a day other than
the first day of a month, then the first Lease Year shall begin on the first
day of the month
following the Term Commencement Date.
Lease Year:
F.
Partial
G.
Person:
Any
period during the
Term which
is less
than a
full
Lease
Year.
company, or any other
An
individual,
firm, partnership, association, corporation, limited
liability
entity.
H.
Additional Rent: All sums payable by Tenant to Landlord under the Lease, other
than Minimum Rent, whether as reimbursement or otherwise, and regardless
of whether
denominated as “Additional Rent”.
I.
Rent:
Minimum Rent
J.
Intentionally deleted.
K.
Intentionally Deleted.
plus Additional Rent.
L.
Legal Requirements: All laws, statutes, orders, ordinances, zoning and
other
regulations and ordinances of federal, state, county, municipal and other
governmental authorities
having jurisdiction.
ARTICLE
II
LEASED PREMISES AND THE VILLAGE
Section 2.01.
Leased Premises.
Landlord demises and leases to Tenant, and Tenant leases from Landlord, the
Leased
Premises, including any loading dock designated exclusively for Tenant’s
use. Landlord has the
exclusive right to the exterior faces ofthe exterior walls ofthe Leased
Premises and the Building
(excluding Tenant‘s storefront). In order to service the Common Areas
and/or other occupants of
the Village, Landlord reserves the right to install, maintain,
use, repair and replace pipes, ducts,
cables, conduits, plumbing, electrical systems, HVAC, vents,
utility lines and wires and other
system components that run to, in, through, above and below the Leased Premises
and
other parts
of the Building, the Commercial Portion, and the Village. Landlord shall use
reasonable efforts
in the exercise of such rights to not materially interfere
with Tenant’s business operations in the
Leased Premises.
Notwithstanding anything to the contrary contained herein, Landlord shall locate
conduits, wires and other materials or facilities which serve the Village
and pass
th rough the Leased Premises above the dropped ceiling
of the Leased Premises, in the walls
next t0 columns, under the floors, or in other locations hidden from view.
Any change in
all pipes,
said pipes. conduits, ducts, wires
and other materials shall be performed by Landlord at its
and expense unless the same is required or caused by the conduct of the Tenant, in
which event Tenant shall reimburse Landlord the reasonable cost thereofwithin ten
(10)
days after receiving Landlord‘s invoice therefor. Landlord shall perform all work within
the Leased Premises pursuant to this Article II in such a manner so as to not
materially
sole cost
interfere with Tenant‘s use
and operation 0f the Leased Premises.
lf the exercise of the foregoing rights materially and substantially
interferes with the
operation of Tenant’s businws to the extent Tenant is unable to operate its business in the
Leased Premises for a period of forty-eight (48) or more consecutive hours, then Tenant’s
sole and exclusive remedy shall be an abatement of all Rent and other charges for
the total
period of time Tenant
is
unable to operate
its
business in the Leased Premises.
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ARTICLE
III
TERM
Section 3.01.
Term.
The Term of this Lease shall commence on the Term Commencement Date and expire on
the Termination Date. This Lease shall terminate on the Termination Date without the necessity
ofNotice from either Landlord or Tenant. Upon the Termination Date, Tenant shall quit and
surrender to Landlord
ordinary wear and
foregoing,
all
(i)
the Leased Premises, broom-clean, in
tear excepted,
and
(ii) all
good order and condition,
keys for the Leased Premises. Notwithstanding the
obligations of the parties, as set forth in this Lease, shall be binding as ofthe date
Upon request from Landlord, Tenant shall sign a certificate setting forth the Term
Commencement Date, the Rent Commencement Date and the Termination Date.
hereof.
Section 3.02.
Holding Over.
If Tenant fails to vacate the Leased Premises on the Termination
Date, Landlord shall
have the benefit of all provisions of law for speedy recovery of possession ofthe Leased
Premises and for damages (including
lost business), subject to the terms of this Lease.
the Termination Date (“Holdover Occupancy”) shall be a tenancy at will, and
shall be subject to all terms, covenants, and conditions ofthe Lease, except
that the daily
Occupancy afier
Minimum Rent for each day that Tenant holds over (“Holdover Minimum Rent”) shall
and one-half (1-1/2) times the daily Minimum Rent payable in the last Lease Year.
equal one
Notwithstanding anything to the contrary in the foregoing, the Holdover Minimum
be applicable (i) in the event Tenant is holding over with Landlord’s written
consent, in which event the tenancy shall be a month-to-month tenancy subject to
all of the
terms, conditions and covenants of the Lease; or (ii) during the sixty
(60) days following the
Termination Date if Landlord and Tenant are negotiating an extension of the Lease in good
faith during such sixty (60) day period.
Rent
shall not
ARTICLE IV
———————————
Section 4.01.
A.
Continuous Qggration by Tenant.
Tenant
Commencement
Date;
shall:
(ii)
(i)
open the Leased Premises for business on the Rent
all times in the Leased Premises a full stock of
merchandise;
carry at
employ reputable business standards and practices; and (iv) subject to the provisions of
Section 4.03, operate the entire Leased Premises continuously and uninterruptedly during
the
Term. Tenant shall use for storage and ofiice space only those areas indicated for such use on
Tenant’s plans approved by Landlord.
(iii)
B.
Notwithstanding anything to the contrary contained in Section 4.01.A.,
Tenant shall be permitted to be closed for two (2) non-consecutive days in each Lease Year
for restocking and inventory purposes, and one (1) seven
(7) day period during the Term
for renovations or necessary repairs; provided Landlord
prior written notice in each instance.
is
given at least thirty (30) days’
C.
Tenant shall have the right
D.
Subject to the provisions of Section 4.03, Tenant’s violation ofthis Section 4.01
an immediate Default, and in addition to (i) any other rights and remedies
to remain closed on Thanksgiving Day,
Christmas Eve, Christmas Day, New Year's Day, July 4'“ and Easter Sunday, and not more
than two (2) other days per year (in addition to the days Tenant is permitted to be closed
under Section 4.01.8. above), provided Landlord is given reasonable advance written
notice of such days.
shall constitute
available to Landlord, and
(ii)
Rent, Tenant shall pay to Landlord, upon demand, liquidated
damages (and not as a penalty) equal
to
twenty-five percent (25%) of the daily Minimum Rent
otherwise payable for each day such violation continues up t0 a maximum ofthree
hundred sixtyfive (365) consecutive days. Payment of such sums shall be only a partial and temporary
remedy
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and shall not relieve Tenant of any obligation under the Lease, excuse any default
or waive Landlord's other remedies. Tenant acknowledges and agrees that if it breaches Section
4.01 .A., Landlord shall be deprived of an important right under this Lease, and as a result will
for Landlord,
damages in an amount which is not readily ascertainable, and that the foregoing liquidated
damages are a reasonable and equitable determination of Landlord’s actual damages resulting
suffer
from Tenant’s breach.
Use and Trade Name.
Section 4.02.
Tenant shall use the Leased Premises solely for the Permitted Use, and shall operate
business in the Leased Premises solely under the Tenant Trade Name.
Tenant
to
be used,
in
its
shall not use the
any manner or
Leased Premises, or permit the Leased Premises (or the Building)
for purposes which are prohibited by Legal Requirements or
by
covenants, conditions, declarations, limitations, easements or restrictions now or hereafier of
record which are applicable to the Village, without the prior written consent of Landlord, which
may be withheld
Landlord’s sole discretion. Tenant acknowledges and agrees it is solely
responsible for determining if its business complies with the applicable Legal Requirements,
and
Landlord makes no representation (explicit or implied) concerning such Legal Requirements.
in
Notwithstanding the foregoing, Tenant may, without Landlord’s consent, change
Trade Name to a name being used by Tenant for the operation of its electric car
production business or as a model name for its automobiles, so long as
(i) concurrently
therewith the trade name of substantially all other similar stores owned, operated or
the Tenant
controlled by Tenant and
same trade name,
(ii)
its
affiliates in the United States shall likewise be
changed to the
not conflict with the trade name of any other
Tenant pays the cost of all necessary Sign changes
such trade
tenant in the Village, and
(iii)
name does
throughout the Village.
Tenant agrees
provide Landlord at least thirty (30) days’ prior written notice of
to submit to Landlord for approval plans and specifications for such
sign prior to the installation of a new Sign.
the
to
name change and
Section 4.03.
Tenant
Store Hours.
shall
conduct
business
in the Leased Premises continuously during the Store
Hours. Notwithstanding anything contained herein to the contrary, Tenant shall have no
obligation to be open for business during the Store Hours specified in Section
1.01(N)
unless tenants occupying at least seventy-five percent (75%) of the retail Floor Area
with
its
storefront entrances facing the mall on Santana
Row
(excluding
Major Tenants)
shall
be
open during such hours and/or days.
Section 4.04.
A.
Signs and Advertising.
Prior to the Rent
Commencement
identification sign (“Sign“ or “Signs”).
The
Date, Tenant shall install a storefront
design and manner of installation of all Signs,
including but not limited to said Sign(s), shall be subject to Landlord’s prior written approval.
Tenant shall submit reasonably detailed drawings of all proposed Signs for Landlord’s review
and written approval prior
foregoing,
size,
to installation or utilization
of said Signs. Notwithstanding the
Tenant may be permitted the maximum exterior signage permitted by the City
of San Jose.
B.
Tenant
shall not place Signs
on the doors, windows, roof or exterior of the Leased
lettered Signs and flashing Signs visible from
the Common Areas are prohibited. Any Signs within two feet (2’) ofthe storefront of
the Leased
Premises must: (i) be (a) professionally designed and manufactured, and (b) used in substantially
all ofTenant’s (and its afiiliates’) stores operating under the Trade Name;
(ii) not flash, blink or
Premises, or in any display
window
space.
otherwise light in an alternate fashion;
(iii)
Hand
not individually exceed two feet (2’) by three feet (3’)
aggregate exceed more than one-third (1/3) of the glass portion ofthe storefiont;
and (iv) not be taped or affixed to the glass of the storefront windows or doors. Signs may be
mounted on plexiglass and hung with thin wire behind the storefront or displayed on an easel.
in size,
or
in the
minimum of twelve inches (12”) behind the
Notwithstanding the foregoing, Tenant shall have the right to display its customary
seasonal and promotional display signs within the Leased Premises. Notwithstanding the
All Signs within the storefront must be located a
glass.
provisions set forth herein including Exhibit C, Tenant will be permitted to apply Tenant’s
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standard storefront logo signage in small vinyl or painted letters on the storefront glass
provided such signage is consistent with Tenant’s other locations and such signage dow not
exceed six inches (6”) in height; provided, however, that until such time as Tenant has
opened other locations, the same
C.
which
shall be subject to Landlord’s reasonable approval.
Landlord may, upon Notice to Tenant and at Tenant’s sole risk, remove any items
of this Section 4.04. Tenant shall maintain all Signs in first class
violate the provisions
condition, operating order and repair. If Tenant fails to repair any of its
than three (3) business days following Notice from Landlord, Landlord
Tenant's sole cost and expense, unless such
damage
is
damaged Signs
may make
of such a nature that
it
for
more
such repairs at
cannot
reasonably be repaired within such five (5) days, in which case Tenant must commence
such repair within said five (5) days and diligently pursue said repair to its completion.
Section 4.05.
Tenant’s Use
Of Roof.
INTENTIONALLY DELETED.
Section 4.06.
Retail Restriction Limit.
Tenant, or
ofi'lcers, directors,
members, affiliates and partners, shall not directly or
manage, or have any interest in any other store, showroom or business
carrying the same or similar merchandise and operating under the same or a similar
trade name as
the Trade Name (a “Violating Store”) (a) during the first five
Lease
within
Years,
five (5)
(5)
miles ofthe Village, and (b) fi‘om and afier the first day ofthe sixth (6m) Lease
Year, at that
certain shopping center presently known as “Valley Fair Mall” and located
at 2855 Stevens
Creek Blvd., Santa Clara, CA (or on any adjacent property owned or controlled
by the party that
owns or operates such shopping center (or any affiliate of such party)). If this covenant is
its
indirectly operate,
breached, as Landlord’s sole and exclusive remedy therefor, Tenant shall commence
the
immediate (i.e., not subject to any cure periods) payment to Landlord, upon
demand, of
liquidated damages (and not as a penalty) in an amount equal to
(i) the daily Minimum Rent
otherwise payable for each day such violation continues ifthe same shall occur
during the first
three (3) years following the Rent
Commencement Date, or (ii) fi’om and afier the first day ofthc
Commencement Date through the end ofthe Term, thirty
Minimum Rent otherwise payable for each day such violation
fourth (4m) year following the Rent
percent (30%) ofthe daily
continues. Tenant represents that by entering into this Lease
restriction
by which
it is
bound under any other
it
will not breach or violate
lease or agreement to
covenant shall not apply to an automobile service or maintenance
shall not sell or engage in the sale of motor vehicles.
any
any other Person. This
facility,
provided that the same
ARTICLE V
RENT
Section 5.01.
A.
Rent Payable.
Tenant
Rent to Landlord, without prior notice or demand and without
deduction or counterclaim whatsoever, in the amounts, at the rates and times set
forth
herein, prorated for any partial calendar month, in the manner set forth in this
Section 5.01 .A.
shall
pay
all
offset,
All payments 0f Rent shall be
made at the place set forth in Section 1.01. or as Landlord may
otherwise designate by Notice to Tenant. Tenant shall have no obligation to
separately
contribute to Landlord’s cost of maintaining the Common Areas, Taxes, or Landlord’s
insurance premiums.
B.
If Rent is not received within ten IO) days of the date such Rent is
(
due, Tenant
pay Landlord a late charge equal to Twenty Dollars ($20.00) per day from the due date until
the date of receipt by Landlord. Payment of such late charge shall not excuse
or waive the late
payment of Rent. Tenant acknowledges and agrees that such late charge is a reasonable estimate
ofthe damages as a result of Tenant's violations of this Section 5.01 .B. and that it would be
shall
impracticable or extremely difficult to determine Landlord's actual damages.
Notwithstanding anything to the contrary contained in the foregoing, no late charge
Rent shall be assessed against Tenant until five (5) days after written notice
from Landlord of Tenant’s failure to pay Rent. Notwithstanding the foregoing, if
for delinquent
Landlord
D
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shall
have given Tenant written notice as
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month
period, then thereafter no written notice shall be required from Landlord
before invoking the late charge provided for in this Section 5.01.8.
(12)
C.
If Landlord receives two (2) or more dishonored checks fiom Tenant, all
subsequent Rent checks for twelve (12) months following the date of the dishonored checks
shall be bank certified and Landlord shall not be required to accept
checks except in such form.
Tenant shall pay Landlord any bank service charges resulting fiom dishonored checks, plus
Twenty-Five Dollars ($25.00) for the first such dishonored check, and Thirty-Five Dollars
($35.00) for each such dishonored check thereafier, as compensation to Landlord for its
additional processing costs.
Any payment by Tenant of less than the total Rent due shall be treated as a
payment on account. Acceptance of any check bearing an endorsement, or accompanied
by a
letter stating, that such amount constitutes “payment in full”
(or terms of similar import) shall not
be an accord and satisfaction or a novation, and such statement shall be given no effect.
Landlord may accept any check without prejudice to any rights or remedies which
Landlord may
have against Tenant.
D.
E.
For any portion of a calendar month at the beginning ofthe Term, Tenant shall
pay in advance the pro-rated amount of the Rent for each day included in such portion ofthe
month.
Section 5.02.
Pament of Minimum
Tenant
shall
commencing on
Rent.
Minimum Rent in equal monthly installments, in advance,
Commencement Date, and on the first day ofeach calendar month
pay Landlord the
the Rent
thereafier throughout the Term.
Section 5.03.
Regorting ofGross Sales.
Tenant shall report Gross Sales, as that term
accordance with the provisions hereinafier set forth.
Section 5.04.
A.
is
hereinafier defined, to Landlord
in
“Gross Sales” Defined.
The term “Gross Sales” means
the actual prices charged, whether for cash or on
Tenant
and any sublessees, concessionaires and/or licensees from the
by
Leased Premises, including catalog, electronic and telephone sales and orders
taken in or from
the Leased Premises but filled elsewhere, all without credit to Tenant
for uncollected or
credit, for all sales
uncollectible credit accounts.
Each charge or sale upon installment or credit shall be treated as a
sale for the full price at the time such charge or sale is made,
regardless ofwhether or when
Tenant receives payment. Deposit amounts
shall
be included
in
Gross Sales when received.
B.
The following items shall be excluded from Gross Sales: (i) any exchange of
merchandise between stores ofTenant if not for the purpose of consummating a
sale from the
Leased Premises; (ii) returns to shippers 0r manufacturers; (iii) cash or credit
refunds to
customers on transactions otherwise included
Gross Sales, provided the full value attributed to
a trade-in item at the time the sale is included in Gross Sales;
(iv) all sums and credits received in
settlement of claims for loss or damage to merchandise;
(v) sales of trade fixtures and store
operating equipment afier use thereof; (vi) any government sales or excise
tax; (vii) discount
employees up
in
two percent (2%) of annual Gross Sales; and (viii) receivables reported
income tax purposes, up to two percent (2%) of annual Gross
Sales. No franchise tax, capital stock tax, tax based upon assets or net
worth, gross receipts tax,
or income or similar tax shall be deducted from Gross Sales.
sales to
to
as bad debt for federal and state
Section 5.05.
Within
Tenant
Statements of Gross Sales.
days following the end of each Lease Year or Partial Lease Year,
Landlord a written statement, certified to be complete and correct
by
thirty (30)
shall deliver to
Tenant, showing the amount of Gross Sales for such Lease Year or Partial Lease Year.
Section 5.06.
Records and Audits.
INTENTIONALLY DELETED.
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Section 5.07.
Taxes.
The term “Taxes” means
all governmental or quasi-govemmental taxes, fees, charges and
assessments (whether general, special, ordinary, or extraordinary) applicable to the Commercial
Portion directly or as the
same may be allocated under any declaration applicable to the Village
or hereafier of record, including leasehold taxes or taxes based upon the receipt of rent
(including gross receipts or sales taxes applicable to the receipt ofrent, unless required to be paid
now
by Tenant) and the Common Areas, together with all reasonable costs and fees (including
reasonable appraiser, consultant and attomey’s fees) incurred by Landlord in any tax contest,
appeal or negotiation. “Taxes” shall include, without limitation, any assessment, tax,
fee, levy or
charge in addition to, or in substitution, partially or totally, ofany assessment,
tax, fee, levy or
charge previously included within the definition of real property tax, it being acknowledged
by
Tenant and Landlord that Proposition l3 was adopted by the voters of the State of California in
the June 1978 election ("Proposition l3") and that assessments, taxes,
fees, levies and chargw
may be imposed by governmental
agencies for such services as fire protection, street, sidewalk
for other governmental services formerly provided
and road maintenance, refuse removal and
without charge to property owners or occupants, and, in further recognition of the decrease in
the
level and quality of governmental services and amenities as a result of Proposition
l3, Taxes
shall also include any governmental or private assessments or the Commercial Portion‘s
contribution towards a governmental or private cost-sharing agreement for the purpose of
augmenting or improving the quality of services and amenities normally provided
by
governmental agencies. “Taxes” shall not include personal income taxes, personal
property
taxes, inheritance taxes, or franchise taxes levied against the Landlord,
said property, even though such taxes might become a lien against said
Section 5.08.
Intentionally deleted.
Section 5.09.
Taxes on Tenant’s Personal Propem.
and not directly against
property.
Tenant shall pay all governmental taxes, charges, fees and assessments applicable to
Tenant’s personal property, trade fixtures, inventory and Tenant’s Rent obligation
before they
become
delinquent.
ARTICLE VI
COMMON AREAS
Use of Common Areas.
Section 6.01.
Tenant
have a non-exclusive right to use the
Common Areas (including the
not exclusively reserved for the
Residential Portion, or the guests, customers, and patrons of any hotel which
may be part ofthc
Village), subject to the provisions of this Lease and subject to the exclusive control and
shall
unrestricted right to use
all
parking
in
the Village that
is
management of Landlord and
the rights of Landlord and of other tenants. Tenant shall comply
with such reasonable rules and regulations as Landlord prescribes regarding use of
the
Commercial
Common Areas for any sales or display purposes,
or for any purpose which would impede or create hazardous conditions for the
flow of pedestrian
or other traffic. Tenant shall use only such entrances, exits, and service lanes in
the rear ofthe
stores as designated by Landlord for the loading or unloading of trucks or other
vehicles,
Portion. Tenant shall not use the
however, Tenant may accept delivery from nationally recognized delivery services through
any entrance at anytime. Tenant and Tenant's employees shall use only the employee parking
areas (if any) designated
contained elsewhere
by Landlord. Notwithstanding the foregoing or anything
to the contrary
Landlord may, in its sole discretion, charge customers and
employees ofthe Village for automobile or other vehicular parking, and/or install parking meters
in the street, lot or
in this Lease,
garage parking for the Village.
Section 6.02.
Landlord
Management and Operation of Common Areas.
shall operate, repair,
determines, including
seating, food facilities
Village;
(i)
using the
Common Areas as Landlord
Areas for promotions, exhibits, displays, outdoor
equip and maintain the
Common
and any other use which tends
granting the right to conduct sales in the
to attract
customers to or benefits the
Common Areas;
(iii) erecting, removing
and other improvements within the
Common Areas; (iv) entering into, modifying and terminating easements and other agreements
pertaining to the use and maintenance ofthe Village; (v) constructing, maintaining,
operating,
(ii)
and leasing kiosks,
planters, pools, sculptures, buildings
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replacing and removing lighting, equipment, and Signs on all or any part of the Common Areas;
(vi) providing security personnel or systems for the Commercial Portion; (vii) restricting parking
in the Commercial Portion; (viii) discouraging non-customer
parking;
temporarily closing
(ix)
all
or any portion ofthe Village; and (x) converting Santana Row into a pedestrian mall so long
as
vehicular access is available from Winchester Boulevard and Stevens Creek Boulevard to the
parking facilities serving the Commercial Portion.
Notwithstanding anything to the contrary contained elsewhere herein, Landlord
any time during the Term cause or permit the construction, installation,
operation or leasing of any kiosk, cart, retail merchandise unit, newspaper rack or other
shall not at
“No Kiosk Area” identified on the site plan attached hereto as
Exhibit A; provided, however, that the same shall in no event be construed to
prohibit
similar obstruction in the
Landlord from the placement of benches, landscaping or other decorative items
within
such area.
In addition, subject to Legal Requirements, the rights of existing tenants
and any
applicable rules or regulations of Landlord (including any reasonable
safety measum
imposed by Landlord), Tenant shall have the right, from time to time, to load its vehicles
(“Loading”) through the storefront of the Leased Premises in the
the conditions set forth herein:
manner and subject
to
a.
Any Loading shall occur during the hours of 7:00 am, PST, and
b.
In no event shall any vehicle be permitted to remain in or around
the “Car
Drop-Off Area” identified on Exhibit A in excess of three
(3) minutes at any one
time (which the parties agree may be shortened
Landlord’s verbal
10:00 am, PST.
requwt
by
therefor during any period of placement thereon
by Tenant).
Any Loading
c.
shall only occur along the route identified therefor on Exhibit A
as
“Tenant’s Path For Car Delivery,” which route the parties agree
may be subject
to reasonable modification by Landlord from time to time.
d.
The actual delivery and installation of the vehicles into the Leased Premises shall
on be performed through the use of loading jacks and no vehicles shall be driven
on the pedestrian walkway.
e.
Tenant shall repair any damage to the Village caused or occasioned
by any
Loading within two (2) days of any demand therefor (or Landlord may do so at
Tenant’s expense without any further period of delay).
f.
All
Loading
shall
be coordinated with Landlord at least five
(5)
business days in
advance.
In conjunction with any Loading, Landlord agrees to use reasonable
efforts to
maintain the that certain pedestrian walkway curb ramp in the approximate
location
identified on Exhibit A for the purpose of enabling Tenant to
access the sidewalk;
provided, however, that Landlord shall have no obligation in the event that the
same shall
be removed or is otherwise unavailable.
ARTICLE
VII
UTHJTIES
Section 7.01.
A.
Utilig Charges.
Tenant
shall pay,
when
charges for water, sewer, electricity, gas,
utilities supplied to the Leased Premises (“Utility Charges”). Electric
utility charges shall be based upon test meter readings and water
utility charges shall be based
upon flow meter readings as provided below.
due,
all
telephone service and other
B.
Landlord shall install, at Landlord’s expense, a check meter, test meter or other
such device(s) that measures actual electricity usage. Tenant shall
pay Landlord Tenant’s
proportionate share of the electric Utility Charges based upon such readings, plus service
fees for
reading Tenant’s check meter, test meter or other such device(s), on the first
day of each calendar
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month, provided such Utility Charges shall be comparable and competitive to the rates Tenant
would be charged if billed directly for the same services by the local utility authority. It is the
intent
ofthe parties that Tenant’s proportionate share of Utility Charges
Minimum Rent.
is
separate from and in
addition to
C.
Notwithstanding the foregoing, Tenant shall install, at Tenant’s expense, a flow
meter that measures Tenant's use of condenser water from the condenser water distribution
system serving the Village (the "Condenser Water System") (if a meter is not presently installed
within the Leased Premises). and Tenant shall pay its proportionate share of Condenser Water
Costs (defined as Landlord's costs of operating and maintaining the Condenser Water
System
including an administrative charge oftwenty percent (20%) ofthe total of all other costs
included
Condenser Water Costs). Tenant's proportionate share of Condenser Water Costs (which shall
be based upon the flow meter readings) is a fraction, the numerator ofwhich is the
amount of
condenser water used by Tenant and the denominator of which is the amount 0f condenser
water
used by all occupants of the Village. It is the intent ofthe parties that Tenant's
proportionate
share of Condenser Water Costs is separate fi'om and in addition t0 Minimum
Rent.
in
D.
In addition to Tenant's proportionate share
E.
Tenant
ofCondenser Water Costs, Tenant
pay Tenant's Condenser Water Equipment Charge, payable in equal monthly installments
commencing on the Rent Commencement Date and on the first day of each calendar month
thereafier throughout the Term. It is the intent of the parties that Tenant's Condenser
Water
Equipment Charge is separate from and in addition to Minimum Rent.
shall
commencing on
shall
the Rent
pay Tenant's Sprinkler Charge, payable
Commencement Date and on
thereafier throughout the Term.
separate from and in addition to
F.
It is
in equal
monthly installments
the first day of each calendar
month
the intent ofthe parties that Tenant's Sprinkler Charge
Minimum
is
Rent.
If Landlord, either directly or indirectly
through its designee, elects to supply any
used upon or fumished to the Leased Premises, Tenant agrees to
pay a charge
based on Tenant's estimated usage as reflected on a monthly invoice provided
by Landlord or its
of the
utilities
designee; provided, however, Tenant's total charges for utilities provided
by Landlord shall be
comparable to the rates Tenant would be charged as if billed directly for the same
service by the
local utility company as a direct retail customer.
Section 7.02.
Except as
Discontinuance and Interruption ofService.
set forth herein, Landlord shall not be liable to
Tenant
in
damages or
otherwise for the quality, quantity, failure, unavailability or disruption
of any utility service and
the same shall not constitute a termination ofthis Lease, or an
actual or constructive eviction of
Tenant, or entitle Tenant to any abatement of Rent.
Notwithstanding anything t0 the contrary in this Lease, if utilities serving the
Leased Premises are disrupted due t0 the negligence or acts of Landlord, its
agents,
contractors, servants or employees, Landlord shall promptly restore the affected
utilities at
Landlord’s sole cost and expense. If the disrupted utilities are not restored
Landlord
by
within forty-eight (48) hours after the Landlord has knowledge of the
disruption, and
Tenant is unable t0 conduct its business in the Leased Premises due t0 the disruption
of
utility service, the Minimum Rent shall be abated during the period
commencing on the
expiration of the aforementioned forty-eight (48) hours and ending on the date
Tenant is
able t0 resume conducting its business. Landlord shall not be liable for
consequential
damages resulting from any disruption of utilitiw. In addition, a disruption of utility
service shall not constitute a termination of this Lease or a constructive
or actual eviction of
Tenant.
Section 7.03.
Landlord’s Right to Alter Utilities.
may at any time alter any utility, and related equipment, sewing the
Portion, provided such alteration does not materially interrupt service to the
Leased
Premises and does not unreasonably interfere with Tenant’s business operations within
the
Landlord
Commercial
Leased Premises.
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ARTICLE
VIII
INDEMNITY AND INSURANCE
Section 8.01.
Indemnig.
A.
defined
Tenant
shall indemnify,
defend and hold Landlord, the Village Association (as
and members, and their respective shareholders,
in the Declaration), its lessors, partners
partners,
members,
trustees, agents, representatives, directors, officers,
employees and
Mortgagee(s) (collectively, “Landlord’s lndemnitees”) harmless from and against all liabilities,
obligations. damages, judgments. penalties, claims, costs, charges and expenses,
including
reasonable architects’ and attomeys’ fees, which may be imposed upon, incurred
by, or asserted
against any of Landlord’s Indemnitees by a third party and arising, directly or
indirectly, out of or
connection with (i) Tenant’s breach 0f its obligations under this Lease,
(ii) the acts or
negligence of Tenant or any Person claiming by, through or under Tenant, or
the agents,
contractors, employees, servants or licensees ofany such Person,
in, on or about the Leased
Premises, the Building or the Village, or (iii) the use or occupancy
by Tenant, its agents,
in
contractors, employees, servants or licensees of the Leased Premises, the
Building or the Village.
shall not be obligated to indemnify Landlord’s Indemnitees against
loss, liability, damage,
Tenant
cost or expense arising out
ofa claim for which Tenant is released from liability pursuant to
Section 8.07 below, or a claim arising out ofthe willful misconduct or sole
negligent acts or
omissions of Landlord or its agents, employees or contractors.
B.
Landlord shall indemnify, defend and hold Tenant, its partners, officers,
shareholders, members, trustees, principals, agents, directors and employees
(collectively
“Tenant's lndemnitecs”) harmless from and against all
liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable architects’
and attorneys’ fees, which
may be imposed upon, incurred by, or asserted against any of the Tenant’s Indemnitees
by a third
party and arising, directly or indirectly, out ofor in connection with
(i) Landlord’s breach of its
obligations under the Lease, (ii) the acts or negligence of Landlord or
any person claiming by,
through or under Landlord, or the agents, contractors, servants, employees
and/or licensees of
any such person
in, on or about the Common Areas, and
(iii) the use ofthe Common Areas.
Landlord shall not be obligated to indemnify Tenant’s lndemnitees against
loss, liability, damage,
cost or expense arising out ofa claim for which Landlord is released
from liability pursuant to
Section 8.07 below, or a claim arising out ofthe willful misconduct or
sole negligent acts or
omissions ofTenant or its agents, employees or contractors.
Section 8.02.
Landlord Not Responsible for Acts of Others.
Landlord shall not be liable to Tenant, nor to those claiming through
Tenant, for any loss,
thefi, injury, liability or damage of. for or to Tenant’s business and/or
property, including but not
limited to any of Tenant’s vehicles or other personal
property situated in the
PCA, which may
result from: (a)
any
omission. fault or negligence of other tenants or licensees, their agents,
employees or contractors, or any other persons (including occupants of adjoining or
contiguous
act,
owners of adjacent or contiguous property, or the public),
(b) the breaking, bursting,
backup, stoppage or leaking of electrical or phone/intemet cables and wires, or
water, gas, sewer,
buildings,
HVAC 0r steam
water,
snow
pipes or ducts serving the Leased Premises, the
or ice being upon the Village or
coming
PCA and/or the
Village, (c)
Leased Premises or the PCA, and/or
(d) earthquake or other act ofGod. Tenant acknowledges that its use of the Leased Premises,
the
PCA and the Village is at its own risk.
Section 8.03.
into the
Tenant’s Insurance.
Commencing on
the
Term Commencement Date and
at all
times thereafier, Tenant shall
carry and maintain:
A.
Commercial General Liability Insurance (a non-deductible policy with ISO
occurrence form or equivalent) naming Tenant as the named insured and Landlord and
(at
Landlord’s request) Landlord’s mortgagee (and managing agent), ifany, Landlord’s
property
if any, and Federal Realty Investment Trust (“FRIT”), if FRIT is not the
Landlord under
this Lease, as additional insureds, providing an Additional Insured — Managers
or Lessors of
manager,
Premises Endorsement (#CG-ZO-l 1-01-96 or equivalent) protecting Tenant and the additional
insureds against liability for bodily injury, death and property damage with respect to
liability
arising out ofthe ownership, use, occupancy or maintenance ofthe Leased
Premises, the
PCA
and
all
areas appurtenant to either, with a
minimum combined
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Dollars ($2,000,000.00) and a general aggregate limit ofFour Million Dollars ($4,000,000.00).
If the policy also covers locations other than the Leased Premises, the
policy shall include a
provision to the effect that the aggregate limit of Four Million Dollars ($4,000,000.00) shall
at the Leased Premises and the PCA. These policy limits
may be obtained
apply separately
through any combination of primary and excess insurance. IfTenant sells, serves or distributes
in or on the Leased Premises, then such General Liability Insurance
shall
alcoholic beverages
include Liquor Legal Liability coverage at the
same minimum limits of liability as shown above.
serves or distributes food in or on the Leased Premises, then such General
Liability Insurance shall include products liability with a combined single limit ofTwo
Million
lfTenant
sells,
Dollars ($2,000,000.00) per occurrence and an aggregate limit of Two Million
Dollars
($2,000,000.00).
“All Risks” or "Special Causes of Loss Form”
B.
property insurance covering all of
Tenant‘s Property and Leasehold Improvements (as both are defined in
Section 9.05. below), and
those portions of the Leased Premises and PCA that Tenant is responsible to repair
pursuant to
Section 10.02. below, and written for at least the full replacement cost with a
deductible of not
more than Fifiy Thousand Dollars ($50,000.00); provided, however, that in the event that
Tenant
has a tangible net worth
shall be
no
at
or exceeding Ten Million and 00/100 Dollars ($1 0,000,000.00), there
limits or requirements with respect to the deductible herefor.
C.
Plate glass insurance covering
PCA
all plate glass in the Leased Premises and the
(ifapplicable). Tenant shall be and remain liable for the repair and restoration of
all such plate
glass.
Tenant may
D.
elect to self-insure for this coverage.
Comprehensive
boiler
and machinery coverage, including
electrical apparatus, if
applicable, with a commercially reasonable deductible.
E.
Business interruption, loss of income and extra expense insurance in
amounts
sufficient to pay for Tenant’s expenses and lost income for a
period of not less than twelve (12)
months.
F.
Employer’s liability insurance with a minimum of Five Hundred Thousand
Dollars ($500,000.00), and statutory worker’s compensation insurance
as required by the
jurisdiction in
which the Leased Premises
is
located.
G.
Business automobile liability insurance including the ownership, maintenance
and
operation ofthe automotive equipmenL owned, hired, and non-owned
coverage with a combined
single limit of not less than Two Million Dollars
($2,000,000.00) for bodily injury and property
damage.
Notwithstanding anything set forth above, all dollar limits specified in this Section
8.03.
from time to time, as reasonably necessary upon Notice from Landlord, to
shall be increased
effect economically equivalent insurance coverage, or coverage
deemed adequate
in light
ofthen
existing circumstances.
Section 8.04.
Tenant
Tenant’s Contractor‘s Insurance.
shall cause
any contractor performing work on the Leased Premises
carry and maintain, at no expense t0 Landlord:
(i)
employer’s
liability
to obtain,
insurance with a
minimum ofFive Hundred Thousand Dollars ($500,000.00) as required by thejurisdiction in
which the Commercial Portion is located. and worker’s compensation
insurance;
builder’s
(ii)
risk insurance with a deductible
no greater than Ten Thousand Dollars ($10,000.00), in the
amount of the fiJll replacement cost of Tenant’s Propeny and Leasehold Improvements;
(iii)
Commercial General Liability Insurance, including completed operations and contractual
liability
coverage, providing on an occurrence basis a
minimum combined single limit ofTwo Million
Dollars ($2,000,000.00) per occurrence (and Four Million Dollars ($4,000,000.00)
general
aggregate, if applicable), and if the policy also covers projects other than the Leased
Premises,
the policy shall include a provision to the effect that the aggregate limit shall
apply separately at
the Leased Premises; and (iv) business automobile liability insurance including the
ownership,
maintenance and operation of the automotive equipment, owned, hired, and non-owned coverage
with a combined single limit ofnot less than
Two Million
Dollars ($2,000,000.00) for bodily
and property damage. Ifthe contractor fails to acquire such insurance, Tenant shall
provide such insurance (except worker’s compensation insurance and employer’s
liability).
injury
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Wm.
Section 8.05.
Any company writing any insurance which Tenant is required to maintain or cause to be
maintained under Sections 8.03 and 8.04 as well as any other insurance pertaining to the Leased
Premises or the operation of Tenant’s business therein (all such insurance being referred to as
“Tenant’s Insurance”) shall at all times be licensed and qualified to do business
in the
jurisdiction in which the Leased Premises are located and shall have received an A-VIl
or better
by the latest edition ofA.M. Best’s Insurance Rating Service. All of Tenant’s Insurance
be carried under a blanket policy covering the Leased Premises and any other location of
Tenant, if (i) the coverage afforded Landlord and any designees of Landlord shall not be reduced
or otherwise adversely affected, and (ii) such blanket policy allocates to the properties
and
rating
may
liabilities to be insured under this Article VIII an amount not less than
the amount of insurance
required to be covered pursuant to this Article VIII, so that the proceeds of such insurance
shall
not be less than the proceeds that would be available if Tenant were insured under a
unitary
policy. Tenant’s
Commercial General
Liability policies shall
name Landlord and/or
its
designees
as additional insured, and Tenant’s property insurance policies shall name Landlord
and/or
designees as loss payee 0r additional insured (as the case may be) for permanent Leasehold
Improvements and betterments. All policies of Tenant’s Insurance
requiring the insurer(s) to endeavor to give to
all
shall contain
its
endorsements
additional insureds at least thirty (30) days’
advance Notice ofany reduction, cancellation, termination or non-renewal of said
insurance.
Tenant shall be solely responsible for payment of premiums for all of Tenant’s
Insurance.
Tenant
shall deliver to Landlord at least ten 10) days prior to the time Tenant’s
(
Insurance is first
required to be carried by Tenant, and upon renewals at least ten
(10) days prior to the expiration
ofthe term of any such insurance policy. a certificate of insurance of all policies
of Tenant’s
Insurance. The limits of Tenant’s Insurance shall not limit Tenant’s liability
under the Lease,
at
law, or in equity. All policies ofTenant’s Insurance shall be primary and
non-contributory with
respect to Landlord‘s liability arising out of the act or omission of
Tenant, its officers, agents,
contractors, employees, or. while upon the Leased Premises, invitees. If
Tenant fails to deposit a
cenificate of insurance with Landlord (which shows compliance with the
provisions 0f this
Article VIII) within seven (7) days afier Tenant’s receipt of Notice
from Landlord, Landlord may
acquire such insurance. and Tenant shall pay Landlord the amount ofthe
premium applicable
thereto within
five
(5) days following Notice
Section 8.06.
from Landlord.
Increase in Insurance Premiums.
Tenant shall not keep or do anything in the Leased Premises that will:
(i) cause an
increase in the rate of any insurance 0n the Village;
(ii) violate the terms of any insurance
coverage on the Village carried by Landlord or any other tenant;
(iii) prevent Landlord from
obtaining such policies of insurance acceptable to Landlord or
any Mortgagee ofthe Village; or
(iv) violate the rules, regulations or recommendations of Landlord’s
insurers, loss prevention
consultants, safety engineers, the National Fire Protection Association,
or any similar body
having jurisdiction over the
Premises. If Tenant does so, Tenant shall pay to Landlord
upon demand the amount of any increase in any such insurance premium. In
determining the
sted
cause of any increase
in insurance premiums, the schedule or rate ofthe
organization issuing the
insurance or rating procedures shall be conclusive evidence ofthe items
and charges which
comprise the insurance rates and premiums on such property.
Notwithstanding anything to the contrary in the foregoing, Landlord hereby
represents that the Permitted Use will not cause an increase in Landlord’s insurance
premiums. Landlord, however, has no knowledge of and makes no representations, actual
or implied, of Tenant’s actual use and operations within the Leased Premises.
In the event
Landlord’s insurance is increased as a result of Tenant’s use of the Leased
Premises,
Landlord shall give Tenant written notice of the cause of the increase and an opportunity
to cure.
Tenant
increase
is
have thirty (30) days to cure the cause of the increase, and
cured, Tenant shall have no obligation to pay such increase.
shall
Section 8.07.
if
such
Waiver of Right of Recoveg.
Except for the indemnification for Hazardous Substances as set forth in Section
17.17.,
neither Landlord nor Tenant shall be liable to the other party or to any insurance
company (by
way of subrogation
or otherwise) insuring such other party for loss or
damage to any building,
any resulting loss of income, or losses under worker’s
compensation laws or benefits. even though such loss or damage might have been occasioned
by
the negligence ofLandlord or Tenant, or their respective agents or employees;
provided,
structure or other tangible property, or
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however, the mutual release contained herein shall not apply to damage to property or loss of
income caused by the willful misconduct of such other party. This Section 8.07. shall not limit
or supersede the indemnification to third parties as provided in Section 8.01. The
provisions of
XV
this Section 8.07. shall
apply to any Transferee pursuant to Article
ofthis Lease, and the
Transferee shall expressly agree in writing to be bound by the provisions ofthis Section
8.07.
if such
(as
Transferee were Tenant hereunder) for the benefit 0f Landlord.
Section 8.08.
Landlord‘s Insurance.
Landlord shall maintain
(i) “all
risk” or “special causes of loss form”
property insurance
insuring the structural components of the buildings composing the
Village, to the extent of eighty
percent (80%) ofthe full replacement value of such buildings, and insuring the
Common Areas
ofthe Village, and (ii) Commercial General Liability Insurance (ISO form or
equivalent)
covering the Common Areas of the Village. Provided the insurance coverage
carried
by
Landlord pursuant to
Landlord’s insurance
(i)
above
may
be reduced or otherwise adversely affected, all of
be canied under a blanket policy covering the Village and any other
shall not
property owned, leased or operated by Landlord or its affiliates, provided the
insurance
requirements in this Lease are fulfilled and the insurance coverage is not
diminished
ARTICLE
in
any way.
IX
CONSTRUCTION AND ALTERATIONS
Section 9.01.
Condition of Leased Premises.
Except for any Landlord’s Work set fonh in Exhibit B, Tenant accepts
the Leased
Premises “AS IS”. with no representation or warranty
by Landlord as to the condition or
suitability of the Leased Premises or the Village for Tenant’s
purpose.
Notwithstanding anything to the contrary contained herein, Landlord shall
repair,
expense, any latent structural defects discovered by Tenant in the Leased
Premises
and which Landlord is notified of by Tenant in writing.
at
its
Section 9.02.
Tenant
Tenant Improvements.
shall
perform
all
Tenant’s
Work
in
accordance with
its
obligations set forth in
Exhibit B.
Section 9.03.
Alterations.
Afier completion of Tenant’s Work, Tenant
alterations, additions, renovations,
shall not
improvements or
make
or cause to be
made any
installations (independently or collectively,
“Alterations”) in or to the Leased Premises without Landlord‘s
prior written consent, which
consent shall not be unreasonably withheld provided that the same
are interior and do not impact
the Building structure or systems, except that Tenant
may make interior, non-structural, nonstorefront, non-mechanical, non-electrical and non-plumbing
Alterations costing less than Fifiy
Thousand Dollars ($50,000.00) per Lease Year. provided that the same
shall be made in
accordance with Tenant’s then-current interior décor and fixtures;
provided, however, that the
foregoing Fifty Thousand Dollar ($50,000.00) per Lease Year
limitation shall increase
by
Two Thousand and
00/100 Dollars ($2,000.00) on the first and each subsequent
anniversary
of the Rent Commencement Date through the end of the initial ten
(10) year Term. Tenant
shall provide Landlord “as built“ drawings (in the event that
the precipitating work required
construction documents or other drawings) after Tenant has completed
any such Alterations in
0r to the Leased Premises, as well as all permits, approvals and other
documents issued by any
governmental agency in connection with such work.
Section 9.04.
Work
Requirements.
work performed by Tenant, including Tenant’s Work as set forth in Exhibit B
and any
Alterations, shall be performed: (i) promptly and in a good and
workmanlike manner with firstAll
class materials;
(ii) by duly qualified or licensed persons; (iii) without interference
with, or
the operations of Landlord or other tenants or occupants ofthe
Village; (iv) without
harming the structure or diminishing the value ofthe Leased Premises or the
Village; and
in
disruption
to,
(v)
accordance with (a) plans and specifications approved in writing in advance
by Landlord, such
approval to be granted or withheld in Landlord’s sole and absolute discretion
except
as
otherwise be provided
in
Section 9.03. and/or Exhibit B, and (b)
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Requirements. Neither Landlord’s approval of Tenant’s Plans (as defined in Exhibit B), nor any
other inspections or approvals of the improvements to the Leased Premises or plans for
construction thereof. by Landlord’s employees, agents or inspecting engineers shall constitute a
warranty or representation as to the technical sufficiency, adequacy or safety 0f the plans,
any of the component parts, or any other physical condition or feature pertaining to the
improvements, it being acknowledged by Tenant that Landlord has made such approvals solely
structures,
as a landlord in determining and protecting the value of its property for internal purposes, and not
for construction-related matters nor for Legal Requirements. Upon completion of
any work,
Tenant agrees to cause a Notice of Completion to be recorded in the office ofthe Recorder ofthe
in which the Leased Premises (or the Building) is or are located in
accordance with
county
Section 3093 ofthe Civil
Section 9.05.
Code ofthe
State of California or any successor statute‘
Ownership of Improvements.
All present and fiJture Alterations and any construction work attached (as hereinafier
described) to the Leased Premises and/or the Village and made by or on behalf ofTenant or prior
HVAC system and pipes, conduits and mechanical
systems exclusively serving the Leased Premises (individually and collectively, “Leasehold
Improvements”) shall be Landlord’s property when installed or completed and, upon Tenant’s
tenants, including, but not limited to, the
vacation or abandonment 0f the Leased Premises, shall remain upon and be surrendered with
the
in good order, condition and repair, unless abandoned in writing
by Landlord, in
Leased Premises
which event Tenant assumes ownership ofthe same. “Attached”, as used in this Section 9.05.,
refers to more than merely nailed, screwed or bolted to the structure of the
Leased Premises, but
means attached in such a way so as to require significant effort and cost to be removed.
All movable goods, vehicles, inventory, office fumiture, equipment. trade fixtures
(including
rather
Signs) and other movable personal property belonging to 0r used by Tenant that are not attached
Leased Premises shall be Tenant’s property (individually and collectively, “Tenant’s
to the
Property”) and Tenant may remove same at any time, provided Tenant
(i) is not in violation of
any provision ofthis Lease, and (ii) repairs any damage to the Leased Premises or the Village
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caused by such removal.
Section 9.06.
Tenant
Landlord
shall
remove
may direct)
all
ofTenant’s Property (and any Leasehold Improvements as
Date or the termination of Tenant’s right to
prior lo the Termination
possession. In addition, Tenant shall fully and completely
PCA, and
remove any improvements to the
same to the condition that existed prior to the Term Commencement
any damage to the remaining Leasehold Improvements, the Leased
fully restore the
Date. Tenant shall repair
Premises, the PCA or any other portion of the Village caused by such removal. If Tenant
fails to
timely remove said items within fifteen (15) days after written notice from Landlord,
they
shall be considered abandoned and shall become the property of Landlord, or
Landlord
have
may
them removed and disposed ofat Tenant’s sole
Section 9.07.
cost.
Mechanic’s Liens.
No mechanic’s or other lien shall be allowed against the Village as a result ofTenant’s
improvements. Tenant shall use commercially reasonable efforts to give Landlord written
notice (i) not less than seven (7) days prior to commencement of
any work in, on or about the
Leased Premises that Tenant intends to commence such work, and (ii) within two
(2) days afier
the commencement ofany such work that such work has commenced. Landlord shall
have the
right to record and post notices of non-responsibility in or on the Leased Premises.
If any
mechanic’s or other lien is filed Village due to work performed or materials furnished
for the
benefit of Tenant, Tenant
shall cause the
same
to be discharged
of record or bonded to
Landlord’s satisfaction and provide Landlord with a copy ofthe release of lien within
twenty (20)
days afier such filing. IfTenant fails to discharge or bond any such lien, Landlord, in addition to
all other rights, may bond or pay ofi‘ said lien, and Tenant shall
pay Landlord all expenses
incurred thereby by Landlord, including reasonable anomey’s fees, on ten
( 10) days' demand.
Section 9.08.
A.
Changes
Exhibit
to Village.
A sets forth the general layout ofthe Village and shows the Building as of
the date of this Lease, and
is not and shall not be deemed Landlord’s representation
or agreement
any part ofthe Village is, will be, or will continue to be, configured as indicated
Landlord reserves the right to determine all tenancies in the Village, and Tenant does not
that all 0r
therein.
rely on, nor does Landlord represent, the tenancy
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B.
Landlord shall have the
right, at any time, to: (i) make alterations or additions t0,
or any part of, the Village, except the Leased Premises;
(ii) build other
improvements in or about the Village; and (iii) convey to others or withdraw portions ofthe
or demolish
all
Common Areas. No rights to any view or to light or air over any property, whether
belonging to Landlord or any other person, are granted to Tenant
by this Lease.
Village or
C.
If Landlord renovates or remodels the front exterior of the Leased
Premises or the
Building or updates signage criteria for the Building (including, without limitation,
adding
signage), Tenant shall:
the remodeling work;
(i)
(ii)
upon request of Landlord, remove its then existing Signs to facilitate
upon direction of Landlord, re-install Signs as appropriate under the
then-existing criteria and consistent with such exterior remodeling;
(iii)
replace Tenant’s
storefront if such replacements are part
cooperate with Landlord to
facilitate
of Landlord's renovation plans; and (iv) otherwise
such renovation and remodeling. Notwithstanding the
foregoing, Landlord
may not alter the size and location of Tenant’s storefront or
reconfigure the Leased Premises. Tenant consents to the performance of all work
deemed
appropriate by Landlord to accomplish any of the foregoing, and to
any inconvenience or
disruption caused thereby.
D.
Tenant acknowledges that Landlord may, in its sole and absolute discretion,
ownership of portions of the Village to third parties and (ii) establish one or
more
associations to own. operate, manage, maintain and/or administer various
portion(s) of the
(i)
transfer
Common Areas.
In connection therewith. Landlord may, in its sole and
absolute discretion,
delegate various of its rights and responsibilities under this Lease
to any of such associations
including, without limitation, any or
all
of the following: the
right to control,
manage, operate
Common Areas including promulgation ofrules and regulations that are
persons using the Common Areas including, without limitation,
Tenant, its agents,
and administer the
binding on
all
contractors,
employees and
invitees; the obligation t0 insure, maintain, repair
Common Areas together with the right to
include in Operating Costs
all
and equip the
costs and expenses
incurred therewith, subject to limitations on Operating Costs set
forth in Article VI; and the right
to administer all or
ponions ofthe Marketing Fund.
ARTICLE X
REPAIRS MAINTENANCE
Section 10.0].
AND LANDLORD‘S ACCESS
E&imelan—dlofl.
Subject to the terms ofthis Lease, including Section 10.02. and Articles
XI and XI], if
applicable, Landlord shall repair and maintain the
Common Areas and the following portions of
the Leased Premises (at no cost to Tenant unless specifically set
forth herein) in good order,
condition and repair: roof; exterior walls (excluding doors, windows,
and
portions (consisting only of the
any
slab, foundations and
glass); structural
members supporting
the roof); and
outside or within the Leased Premises that serve other premises in
with the Leased Premises but only to the extent that such lines are
not owned, operated
utility lines located
common
or
floor
managed by any
utility company or applicable governmental agency. If
any such repairs are
necessitated by Tenant’s breach of this Lease, or
act
or
by any
negligence of Tenant, its agents,
employees, assigns, concessionaires, contractors or invitees, Tenant shall
reimburse t0 Landlord
the reasonable cost incurred in completing such repairs within
five (5) days of demand therefor.
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shall, at its own expense, comply with all Legal Requirements
respecting all
matters relating to the Landlord’s maintenance and/or repair obligations
under this Section 10.01.
Landlord
Section 10.02.
A.
Throughout the Term Tenant shall maintain, repair and replace the non-structural
portions ofthc Leased Premises (including the storefront), any loading dock or
trash area
exclusively designated for Tenant’s use, the Leasehold Improvements and Tenant’s
Property in
good order, condition and repair, and shall not cause or permit the accumulation of
any garbage,
trash or waste in or around the Leased Premises, or permit
any damage or inj ury to the Leased
Premises or the Village. Tenant’s obligations shall include, without limitation,
repairing,
maintaining, and replacing items such as the following: Signs; floor coverings;
walls (other than
and wall coverings; ceilings; submeters exclusively serving the Leased
structural walls)
Premises;
the
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meters, pipes and conduits exclusively serving the Leased Premises;
fixtures;
system serving the Leased Premises; plumbing, electrical and other
utility
HVAC
mechanical
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systems exclusively sewing the Leased Premises; sprinkler and other fire protection equipment
exclusively serving the Leased Premises; the storefront(s); security grilles or similar enclosures;
locks and closing devices; window sashes, easements and frames; glass; doors and door frames.
Tenant agrees to maintain with a reputable contractor or Tenant’s trained employees a regular
service and maintenance program on the HVAC equipment and system serving the Leased
recommended by the HVAC manufacturer, a
copy of which shall be supplied to Landlord. Furthermore, Tenant shall remodel or refurbish the
Leased Premises, as reasonably necessary, at least once every five (5) years in accordance with
plans approved in advance by Landlord.
Premises, with routine inspections and servicing as
Tenant
B.
may
devices as
insurance
and maintain such fire extinguishers and other fire protection
be required by any agency havingjurisdiction over, or by the underwriters issuing
shall install
the Village. Tenant agrees to routine inspections of fire protection devices,
for,
including the sprinkler systems and
smoke detectors, by Landlord’s contractor. If any
governmental authority with jurisdiction over the Village requires the installation, modification,
or alteration ofthe sprinkler system, or other equipment,
by reason of Tenant’s use and
occupancy of the Leased Premises, or the location of any partitions, trade fixtures, or other
contents of the Leased Premises, then Tenant shall promptly install such sprinkler
system or
changes therein.
C.
respecting
10.02.,
and
all
and
Tenant shall comply with all Legal Requirements affecting the Leased Premises
matters relating to Tenant’s maintenance and repair obligations under this Section
the orders or recommendations of any insurance underwriters, safety engineers,
all
loss prevention consultants as
10.01
.,
Tenant
shall
perform
all
Landlord
may from
time to time consult. Subject to Section
Alterations to the Leased Premises required to
comply with all
Legal Requirements; provided, however, that Landlord shall perform the
requisite
Alterations to such areas of the Leased Premises that are Landlord’s obligation
to maintain
and
repair.
Section 10.03.
Inspections, Access
and Emergency Repairs by Landlord.
Upon
reasonable prior notice and upon using reasonable efforts to not materially
adversely affect Tenant's business within the Leased Premises, Landlord or its designee
may
enter all pans ofthe Leased Premises during the Store Hours to inspect the
same, and
make
necessary repairs or alterations to utilities and venting ducts. In the event of an
emergency,
Landlord may enter the Leased Premises at any time and make such inspection
and repairs as
Landlord deems necessary, at the risk and for the account ofTenant. Landlord
may enter upon
the Leased Premises for purposes of showing the Leased Premises
to Mortgagees or prospective
Mortgagees at any time during the Term and to prospective tenants during the last
six (6) months
of the Term.
ARTICLE XI
CASUALTY
Section
1
Tenant
to the
Fire or Other Casualg.
1.01.
prompt Notice to Landlord
Leased Premises or the Village.
Section
l l
A.
[f(i) either the
damaged
(ii)
in
case offire or other casualty (“Casualty”)
Right to Terminate.
.02.
Portion are
thereof; or
shall give
Building or the buildings (taken in the aggregate) in the Commercial
of more than fifiy percent (50%) ofthe cost of replacement
to the extent
last two Lease Years or in any Partial Lease Year at the end ofthe
Term
damaged to the extent of more than twenty-five percent (25%) ofthe
during the
the Leased Premises are
cost of replacement thereof; or
(iii) the Leased Premises are damaged to the extent of fifiy
percent (50%) or more of the cost of replacement thereof and such damage cannot be repaired
within one hundred fifiy (150) days from the date of such occurrence; then Landlord
may
terminate this Lease by notice to Tenant within one hundred fifly (150) days afier the
date ofthe
Casualty. If Landlord so terminates this Lease then the Termination Date shall be the date
set
forth in the notice to Tenant,
which date
shall not
be
less than thirty (30)
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days nor more than
ninety (90) days afler the giving of said notice. The "cost of replacement" shall be
determined by
the company or companies insuring Landlord against the Casualty,
or, iftherc shall be no such
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determination, by a qualified Person selected by Landlord to determine such "cost of
replacement."
Notwithstanding anything contained herein to the contrary, Landlord shall, within
any loss, damage or destruction to the Leased Premises, deliver to
Tenant an estimate, prepared by a reputable independent contractor selected by Landlord,
sixty (60) days after
setting forth such contractor’s estimate as t0 the reasonable time required to repair such
Casualty. If such estimated time period exceeds nine (9) months from the date of such
Casualty, Tenant
may elect to terminate this lease by notice to Landlord not later than
days following delivery of such estimate. If Tenant makes such election, this
Lease shall expire upon the thirtieth (30th) day after notice of such election is given
by
Tenant and Tenant shall vacate the Leased Premises and surrender the same to Landlord.
If Tenant fails to make such election or the estimated time period is within such nine
(9)
month period, then if Landlord fails to repair the Leased Premises (i) within the estimated
time period, if such period was greater than nine (9) months or (ii) within such nine
(9)
month period, if the estimated time period was nine (9) months or less, Tenant may elect to
terminate this Lease by notice to Landlord not later than thirty (30) days following the
expiration 0f such estimated time period. If Tenant makes such election, this
Lease shall
thirty (30)
expire upon the thirtieth (30th) day after notice of such election is given
by Tenant and
Tenant shall vacate the Leased Premises and surrender the same to Landlord.
Furthermore, Tenant shall have the right to terminate this Lease by giving Landlord
thirty
(30) days’ prior written notice thereof, in the event
(i) substantial damage to more than
fifty percent (50%) of the Leased Premises occurs in the last two (2) Lease Years, or
(ii) the
leases for fifty percent (50%) or more of the tenants in the Village are
terminated at any
time.
Landlord
shall not exercise any of its rights to terminate this Lease unless
the leases
of other tenants similarly afiected, excluding the leases for Major
Tenants, are also
terminated, if such other leases allow or permit Landlord to terminate the lease.
B.
Term
either
If during the last
(i)
two
(2)
Lease Years or
in
any
Partial
Lease Year
at the
end ofthe
the Leased Premises axe
damaged to the extent of twenty-five percent (25%) or
of replacement thereof, or (ii) more than fifiy percent (50%) ofthe Floor Area of
more of the cost
Commercial Portion (including
the
the Leased Premises) immediately before such Casualty is
rendered untenantable, Tenant may terminate this Lease
by giving Landlord sixty (60) days’ prior
Notice given within sixty (60) days afier the date ofthe Casualty. Notwithstanding
anything to
the contrary contained herein. in the event of a Casualty to the Leased
Premises, and provided the
Lease is not terminated pursuant to the provisions contained in this Article
XI, if Landlord fails
to
commence and
diligently pursue the restoration and/or repairs to the Leased Premises in
accordance with the provisions of Section 11.03 below within one hundred
eighty (l 80) days of
the date of such Casualty or complete
same within three hundred
sixty
five (365) days of the
date of Casualty, Tenant shall have the right to terminate this Lease upon
thirty (30) days’ prior
written Notice to Landlord, said Notice to be given within thirty
(30) days afier the expiration of
the aforesaid period. Ifthe Casualty shall render the Leased Premises
untenantable, in whole or
in part, all Rent shall abate proportionately during the period of such
untenantability, computed
on the basis of the
ratio which the amount of Floor Area of the Leased Premises rendered
untenantable bears to the total Floor Area of the Leased Premises. Such abatement
shall
terminate on the earlier of (i) thirty (30) days afier the date any such repair and restoration
is
substantially completed
by Landlord, or
(ii)
work
the date Tenant reopens for business in the portion
of the Leased Premises previously rendered untenantable. Except to the extent
specifically set
forth in this Section l 1.02, neither the Rent nor any other obligations
ofTenant under this Lease
shall be affected by any Casualty, and Tenant hereby specifically waives
all other rights it might
otherwise have under law or by statute, including, without limitation, California Civil
Code
Sections 1932 and 1933.
Section
l
1.03.
.
Subject to Landlord’s ability to obtain the necessary permits and the availability of
insurance proceeds under insurance required to be carried by Landlord hereunder,
and
either party’s right to terminate this Lease pursuant to the provisions ofthis Article
XI, Landlord
shall repair the Leased Premises (excluding Tenant’s Property and the Leasehold
Improvements
in the
Leased Premises, which
shall
be Tenant’s obligation to
repair, restore or replace) to a
substantially similar condition as existed prior to the Casualty; provided, Landlord shall
not be
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required to expend an amount in excess of the insurance proceeds received
by Landlord in
performing such repairs or reconstruction, provided Landlord shall carry the insurance
hereunder required.
Section 11.04.
Tenant
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promptly commence and diligently pursue to completion the redecorating
and refixturing of the Leased Premises, including repairing, restoring or replacing Tenant’s
Property and Leasehold Improvements, to a substantially similar condition as existed prior
to the
shall
Casualty. Tenant shall reopen for business in the Leased Premises as soon as practicable
afler
the occurrence of the Casualty.
ARTICLE
XII
MW.
CONDEMNATION
Section 12.0].
A.
shall
If more than
twenty-five percent (25%) ofthe Floor Area of the Leased Premises
be appropriated or taken under the power of eminent domain, or
conveyance shall be made
in anticipation or in lieu thereof (“Taking”), either
party may terminate this Lease as of the
efiective date of the Taking by giving Notice to the other party of such election
within thirty (30)
days prior to the date of such Taking.
B.
lf there
right to terminate the
is
a Taking
Lease
at the
ofa portion ofthe Leased Premises, Tenant shall have the
same time and in the manner provided in Section 12.01 .A.
if in
Tenant’s reasonable judgment the portion ofthe Leased
Premises remaining cannot be
reasonably utilized for the operation of Tenant’s business.
C.
Taking ofa portion ofthe Building and this Lease shall not be
.A., then (i) as of the effective date of the Taking, this
Lease
shall terminate only with respect to the portion ofthe
Leased Premises taken; (ii) afier the
effective date ofthe Taking, the Rent (except Percentage
Rent) shall be reduced by multiplying
If there is a
terminated pursuant to Section 12.0]
the
same by a
numerator ofwhich shall be the Floor Area taken and the denominator
be the Floor Area ofthe Building immediately prior to the
Taking; and (iii) as
soon as reasonably possible afier the effective date of the Taking,
Tenant, at its expense and
of which
fraction. the
shall
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to
the extent feasible, shall restore the remaining portion of
the Building to a complete unit of a
similar condition as existed prior to the Taking.
Section 12.02.
lfthere
a Taking of any portion of either the Building or the
Commercial Portion so as
to render, in Landlord’sjudgment, the remainder
unsuitable for use as a mixed-use commercial
is
development, Landlord shall have the right to terminate this Lease
upon thirty (30) days’ Notice
to Tenant. Provided Tenant is not then in violation
ofany provision of this Lease, Tenant shall
receive a proportionate refund from Landlord ofany Rent
Tenant paid in advance.
Section 12.03.
Condemnation Award.
All compensation awarded for a Taking of any part ofthe
Leased Premises (including the
Leasehold Improvements) or a Taking ofany other part of the Commercial
Portion shall belong
to Landlord. Tenant hereby assigns to Landlord all ofits right.
title and interest in any such
award. Tenant shall have the right to collect and pursue
any separate award as may be available
under local procedure for moving expenses, Tenant’s Property and loss
of goodwill, so long as
such award does not reduce the award otherwise belonging t0 Landlord
as aforesaid. Ifthe Lease
is terminated as a result of
any Taking ofthe Leased Premises and/or the Commercial Portion,
Tenant shall be entitled to make a claim for and recover from the condemning
authority the
unamortized cost of Tenant’s Work. over and above the dollar amount of the
Constmction
Allowance (if any), amortized on a straight line basis over the initial Term ofthis
Lease,
provided that Tenant has furnished Landlord with a list of Tenant’s Work and the
itemized cost
ofthose improvements within ninety (90) days after the date on which Tenant opens for business
fiom the Leased Premises. The rights contained in Article XI and this Article XII shall be
Tenant's sole and exclusive remedy in the event of a Casualty or Taking. Tenant
waives the
provisions ofSections 1265.130 and 1265.150 ofthe California Code ofCivil Procedure
and the
provisions ofany successor or other law of like import.
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ARTICLE
XIII
FNTENTIONALLY DELETED
ARTICLE XIV
SUBORDTNATION AND ATTORNMENT
Section 14.0 l.
Subordination.
Tenant’s rights under this Lease are subordinate to
underlying leases affecting
all
or any
pan ofthe
(i) all
Village, and
present and future ground or
any easement, license,
mortgage, deed oftrust, covenant. or other security instrument now or hereafier affecting the
Village (with any ground lease, mortgage, deed oftrust or other security instrument now
or
hereafier affecting the Village being collectively referred to as a “Mortgage" and the Person
0r
Persons having the benefit of the same being referred to as a “Mortgagee”). Tenant’s
(ii)
subordination provided
in this Section [4.0]. is self-operative and no further instrument
of
subordination shall be required. Notwithstanding the foregoing, Tenant shall, within
twenty (20)
days of request by Landlord, execute such further instruments or assurances as Landlord
may
reasonably
deem necessary
confirm
to evidence or
the subordination of this Lease to any
Mortgage. In addition, any Mortgagee may, at its option, unilaterally subordinate its
Mortgage to
this Lease. Tenant waives the provisions of any current or future
statute, rule or law which
may
give or purport to give Tenant any right or election to terminate or otherwise
adversely affect this
Lease and the obligations ofthe Tenant hereunder in the event of
any foreclosure proceeding or
sale.
Notwithstanding the subordination ofthis Lease to any Mortgage, the terms ofany such
shall not be deemed to alter the terms ofthis Lease as between Tenant
and Landlord,
Mortgage
its
successors and assigns.
Section 14.02.
Tenant
continue
in
Attomment.
without charge, attorn to any Successor Landlord and this Lease shall
accordance with its terms as a lease between Successor Landlord and Tenant,
shall,
provided, however, that Successor Landlord shall not be bound
by any advance payment of Rent
made by Tenant to Landlord except for Rent or Additional Rent applicable t0
the then-current month.
or Additional Rent
Section 14.03.
W.
Each of Landlord and Tenant. within twenty (20) days afier Notice from, and without
charge or cost to, the other, shall certify by written instrument to the other
or any other Person
designated by Landlord or Tenant: (i) that this Lease is in full force and effect
and, if modified,
stating the modification; (ii) the dates through which Rent has
been paid; (iii) whether Landlord
or Tenant has failed to perform any covenant, term or condition
under this Lease, and the nature
of Landlord’s or Tenant’s failure. if any; and (iv) such other relevant factual
information as
Landlord or Tenant
Section 14.04.
may reasonably
request.
Quiet Enjoment.
Landlord covenants that
it has full right, power and authority to enter
into this Lease and
upon performing all ofTenant’s obligations under this Lease and timely paying all
peaceably and quietly have, hold and enjoy the Leased Premises during the Term
that Tenant.
Rent. shall
without hindrance, ejection or molestation by any Person lawfixlly claiming
by, through or under
Landlord, subject, however, to the provisions of this Lease and all Mortgages, encumbrances,
easements, and matters of record to which this Lease is or may become subject.
ARTICLE XV
ASSIGNMENT AND SUBLETTING
Section 15.01.
Landlord’s Consent Reguircd.
A.
Tenant and any permitted Transferee, as hereinafter defined, shall not voluntarily
or involuntarily, by operation of law or otherwise: (i) transfer, assign, mortgage, encumber,
pledge, hypothecate, or assign
all
or any of
its
interest in this Lease; (ii) sublet or permit all or
part ofthe Leased Premises to be used
the outstanding or issue
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by others including concessionaires or licensees; (iii) sell
voting stock (or partnership shares or membership interests) so as to
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result in a
change
in the present control
of Tenant, subject to Tenant’s
l5.01 .E., provided, however, that this subparagraph
publicly
owned
corporation
whose stock
is
listed
(iii)
shall not
on a national
the Securities Exchange Act of 1934, as amended) or
is
rights
under Section
be applicable
securities
if Tenant is
exchange
(as
a
defined
in
traded actively in the over—the-counter
market; or (iv) sell, assign or otherwise transfer all or substantially all of Tenant's or
any
permitted Transferee's assets; without the prior written consent of Landlord, which consent
Landlord may not unreasonably withhold, which reasonableness is subject to the provisions set
forth in Section 15.01.D. All ofthe foregoing transactions shall be referred
to collectively or
singularly as a ”Transfer", and the Person to whom Tenant's interest is transferred
shall be
referred to as a "Transferee."
B.
Any Transfer which requires Landlord’s consent and occurs without
Landlord's consent shall not be binding upon Landlord, shall confer
no rights upon any third
Person. and shall, without notice or grace period of any kind, constitute an immediate
Default by
Tenant under this Lease. Landlord’s acceptance of Rent following
any Transfer shall not
constitute Landlord’s
consent to any such Transfer,
(ii) acceptance of the Transferee as a
of Tenant from the performance of any covenants herein, or (iv) waiver ofany
remedy of Landlord under this Lease, although Landlord shall credit amounts received against
Tenant’s Rent obligations. Landlord’s consent to
any one Transfer shall not waive the
requirement for consent to any other Transfer. No reference in this Lease to
assignees,
tenant,
(iii)
(i)
release
concessionaires, subtenants or licensees shall be deemed Landlord’s consent
to occupancy of the
Leased Premises by any such assignee, concessionaire, subtenant or licensee.
C.
Landlord's consent to any Transfer shall not operate as a waiver
of, or release of
Tenant from, Tenant's covenants and obligations hereunder; nor shall the collection
or acceptance
of Rent 0r other performance from any Transferee have such effect. Rather, Tenant shall
remain
fully and primarily liable and obligated under this Lease for the entire Term
in the event of any
Transfer, and in the event of a Transferee’s Default. Landlord
may pursue Tenant, the Transferee,
or both, without prior notice or demand to either.
D.
Without limitation as to other reasonable grounds for withholding consent,
the
it shall be reasonable under this Lease
and any applicable law for
Landlord to deny consent to any proposed Transfer ifany of the following
conditions are
parties hereby agree that
applicable:
Tenant is in Default beyond any applicable notice and cure periods
(i)
under any terms or provisions of this Lease;
(ii)
The tangible
immediately prior to the Transfer
is
net worth (excluding goodwill) ofthe Transferee
less than
Twenty Million and
00/] 00 Dollars
($0,000,000.00);
The inability ofTransferee to continue to operate the business
Leased Premises under the same Tenant Trade Name, and for the same
(iii)
conducted
in the
Permitted Use, as set forth
in this
Lease;
Transferee does not possess qualifications for Tenant's business
ofTenant and does not own and/or does not operate at least five
(5) other locations similar to that authorized in the Permitted Use for the Leased
Premises;
(iv)
substantially equivalent to those
(v)
The proposed Transfer
is
of less than the
entire
Leased Premises;
or
The proposed Transfer constitutes a mortgage, encumbrance,
(vi)
pledge, hypothecation or assignment as security for performance ofTenant’s
obligations to the
Transferee of all or any portion of Tenant’s interest in this Lease.
E.
Notwithstanding the foregoing, the following conditions shall apply to any
proposed Transfer:
No covenant, condition, or obligation imposed upon Tenant by this
remedy, or benefit afiorded Landlord by this Lease shall be impaired or
diminished as a result of such Transfer;
(i)
Lease and no
right,
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Tenant
Landlord any and all consideration paid
by Tenant to the Transferee of Tenant's leasehold interest
or any and all subrentals payable by subtenants which are in excess ofthe Minimum Rent
provided herein (computed on a square footage basis);
(ii)
shall assign to
directly or indirectly for the assignment
Tenant to which the Leased Premises were initially leased shall
(iii)
continue to remain liable under this Lease for the performance of all terms, including. but not
limited to,
payment 0f Rent due under
(iv)
and reasonably acceptable
to
this Lease;
Transferee must expressly assume in a written instrument delivered
all the obligations ofTenant under the Lease;
Landlord
Landlord shall furnish the appropriate documentation in connection
(v)
with any such Transfer and be entitled to a reasonable administrative fee therefor, as set
forth in
Section 17.03; and
At least thirty (30) days prior to the effective date of such proposed
(vi)
Transfer, Landlord shall receive the following information in connection with such Transfer:
the
name of the proposed Transferee, a copy of the financial statement of the proposed Transferee
and any guarantor, information regarding the proposed Transferee's business history and
experience. and the proposed Transferee's business plan and projections for the Leased
Premises.
Landlord shall approve or disapprove of such proposed Transfer within
thirty (30) days
following receipt of Tenant's written notice of its intent to Transfer the Lease
together with the
required information set forth above. Notwithstanding anything to the
contrary in this Lease, if
Tenant or any proposed Transferee claims that Landlord has unreasonably withheld
or delayed its
consent under this Section 15.0]. or otherwise has breached or acted unreasonably
under this
XV, their sole remedies shall be a declaratoryjudgment and an injunction for the relief
Article
sought without any monetary damages, and Tenant hereby waives all other
remedies, including,
without limitation, any right at law or equity to terminate this Lease, on its own behalf
and, to the
extent permitted under all applicable laws, on behalf ofthe proposed Transferee.
F.
Notwithstanding the foregoing, if Tenant desires to Transfer all or part ofthe
Leased Premises in a transaction where Landlord's consent is required under the
terms ofthis
Article
XV. Landlord
shall have the right t0 recapture the Leased Premises and terminate
the
Lease by giving written notice of such termination to Tenant within thirty
(30) days afier
Landlord receives Tenant's notice of its intent to Transfer, together with the required
information
as set forth above. If Landlord gives Tenant such a termination notice
within such thirty (30) day
period, then this Lease shall terminate effective as ofthe ninetieth
(90th) day afier Landlord's
termination notice is received by Tenant. Notwithstanding the foregoing, in the
event
Landlord delivers
to Tenant a notice of termination, Tenant may rescind its notice
of its
intent to Transfer by providing Landlord with notice of its intention to
rescind within
thirty (30) days after Tenant’s receipt of Landlord’s notice of termination.
If Tenant so
rescinds
its intent to Transfer, then Landlord’s notice 0f
termination shall be void and of
no force and effect and this Lease shall continue in full force and effect as if Tenant
did not
provide Landlord with notice of its intent to Transfer. Furthermore, if the
Lease is
terminated as provided herein, Tenant shall pay to Landlord an amount equal
to the unamortized
portion ofthe Construction Allowance, ifany. Landlord agrees that such amount
shall be
determined by amortizing the Construction Allowance on a straight line basis over the
initial
Term ofthe Lease. Tenant shall pay the unamortized portion of the Construction Allowance
to
Landlord within thirty (30) days of receipt of Landlord's termination notice. The provisions of
paragraph shall survive the termination of this Lease. If Landlord does not exercise
such
proposed Transferee shall nonetheless be required to meet
the conditions in Sections 15.01.D. and 15.0] .E. above.
this
right to terminate this Lease, Tenant's
G.
Notwithstanding the foregoing, provided Tenant shall not be in violation of
this Lease beyond any applicable notice and cure periods, Tenant
may,
without Landlord’s prior consent, assign the Lease to any entity which is and
remains
throughout the Term an affiliate of Tenant (“affiliate” moaning a Person which
either
controls, is controlled by, or is in common control with, Tenant), or to
any subsidiary of
any affiliate of Tenant (subject to the following qualifications, a “Permitted Transferee”),
provided (i) Tenant and any guarantor shall remain liable for all obligations
under the
Lease throughout the Term of the Lease, (ii) the proposed Transferee expressly assumes all
any provision of
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the obligations of Tenant under the Lease, and (iii) Landlord is given thirty (30) days’ prior
written Notice of Tenant’s intent to assign the Lease under this Section 15.01.G., together
with sufficient documentation which verifies that all of the requirements set forth herein
have been fulfilled and the conditions have been met.
H. Notwithstanding anything to the contrary contained herein, provided Tenant
be in Default under the Lease beyond applicable notice and cure periods, Tenant
shall have the right, without Landlord’s prior written consent, t0 assign the Lease
(or to
sell or transfer Tenant’s stock) in connection with a merger, consolidation, corporate
shall not
reorganization (other than pursuant to the bankruptcy laws), sale of corporate assets or
sale or other transfer of stock, provided however, that said assignment shall be subject
only
to the following express conditions and specifically not subject to Sections 15.01.E.
or
15.01.F.:
concurrently with any assignment of the Lease or transfer of stock, the
assignee or transferee, as the case may be, must also acquire the operation and control 0f
seventy-five percent (75%) of Tenant’s other locations in the United States operating under
i.
Trade Name indicated in Section 1.01 of the Lease and all of said locations in
the State of California (or any other similar stores operating under the same or similar
trade name as the Leased Premises is being operated under), whether then owned
by
Tenant or any of its affiliatw (i.e., affiliates meaning corporations, partnerships or limited
liability companies which either control Tenant, are controlled
by Tenant, or are in
the Tenant
common
control with Tenant);
such assignee must have a tangible net worth (excluding goodwill) of at
assignment;
ii.
least Fifteen Million Dollars ($15,000,000.00) after the
iii.
from continuing
iv.
delivered to
no such assignment shall be deemed to release Tenant or any guarantor
throughout the Term of the Lease;
liability
Tenant’s assignee must expressly assume in a written instrument
and reasonably acceptable by Landlord all the obligations of Tenant under the
Lease; and
Tenant must provide notice and a representation that the above
v.
conditions are met to Landlord
thirty
(30)
days before the effective date 0f such
assignment, sale, or transfer.
ARTICLE XVI
DEFAULT AND REMEDIES
Section 16.0].
Default.
Each of the following events
shall constitute a default ("Default") by Tenant under this
Tenant’s
failure to pay, or make available as required by this Lease,
(i)
any Rent (or any
installment thereof) within five (5) days after Tenant receives notice from Landlord
that
the same is past due and payable, however, if Landlord gives notice twice within
any twelve
(12) month period, then thereafter Tenant shall be in Default ifit fails to pay any Rent
within five (5) days after same is due and payable without the necessity of further
notice; or
(ii) Tenant’s failure to submit or resubmit any plans, specifications or other
construction
Lease:
drawings for Tenant’s
same
Work
within the time period set forth in Exhibit B, provided that the
become a default unless Tenant’s failure shall continue for two (2) business
days following Notice thereof from Landlord; (iii) Tenant’s failure to open as required under
shall not
this Lease, or its vacating or
abandoning of, or ceasing to continuously operate from, the Leased
Premises; or (iv) Tenant’s breach or failure to observe or perform any term, condition or
covenant of this Lease (other than those set forth in subsections (i) through (iii) above, which
constitute Defaults not subject to the thirty (30)
subsection
(iv)),
and such breach or
day notice requirement as outlined
failure is not cured within thirty (30)
in this
days afier Tenant’s
receipt or refusal of such Notice fiom Landlord, unless such condition cannot reasonably
be
cured within such thirty (30) days, in which case Tenant must commence such cure within said
thirty (30) days and diligently pursue said cure to its completion, but in
any event no longer than
an additional thirty (30) days to cure shall be provided without the express approval of
Landlord,
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which approval may be withheld
in Landlord’s sole and absolute discretion (provided,
however,
breach or failure creates a hazard, public nuisance or dangerous situation, the
aggregate
cure period shall be reduced to forty-eight (48) hours afier Landlord’s
Notice). Any Notice given
pursuant to this Section shall be in lieu of, and not in addition to,
any Notice required under
Section 1161, ct seg.. ofthe California Code of Civil Procedure.
if such
Section 16.02.
Remedies and Damages.
A.
If a Default occurs, Landlord, without any Notice or demand
whatsoever, shall
the rights and remedies provided in this Section 16.02., in addition
to all other rights and
remedies available under this Lease or provided at law or in equity, which rights
have
all
may be
exercised cumulatively.
B.
Landlord may, upon Notice to Tenant, terminate this Lease and all rights
of
Tenant hereunder, in which event Tenant shall immediately surrender the
Leased Premises to
Landlord. If Landlord elects to so terminate this Lease, Landlord
may recover fiom Tenant the
following:
earned
at the
The worth at the time ofaward ofany unpaid rent which had been
(i)
time ofsuch termination; plus
(ii)
The worth at the time of award ofthe amount by which the unpaid
which would have been earned afier termination until the time ofaward
exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided;
plus
rent
The worth at the time of award ofthe amount by which the unpaid
of the Term afier the time of award exceeds the amount of such rental
loss
Tenant proves could have been reasonably avoided; plus
(iii)
rent for the balance
that
(iv)
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 ofthings would be likely to result therefrom,
specifically including,
but not limited to, brokerage commissions and advertising
expenses incurred, expenses
of
remodeling the Leased Premises or any portion thereof for a new
tenant, whether for the same or
a different use, and any special concessions made to obtain a new
tenant; and
(v)
ofthe foregoing as
may
At Landlord’s election, such other amounts in addition to or
be permitted from time to time by applicable law.
in lieu
The term
“rent” as used in this Section
16.02. shall be deemed to be and to mean all sums
of every nature required to be paid by Tenant pursuant to the terms
of this Lease, whether to
Landlord or to others. As used in Sections 16.02.B.(i) and
16.02.B.(ii) above, the "worth at the
time of award" is computed by allowing interest at the Interest
rate. As used in Section
l6.02.B.(iii) above, the
“worth
at the
time ofaward"
the discount rate of the Federal Reserve
percent ( 1%).
is
computed by discounting such amount
at the time of award plus one
at
Bank of San Francisco
C.
Landlord shall have the remedy described in California Civil Code
Section
195 l .4. Accordingly, if Landlord does not elect to terminate this
Lease on account of any
Default by Tenant, Landlord may, fiom time to time, without
terminating this Lease, enforce all
of its rights and remedies under this Lease, including the right
to recover all rent as it becomes
due. Landlord and Tenant agree that the limitations on assignment
and
Article
XV
subletting set forth in
Lease are reasonable. Acts ofmaintenance or preservation,
efforts to rclet the
Leased Premises, or the appointment of a receiver to protect Landlord's
interest under this Lease
shall not constitute a termination of Tenant's right to
possession.
in this
D.
Landlord shall at all times have the rights and remedies (which shall
be
cumulative with each other and cumulative and in addition to those rights
and remedies available
under Sections 16.02.A. and 16.02.B., above, or any law or other
provision ofthis Lease),
without prior demand or notice except as required
by applicable law, to seek any declaratory,
injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a
violation or breach ofany provision hereof.
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Notwithstanding anything to the contrary contained herein, upon default by Tenant
and a subsequent eviction by Landlord, Landlord agrees to use reasonable efforts to relet
the Leased Premises for a term or terms which may, at Landlord’s option, be less than 0r
exceed the balance of the Term of the Lease. Landlord does not necessarily agree to rent
the Leased Premises at its then fair market value in the event it enters into a new lease
agreement. The foregoing, however, shall in no way obligate Landlord to lease the Leased
Premises in any manner which is not in keeping with the type and caliber of tenants at the
Village,
nor
shall the
same obligate Landlord
to relet the
Leased Premises
in
preference to
other vacant space therein.
Landlord may also perform, 0n behalfand at the expense ofTenant, any
obligation of Tenant under this Lease which Tenant fails to perform, the cost of which (together
E.
with an administrative fee oftwenty percent (20%) of such cost to cover Landlord's overhead in
connection therewith) Tenant shall pay to Landlord within five (5) days of demand therefor. In
performing any obligations ofTenant, Landlord shall incur n0 liability for any loss or damage
that may accrue to Tenant, the Leased Premises or Tenant's Property
by reason thereof, except if
caused by Landlord's willful and malicious
shall not constitute a release or
Section 16.03.
act. Landlord’s performance of any such obligation
waiver of any ofTenant's obligations under this Lease.
Remedies Cumulative.
No reference to any specific
right or remedy in this Lease shall preclude Landlord fi'om
exercising any other right, from having any other remedy, or from maintaining
any action to
which it may otherwise be entitled under this Lease, at law or in equity.
Section 16.04.
Waiver.
A.
No Waiver of Lease Provisions or Breach Thereof. Landlord shall not be deemed
have waived any provision of this Lease, or the breach of any such provision, unless
specifically waived by Landlord in a writing executed by an authorized officer of
Landlord. No
waiver of a breach shall be deemed to be a waiver of any subsequent breach ofthe same
to
provision, or ofthe provision
itself,
or of any other provision.
B.
Waiver of Right of Redemption. Tenant hereby expressly waives any and all
of redemption and any and all rights to relief from forfeiture which would otherwise be
granted or available to Tenant under any present or future statutes, rules or case law.
rights
C.
WAIVER OF TRIAL BY JURY. IN ANY ACTION OR PROCEEDING
ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT T0
(I) THE
JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF
CALIFORNIA, (II) SERVICE OF PROCESS BY ANY NIEANS AUTHORIZED BY
CALIFORNIA LAW, AND (III) IN THE INTEREST OF SAVING TIME AND
EXPENSE. TRIAL WITHOUT A JURY IN ANY ACTION, PROCEEDING 0R
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR THEIR SUCCESSORS [N RESPECT OF ANY MATTER ARISING
OUT OF OR 1N CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT, TENANT'S USE 0R OCCUPANCY OF THE LEASED
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, 0R ANY
EMERGENCY 0R STATUTORY REMEDY. IF LANDLORD COMMENCES ANY
SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF MINIMUM RENT
OR ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY
COUNTERCLAIM OF ANY NATURE OR DESCRIPTION (UNLESS SUCH
COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING 0R
ACTION, BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.
D.
Waiver of Tenant's Right to Repair 0r Vacate. Notwithstanding anything
contrary contained in this Lease, Tenant waives the right to
make
under Sections 1941 and 1942 of the California Civil Code and
to the
repairs at Landlord's expense
all
other laws
now
or hereafter in
effect.
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ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.01.
Notices.
Any demand,
request, approval, consent or notice (singularly
given by one party to the other shall be
addresses as set forth
in
in writing
and collectively, “Notice”)
and addressed to the parties at their respective
Section 1.01. and served by (i) nationally recognized overnight courier
UPS) or (ii) registered 0r certified mail return receipt requested. The
(such as Federal Express or
date the Notice
is
received shall be the date of service of Notice or,
date of service ofNotice shall be either
or
(ii)
may,
five
at
(5) business
(i)
the next business day
if
delivery
when
is
refused, then the
sent by overnight courier,
days afler mailing when sent by registered or certified mail. Either party
its Notice address by giving the other party Notice, in accordance with
any time. change
the above, stating the change and setting forth the
new address. If Tenant is notified of a
Mortgagee, no Notice sent by Tenant to Landlord thereafter shall be effective until a copy
sent to such Mortgagee.
Section 17.02.
is
also
Recording.
Neither this Lease nor a
memorandum
thereof shall be recorded without Landlord’s prior
written consent.
Section 17.03.
Interest
and Administrative Costs.
A.
If(i) Tenant fails to make any payment under this Lease when due, or (ii)
Landlord incurs any costs or expenses in performing any obligation ofTenant or as a result of
Tenant’s Default under this Lease, then Tenant shall
pay, upon demand, any such payment under
(i) above and any such costs and/or expenses under (ii) above plus Interest from the date such
payment was due or from the date Landlord incurs such costs or expenses relating to the
performance of any such obligation or Tenant‘s Default.
B.
If Tenant requests Landlord to review and/or execute
any documents in
connection with this Lease, Tenant shall pay to Landlord, upon demand, as an administrative
fee
for such review and/or execution, all costs and expenses, including reasonable attomeys’
fees
(including the cost oftime expended by in-house counsel) incurred
by Landlord, with a
maximum
fee of One
Thousand Five Hundred Dollars
Section 17.04.
($1 ,500.00).
Legal Expenses.
If Landlord or Tenant institutes any suit against the other in connection with
the
enforcement oftheir respective rights under this Lease, the violation of any term ofthis
Lease,
the declaration oftheir rights hereunder, or the protection ofLandlord’s or Tenant’s
interests
under this Lease, the non-prevailing party shall reimburse the prevailing party within five
(5)
days of demand for
its
reasonable expenses incurred as a result thereof including court costs and
reasonable attorneys’ fees, even if Tenant pays past due Rent prior to the rendering of
any
judgment.
Section 17.05.
Successors and Assiggs.
This Lease and the covenants and conditions herein contained shall inure to the benefit of
and be binding upon Landlord and Tenant, and their respective permitted successors and assigns.
Upon any sale or other transfer by Landlord of its interest in the Leased Premises, Landlord shall
be relieved of any obligations under this Lease accruing subsequent to such sale or other transfer.
Section 17.06.
Limitation
No shareholder, member,
on Right of Recoveg Against Landlord.
trustee, partner, director, officer,
agent of Landlord shall be personally liable
employee, representative or
of any covenant, condition or provision of
this Lease. If Landlord breaches or defaults in any of its obligations in this
Lease, Tenant shall
look solely to Landlord’s equity in the Commercial Portion and/or the land upon which the
in respect
Village is located, including the rental and sales proceeds therefrom, for satisfaction of
Tenant's remedies. 1n no event shall Landlord be responsible for consequential damages
(e.g.,
lost profits), punitive damagm or any damages other than direct, actual and compensatory
damages incurred by Tenant. The limitation of this section shall not apply to or limit any
injunctive or other equitable, declaratory or other forms of relief to which Tenant
may be
entitled (notwithstanding that such actions are in pursuance in nature).
D
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Section 17.07.
Security Deposit.
Tenant
shall deposit with Landlord within fifieen (l S) days following the full execution
and delivery of this Lease, for Landlord’s general account, the Security Deposit as security for
the performance of Tenant’s obligations under this Lease. Landlord may use, apply on Tenant’s
behalf or retain (without
liability for interest) during the Term all or any part of the Security
Deposit to the extent required for the payment of any Rent which may be owed hereunder, or for
any sum which Landlord expends to cure any Tenant Default. [f Landlord applies any or all of
the Security Deposit, Tenant shall restore the
amount so applied upon demand. Landlord’s use,
deemed a limitation on Landlord’s
application 0r retention of the Security Deposit shall not be
recovery
in
any
case, or Landlord’s
exercising any other right or
waiver of any Default, nor
remedy
for a Default
by Tenant.
shall
it
prevent Landlord from
If Tenant
has complied with
all
the
terms, covenants, agreements, and conditions of this Lease. the Security Deposit (less
any
amount applied as herein provided) shall be returned to Tenant with interest (equal to the
interest paid
by a federally insured bank selected by Landlord, for savings accounts) within
days afier the Termination Date and afier surrender of possession of the Leased
Premises to Landlord in accordance with the terms of this Lease. Tenant hereby waives the
provisions of Section 1950.7 ofthe California Civil Code, or any successor statute.
thirty (30)
Section 17.08.
Entire Agreement;
No
Representations; Modification.
This Lease is the final expression of the parties’ agreement, incorporating all prior
negotiations, considerations and representations between the parties (oral or
written). No course
of prior dealings between the parties or their officers, employees, agents or affiliates shall be
relevant or admissible to supplement, explain or vary any ofthe terms of this Lease.
No
representations, understandings, agreements, warranties or promises with respect to
the Leased
Premises or the Village ofwhich they are a part, or with respect to past, present or future
tenancies, rents, expenses, operations, or any other matter, have been
made or relied upon in the
making of this Lease, other than those specifically set forth herein. This Lease may only be
modified, or a term thereof waived, by a writing signed by an authorized officer of Landlord and
Tenant expressly setting
Section 17.09.
If any
forth said
modification or waiver.
Severabilig'.
Lease term or provision, or
its
application to any Person or circumstance, shall be
invalid or unenforceable, the remainder ofthis Lease, or the application
of such term or provision
to Persons or circumstances other than those as t0 which it is held invalid
or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall be valid and
Section 17.10.
lf two or
be enforced
WM.
to the fullest extent permitted
by law.
more Persons
shall sign this Lease as Tenant, the liability ofeach such Person to
pay the Rent and perform all other obligations hereunder shall be deemed to be joint and several,
and all Notices, payments and agreements given or made
by, with or to any one of such Persons
shall be
deemed
have been given or made by, with or to all of them. In like manner, ifTenant
a partnership or other legal entity, the partners or members ofwhich are,
by virtue of any
applicable law, rule, or regulation, subject to personal liability, the liability ofeach
such partner
or member under this Lease shall be joint and several and each such partner
or member shall be
to
is
fillly obligated hereunder and bound hereby as
signed this Lease.
Section 17.1
l.
if each
such partner or
member had
personally
Broker’s Commission.
Except for Johnson Hoke Ltd., whom Landlord agrm to pay a commission under
the terms of a separate agreement, Landlord and Tenant each warrants and represents
to the
other that no broker, finder or agent has acted for or on its behalf in connection with
the
negotiation, execution or procurement ofthis Lease. Landlord
indemnify and hold the other hamless from and against
arising, directly or indirectly, out
of or
and Tenant each agrees
all liabilities,
obligations and
to
damages
connection with a claim from a broker, finder or agent
with respect to this Lease or the negotiation thereof, including costs and attomeys’ fees
incurred
in the defense of any claim made by a broker alleging to have performed
services on behalf
in
of the
indemnifying party.
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Section l7. 12.
Irrevocable Offer,
No
Option, Countemart.
Landlord’s submission of this Lease to Tenant for examination shall not constitute
an
offer to lease or a reservation of or option for the Leased Premises. Tenant’s
execution ofthis
Lease shall be deemed an offer by Tenant, but this Lease shall become effective only upon
execution thereof by both parties and delivery thereofto Tenant or Tenant’s attorney. This
Lease
may be executed in any number of counterparts, each of which shall for all purposes be
deemed
an original and
of which together shall constitute one and the same instrument, and shall be
effective upon execution of one or more such counterparts
by each of the parties hereto and
all
delivery thereof to the other parties hereto. Moreover, signatures received
by facsimile or
portable document format shall be deemed effective for the purposes of
this Lease.
Section 17.13.
Inabilig to Perform.
Except for the payment 0f monetary obligations, if Landlord or Tenant is
delayed or
prevented from performing any of its obligations under this Lease
by reason of acts of
God,
any similar cause whatsoever beyond their control (which shall not be
deemed to include financial inability), the period of such delay or such prevention
shall be
deemed added to the time herein provided for the performance ofany such obligation
by
strike, labor troubles, or
Landlord or Tenant.
Section 17. l4.
Survival.
Occurrence of the Termination Date
shall not relieve Tenant from its obligations or
indemnities accruing prior to the expiration 0fthe Term. All such
obligations shall survive
termination of the Lease.
m.
Section 17.15.
Tenant hereby covenant(s) and warrant(s) that Tenant is duly formed,
qualified to do
business and in good standing in the state in which the Village
is located, and
the individual(s)
executing this Lease on behalf of Tenant is/are duly authorized
by Tenant to execute and deliver
this Lease on behalf ofTenant. Tenant shall
remain qualified to do business and
in
good
standing in said state throughout the Term.
Section 17.16.
Construction ofCertain Terms.
The term “including”
shall
mean
in all cases “including, without limitation.”
Wherever
required to perform any act hereunder, such party shall do so at
its sole cost and
expense, unless expressly provided otherwise.
either party
is
Section 17.17.
No
Hazardous Substances.
Hazardous Substances
(as hereafier
defined)
shall be used, generated, stored, treated,
released. disposed or otherwise
Premises, the
PCA
or the
managed by or on behalf ofTenant or any invitee at the Leased
Village with the exception of minor amounts of Hazardous
Substances
customarily and lawfully used
conjunction with the Permitted Use. Tenant shall immediately
upon discovery of any Hazardous Substance release afi‘ecting the
Leased
Premises or the PCA and. at its sole expense and at Landlord’s
option, remediate to Landlord’s
satisfaction or reimburse Landlord’s costs 0f investigation
or remediation of any release of
Hazardous Substances arising from any act or omission of Tenant, its
employees, agents,
in
notify Landlord
contractors or invitees. Tenant shall cooperate with Landlord
and provide access to the Leased
Premises from time to time for inspections and assessments
ofenvironmental conditions and
shall
remove
all Hazardous Substances from the Leased
Premises or the PCA upon expiration or
termination of the Lease. Tenant agrees to indemnify, defend and
hold Landlord and Landlord’s
Indemnitees harmless from and against all liabilities. obligations,
damages,judgments, penalties,
claims, costs. charges and expenses. including reasonable architects’
and attomeys’ fees, which
may be imposed upon, incurred by or asserted against Landlord or Landlord’s Indemnitces
third party
and arising, directly or
by a
indirectly, out
of 0r
in
connection with the presence of
Hazardous Substances
at or afi‘ecting the Village due to any act of Tenant,
its agents, servants,
employees 0r contractors. As used herein, “Hazardous Substances” shall mean
(i) hazardous or
toxic substances, wastes, materials, pollutants and contaminants which
are included in or
regulated by any federal, state or local law, regulation, rule or ordinance,
including CERCLA,
Superfund Amendments and Reauthorization Act of I986, the Resource Conservation
and
Recovery Act, and the Toxic Substances Control Act, as any ofthe foregoing
may be amended
fiom
time to time,
(iv) all
petroleum products,
(iii) halogenated and non-halogenated solvents, and
other regulated chemicals, materials and solutions which, alone or
in combination with
(ii)
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other substances, are potentially harmful to the environment, public health or safety or natural
resources.
Landlord, at its own cost and without undue delay, shall provide for the
remediation and removal from the Leased Premises Pre-Existing Contamination
(i.e., any
contamination present in the Leased Premises in violation of Legal Requirements prior to
the Term Commencement Date), provided that Tenant shall notify Landlord in writing
within ten (10) days 0f the date that Tenant first becomes aware of any such condition,
and
provided further that any actual violation of any Environmental Law giving rise to such
proceeding shall not be the result of any act or omission on the part of Tenant.
As of the date possession of the Leased Premises is delivered to Tenant, to the best of
Landlord’s knowledge, without independent inquiry, the Leased Premises shall
not contain
any Hazardous Substances
in violation of applicable laws.
OFAC Certification.
Section 17.18.
Tenant certifies
that: (i)
person, group entity, or nation
Department as a
terrorist,
it
is
not acting, directly or indirectly, for or on behalf ofany
named by any Executive Order
or the United States Treasury
“Specially Designated National and Blocked Person,” or other banned
or blocked person, entity, nation, or transaction pursuant to
any law, order, rule or regulation that
is enforced or administered by the Office of Foreign
Assets Control; and (ii) it is not engaging in,
instigating or facilitating this transaction, directly or indirectly, on behalf
of any such person,
group, entity, or nation.
Tenant hereby agrees to defend, indemnify, and hold harmless Landlord from
and against
any and all claims, damages, losses, risks, liabilities, and expenses (including attomeys’ fees and
costs) arising from or related to any breach of the foregoing certification.
Section 17.19.
This
Relationshig of Parties.
Lmse
shall not create
any relationship between the parties other than
that
of
Landlord and Tenant.
Section 17.20.
Rule Against Peggetuities.
If Landlord fails to deliver the
the date of this Lease, either party
Leased Premises to Tenant within twelve (12) months from
may terminate this Lease at any time afier the last day of the
twelfih ( 12m) fiJll calendar month upon providing the other party thirty
(30) days' prior written
Notice. Notwithstanding any provision in this Lease to the contrary, if the
Term has not
commenced within twenty-one (2]) years afier the date ofthis Lease, this Lease shall
automatically terminate on the twenty-first (2|st) anniversary of the date ofthis
Lease. The sole
purpose of this provision is to avoid any possible interpretation of this Lease as
violating the
Rule Against Perpetuities, or any other rule of law or equity concerning
Section 17.21.
shall
restraints
on
alienation.
Choice of Law.
This Lease shall be construed, and all disputes, claims, and questions arising
hereunder
be determined, in accordance with the laws ofthc state within which the
Village is
located.
Section 17.22.
Choice of Forum.
Any action involving a dispute relating in any manner to the Lease, the relationship of
Landlord/Tenant, the use or occupancy ofthc Leased Premises, and/or
any claim of injury or
damage shall be filed and adjudicated solely in the state or federal courts of the jurisdiction in
which the Leased Premises are
Section 17.23.
Time
is
Section 17.24.
located.
W
Time
is
ofthe Essence.
ofthe essence with respect to each and every obligation arising under
this Lease.
No rights to any view
or to light or air over any property. whether belonging to Landlord
or any other person, are granted to Tenant by this stc. If at
any time any windows ofthe
Leased Premises are temporarily darkened or the light or view therefrom is obstructed
by reason
of any
improvements, maintenance or cleaning in or about the Commercial Portion, the
same shall be without liability to Landlord and without any reduction or diminution ofTenant's
obligations under this Lease.
repairs,
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Section 17.25.
Declaration.
Notwithstanding an31hing to the contrary in this Lease, it is specifically understood and
agreed that this Lease and Tenant's use of the Leased Premises and the Common Areas
is and
shall be subject to that certain Santana Row Amended and Restated Declaration
ofCommon
Easements, Covenants and Restrictions, as may be amended from time to time
(the
"Declaration") which
Commencement
or will be recorded against the Commercial Portion on or before the Rent
Date. The Declaration shall control in the event of a conflict between it and
this
is
Lease.
Section 17.26.
Notice of the Presence 0f Hazardous Substances and of Restrictions.
Pursuant to California Health
that hazardous substances are located
This Lease
& Safety Code section 25359.7, Tenant
on or beneath the Village that
is
is
hereby notified
the subject of this Lease.
subject to and incorporates by reference all matters of record affecting
Village that is the subject ofthis Lease, including certain environmental
and
is
title
to the
use restrictions.
Such
restrictions include but are not limited to prohibitions against
development and against
activities that disturb
ground level residential
ground surface coverings and soil beneath the
coverings.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Lease under their respective hands and seals as ofthe day and year first above
written.
WITNESS:
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC, a California limited liability company, by
managing member, STREET RETAIL, lNC., a
its
Maryland corporation
By:
Name:
Title:
Deborah A. Colson
Vice President-Legal Operations
TENANT:
TESLA MOTORS, INC“ a Delaware corporation
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By:
Name:
'
'
'
'
Title:
D - MALEGALHPROPRTYBANTANMTGII (Enunion Copy).doa(
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Lease under their respective hands and seals as of the day and year first above
written.
WITNESS:
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY VILLAGE,
LLC, a California limited liability company, by
managing member, STREET RETAIL, INC, a
its
Maryland corporation
By:
Name:
Deborah A. Colson
Vice President-Legal Operations
Title:
QM
TENANT:
TESLA MOTORS,
By:
‘
Name:
-
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EXHIBIT _
A
LEGEND
CAR DROP OFF AREA
__..-.._- TENANT 'S PATH FOR CAR DELIVERY. CARS TO BE DELIVERED
& INSTALLED
INTO THE STOREFRONT WITH LOADING JACKS ONLY. TENANT NOT TO
DRIVE CARS ON PEDESTRIAN WALKWAY.
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Exhibit
A
Page
1
PDF Page 45
EXHIBIT fl
LANDLORD AND TENANT IMPROVEMENTS
LANDLORD IMPROVEMENTS
The following improvements or conditions will be provided in the Leased Premises at
Landlord’s sole cost and expense ("Landlord’s Wor ”). Any improvements not specified
below
shall
be made
at
Tenant's sole cost and expense:
A. Leased Premises to be fi‘ee and clear of
all
Hazardous Substances as and
to the extent
required by applicable laws, rules and regulations.
Leased Premises to be in compliance with all existing code requirements, including,
without limitation, Legal Requirements concerning Hazardous Substances and
ACM,
seismic, exiting, and
ADA,
and from the Premises
in its
including, without limitation, path of travel requirements to
condition as of the date that Landlord delivers the Premises
to Tenant.
The foregoing
be deemed to impose any responsibility whatsoever on
any Alterations (including Tenant’s Work) or other
modifications made by or on behalf of Tenant in or to the Leased Premises or
the
Landlord
shall in not event
with
respect
to
entrance, nor shall the
same be deemed a representation as to compliance related to
Tenant’s particular use 0fthe Leased Premises.
B.
Landlord shall deliver to a point within the interior of the Leased Premises during
production ofany plans for Landlord’s Work the following utilities:
Electrical
o
200 amps
o
120/240V, single phase service within the premises.
Exterior wiring for signage
o
70
at
Amp service to the PCA.
Water Service
o
l” service
Phone Service
o
2" conduit with pull string
o
Landlord to supply heat and air conditioning including distribution and controls
ready for Tenant’s use at one ton per 250 sq. fl. Tenant shall be responsible for
maintenance and repair ofsaid unit.
HVAC
Central Fire Safety System/ Fire Sprinklers
o
Central fire safety system as required by the local fire authority
o
Fire sprinkler mains. grid system, and fire sprinkler heads meeting all
local codes
based on the condition of the Leased Premises as of the date that Landlord
delivers the Leased Premises to Tenant.
0
Floors level V4" over [0’
o
Ready
o
Landlord to provide
Floors
for Tenant’s
flooring
Restrooms
l
code compliant. handicap restrooms within Leased
Premises per Tenant’s plans
Demising and Exterior Walls
o
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EXHIBIT fl
TESLA ; SPACE NO.
3035
LANDLORD AND TENANT IMPROVEMENTS
o
Landlord shall provide demising walls on
spackled, sanded and paint ready.
o
Open
common
side
which
shall
be taped,
Ceilings
ceiling (per local codes)
Storefront! Facade/Tenant
o
Landlord shall demolish the existing storefront. Tenant shall create a new entry
into the space and storefront fiom the exterior of the Building, which shall be
approved
o
Exiting/
Code
o
Doors
in
accordance with Plans.
Landlord shall provide the existing rear exit door
in
good working
order.
Issues
Landlord to provide
ADA
access to the front and back ofthe Leased Premises, per
applicable code requirements in the condition of the Premises as of the date
Landlord’s delivery to Tenant.
all
In the event that Landlord determines that any clement of Landlord’s Work requires
design input from Tenant, Landlords shall solicit the same from Tenant, and Tenant agrees to
respond within forty-eight (48) hours of any request therefor or, at Landlord’s election,
Landlord‘s selection shall be deemed
made on behalf of Tenant.
If Landlord shall be delayed in completing the work and materials to be provided
pursuant to this Exhibit as a result of any of the following (each, a “Tenant Delay”)
(I) Tenant’s
failure to comply with any of the deadlines specified in this Exhibit or with
any of the other
requirements of this Exhibit or the Lease, (2) Tenant’s request for modifications to plans or
working drawings subsequent
to the date such plans or working drawings are approved
by
Landlord, or Tenant‘s request for any change order (even if approved),
(3) Tenant’s failure to pay
when due any amount,
(4) Tenant’s request for long lead time materials, finishes or installations,
or (5) the performance of any work, or the entry into the Leased Premises,
by Tenant or any
person or firm employed or retained by Tenant, then for purposes of determining the Term
Commencement
Date, the work and materials to be provided pursuant to this Exhibit shall be
have been substantially complete on the date that Landlord determines in its
reasonable judgment that such work and materials would have been substantially complete if
such delay(s) had not occurred.
deemed
to
TENANT IMPROVEMENTS
Tenant shall
(a)
completely remodel, renovate and refurbish the Leased Premises,
minimum, installing new storefront, storefront signage, and ceiling, lighting,
trade fixtures, and floor and wall coverings, and making changes to the Leased Premises
necessary to place same in compliance with all applicable governmental codes to enable Tenant
including, at a
to properly use the Leased Premises for the Permitted Use,
improve the
PCA for the Permitted
Use (hereinafier
and
(b)
completely enclose and
collectively referred to as “Tenant‘s Work”).
Plan Submittal Procedure
All
work to be performed by Tenant hereunder
shall be in accordance with detailed plans
and specifications, to be prepared by Tenant's architect in reproducible form, including Tenant’s
material sample board (hereinaficr collectively referred to as the “Plans”), all ofwhich shall
be
submitted to Landlord within
fifiy (50) days of the date of this Lease for Landlord’s written
approval (as to both to design and materials) which such approval shall not be unreasonably
withheld, conditioned or delayed. Landlord agrees to use commercially reasonable efforts to
promptly review and either approve, conditionally approve, or disapprove the Plans within ten
(IO) business days aficr Landlord’s receipt thereof. If Landlord advises Tenant that changes to
the Plans are required, Tenant shall have ten (10) business days thereafier to revise
(as required
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EXHIBIT fl
TESLA 3 SPACE NO.
3035
LANDLORD AND TENANT IMPROVEMENTS
by Landlord) and resubmit the Plans
for Landlord’s approval. This process shall continue until
Landlord has approved the Plans.
expressly agreed that Tenant shall not commence any such work until Landlord
has
approved the Plans and any required building permits have been issued
by the applicable local
governmental authorities.
It is
No changes of materials or finishes are permitted afier Landlord’s final approval ofthe
Plans unless approved in writing by Landlord.
Within seven (7) days of the date upon which Tenant has received Landlord's
approval
the Plans, Tenant shall apply for all appropriate building
permits in accordance with the
of
requirements of the applicable jurisdiction and shall use its best efl‘orts
to obtain the same.
Tenant shall promptly give a copy ofthe building permits to Landlord.
Construction Reguircments
Tenant shall commence construction of Tenant's Work in the
Leased Premises no later
than five (5) days afier whichever of the following shall
be the latest to occur:
(a)
The date Tenant
(b)
The date of issuance of all appropriate building
(c)
The Term Commencement Date.
Tenant
shall best efl'orts to
Commencement
receives Landlord's approval of the Plans; or
complete
all
ofTenant's
permits; or
Work and open on
or before the Rent
Date.
Tenant's general contractor will meet with Landlord's
representative prior to the initiation
of any work on the space to review Landlord’s construction
rules and regulations and any other
requirements specific to the Village.
Tenant's general contractor will submit to
Landlord a check for Two Thousand Five
Hundred Dollars ($2,500.00) as a construction deposit made
payable to the Landlord. This
deposit will be returned in full afier the contractor
has completed Tenant's
Work, provided no
rules
have been violated,
all
Landlord's punch
list
items are corrected, and no
damage has
occurred to the Village.
In the event that a storefront (or other)
barricade is required for the Leased Premises
during construction, Landlord shall install and remove the
same, subject to reimbursement by
Tenant at Landlord‘s standard cost therefor, which shall not
exceed an amount equal to One
Hundred Forty and 00/] 00 Dollars ($140.00) per lineal foot of
barricade. Any graphics therefor
shall be provided by Tenant at its sole
cost, and shall be subject to Landlord’s reasonable
approval.
Tenant must place the electric, water and/or gas meters in its
name with the appropriate
utility companies within five (5) days fi'om the date
Landlord delivers the [gased Premises to
Tenant but in all events prior to the commencement ofany ofTenant's
Work in the Leased
Premises.
All
work to be performed by Tenant
manner, and
in
shall obtain all
shall be performed in a good and workmanlike
accordance with Section 9.04. ofthe Lease. Tenant, at its sole
cost and expense,
permits, licenses or approvals required for Tenant’s Work from
the appropriate
authorities.
Tenant expressly agrem to indemnify, defend and hold Landlord
harmless fiom and
against any liability to any Person or estate for damage to person
or property occurring during the
work proposed hereunder.
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EXHIBIT B
TESLA SPACE NO.
_-_
3035
LANDLORD AND TENANT IMPROVEMENTS
At
the completion of Tenant’s
Work, Tenant
shall deliver to
Certificate ofOccupancy, as well as “as-built” drawings, in
Landlord a copy of its
CADD format, for Tenant’s Work.
SANTANA ROW SHOPPING CENTER
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Wm
EXHIBIT Q
Storefront signs should have unique interpretations for different stores. Size, design,
of illumination, height, and other characteristics may vary with different types
of stores. The two most important aspects of a sign are that it be clearly visible and that it
accurately reflect the character of the store.
illumination, lack
The Tenant's signage allowance
shall
be limited to a sign area
1.5
square feet for each
linear foot ofTenant's store frontage.
All signage must be approved by the Landlord and the City 0f San Jose — Dept. 0f
Planning before Tenant commences sign fabrication, installation or obtaining governmental
approvals. No changes are permitted afier final Landlord approval unless approved in
writing
Landlord. Landlord's approval
may be
granted or withheld
in
by
Landlord's sole and absolute
discretion.
to
Tenant shall submit sign shop drawings to Landlord for Landlord's written approval prior
fabrication. The shop drawings shall show the size of all graphics and letters,
commencing
along with spacing. type of material, color, dimensions
in relation to Leased Premises and
compatible with the construction of the building facade and storefront. The
drawings shall be to scale, showing a front elevation and section through sign, dimensioned to
installation details
show
overall length, height
demising
and
letter
depth, along with distance from end of letters to store
line.
Primary sign types include storefront signs, blade signs, and window signs. Other
may be considered by the Landlord to also communicate the store’s identity might
include options such as: fans, vertical projected signs, awnings, plaques,
pavement graphics and
perhaps balcony treatments.
elements that
A.
Storefront
Sigs
Storefront signs
mounted signs”
image
must reflect the Trade Name ofthe Tenant. The storefront sign (or “flat
San Jose’s Sign Ordinance) can include retail logo, a symbol, or
as referenced in
that represents the store, or
simply the Trade Name. Despite the term “flat” used in the
Sign Ordinance, the Tenant is highly encouraged to explore three-dimensional
design options at
Santana Row, giving storefronts variety, texture and depth.
Signage should have a three-dimensional character and be illuminated
by a light source
of the storefront. To meet City of San Jose lighting
fully integrated with the architecture
requirements, illumination needs to be concealed. Signage cut through a surface
material with
illumination from behind, or reverse channel “halo“ letters are good examples of
concealed
lighting techniques.
Natural materials are the most appropriate for signage fabrication in Santana Row
and
would include: cast, polished or painted metal; painted, stained or natural wood; glazed and
mosaic
is
tile;
etched. cut, edge-lit. or stained glass; cast-stone and craved natural stone. Bas-relief
encouraged, as are unique shapes and dimensional profiles.
All equipment. transformers, raceways, ballasts, crossovers, and conduits
must be
concealed behind the fascia area. Connections and penetrations through the fascia shall
be
restricted. Tenants will be help responsible for damage to and repair of the Landlord’s
fascia due
to the attachment
B.
Display
of signage.
Window Sigs
may also incorporate signs inside the display window. Display window signs
name and logo only. Brand names, brand logos and product trademarks
Display window signs shall be designed to compliment the architectural design
Storefronts
are intended for the store
are prohibited.
and work with the other display concepts ofthe
and approval.
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storefront. All
Are subject
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C
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m
EXHIBIT Q
SIGN—AGE
While meeting the Sign Ordinance for the City of San Jose Code Requirements is to not
exceed more than 25% ofthe total glazed area. Variance inquiry will be submitted
by the Tenant
afier discussion with the Landlord, and at the Tenant’s own expense.
window
Display
draw
signs should generally be set back sufficiently from the storefiont to
attention to the display area. Signs
must be set back a minimum oftwelve inches (1 2”)
behind storefront glazing and are not to be counted against overall sign area. All ballasts,
transformers and other non-illuminated elements must be concealed.
Window Sigs
C.
display
Window
signs
window
signs are not allowed.
may be used
in
any glazed area
Window
in lieu
ofa display window sign or where
signs are intended to display the Trade
Name
and logo only.
Window
signs are applied directly to the surface ofthe glass. These include metal
leaf,
painted, etched, cut and sandblasted lettering. Vinyl signs, and reverse
cut vinyl adhesive signs
on window glazing are discouraged.
While meeting
Sign Ordinance for the City of San Jose Code Requirements, it is
total glazed areas, and shall be counted against the total
signage allowance. Variance inquiry will be submitted by the Tenant afier
discussion with the
Landlord and at the Tenant’s own expense.
not to exceed
D.
at the
more than 25% of the
Plague Siggs
The
store’s
Trade Name,
plaque designs. Mounting
is
identity,
and related imagery
best at eye-level and sign area
is
may be reviewed
part
for wall
of area calculations
mounted
for overall
allowances by Code.
Entrv Area Paving Sigg
E.
Tenants
or logo
may be
may
incorporate the store
name
created with a design on glazed
or logo inset in recessed entry areas. The name
— as a mosaic, in terrazzo, or other approved
tile
paving material. Metal plaque signs may also be inset provided
they maintain a flush walking
surface. If Tenant wishes to extend unique or creative
flooring designs beyond recessed area,
Landlord’s prior approval is required.
F.
Store Address
Sigage
Landlord has designated a comprehensive system ofTenant address and
way finding
within the project. As part of this overall system, all Tenants will be
required to install, at their
own cost, a consistent addressing number. This will fimction as the premises address signage,
exact location will be determined by the Landlord in conjunction with
the Fire Marshall.
G.
its
Undercanopx Signage
If undercanopy
and/or blade signs are permitted by govemmental authorities and
expense, will design, fabricate and install an undercanopy and/or blade
sign per the requirements specified in Landlord’s undercanopy sign criteria.
Undercanopy and/or
Landlord, Tenant, at
its
blade signs shall be considered Signs (as defined in the Lease), thus requiring, among
other
on design and location prior to installation.
things, Landlord's written approval
H.
Additional Siggage per Building
Street level blade signs; larger multi-story, vertical blade signs;
should be discussed ifthc Tenant
M:\LEGAL1 \PROPERTY\SANTANA\T$I&
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(Execution Copy).docx
Exhibit
C
Page 2
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EXHIBIT Q
SIGNAGE
package. Additional signage ideas will be reviewed and decided on a first-come, first-considered
basis by Landlord.
I.
Prohibited Sign Material
o
Plastic materials
of any kind, including
acrylic letters,
and vacuum-formed
plastic
letters
o
[ntemally illuminated. acrylic-faced channel letters
o
Cabinet signs with illuminated, translucent background and silhouette letters
Signs utilizing paper, cardboard, stickers, 0r decals applied to or located behind
o
the storefi'ont glazing
o
Sandblasted
wood
signs in natural
wood finish with
painted, raised letters and/or
logos.
o
No
Exposed raceways,
ballast boxes. transformers, crossovers or conduit
advertising placards, banners, pennants, names, insignia, trademarks, or other
descriptive or promotional material
may be affixed or maintained on windows, glass fixtures and
equipment or any other area of the storefront, including credit card signs. The name, stamps,
or
decals of the sign manufacturer cannot be displayed on any visible portion ofthe sign. Nonomamental hardware used
J.
t0 attach sign to storefront
may
not be exposed to view.
Access, Power and Compliance
Access panels through Tenant ceilings and/or catwalks required to service Tenant sign
equipment must be provided as per Code and at Tenant’s expense. Access panels required for
concealed transformers must be located
permitted on underside of entry soffits.
at the
backside of entry soffits. Access panels will not be
All illuminated storefront signage shall be on the Tenant’s electrical
circuit, and
controlled by a timer set to the Landlord's established hours. Light levels on
signage lighting
shall
be maintained
in a
controlled by a lockable
manner consistent with the Landlord’s
dimmer switch and circuit.
overall lighting plan
and
shall
be
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EXHIBIT Q
RULES AND REGULATIONS
Tenant expressly covenants and agrees, at all times during the Term, and at such other
times as Tenant occupies the Leased Premises or any part thereof, to comply, at its own
cost and
expense, with the following:
Any
1.
handling of freight for any purpose, or deliveries to or from the Leased
in a manner which is consistent with good retail practice and
only
such areas, and through such entrances and exits as are from time to time
Premises, shall be
such times,
in
made
at
designated for such purposes by Landlord. Notwithstanding the foregoing,
Tenant may
accept delivery in the manner set forth in Section 6.01. Any truck or machine
used for
handling fi'eight or making deliveries
in the
Leased Premises or
in
the Village shall have rubber
wheels only.
All garbage and other refuse shall be kept inside the Leased Premises in
the type
of container specified by Landlord until such time as it is to be collected. All
garbage shall be
prepared for collection, and collected in the manner and at the times and
places specified by
Landlord. lf Landlord elects to furnish or designate any service for the
removal of garbage and
other refuse, Tenant shall use such service. Tenant shall not be
obligated to pay more for such
service than the prevailing competitive rates charged
by reputable, independent trash removal
contractors for equal service on a direct and individual basis. [f
fumished or billed by or through
Landlord, Tenant shall pay for such service monthly as Additional Rent.
[t is the intent ofthe
parties that the cost ofsuch service shall be separate fiom
and in addition to Tenant’s Share of
2.
Operating Costs. If Landlord does not provide such service, Tenant shall
be solely responsible
for contracting for the removal ofall garbage and other
refuse from the Leased Premises and
shall
pay promptly
3.
bright light to
all
charges therefor.
Tenant shall not (i) suffer, allow or permit any vibration, noise, odor or
flashing or
emanate from the Leased Premises or from any machine or other installation
located therein, or otherwise sufier, allow or permit the same
to constitute a nuisance to or
interfere with the safety. comfort or convenience of
Landlord or of any other occupant or user of
the Village; (ii) display, paint, or place any handbills,
bumper stickers or other advertising
devices on any vehicle(s) parked in the parking area(s) ofthe
Village, whether belonging to
Tenant,
its employee(s), or any other
Person(s); (iii) solicit business or distribute any handbills or
other advertising materials in the Common Areas;
(iv) conduct or permit any activities in the
Village that might constitute a public or private nuisance;
(v) permit the parking of any vehicles
or the placement of any displays, trash receptacles or other
items, so as to interfere with the use
of any driveway, fire lane, corridor, walkway, parking area,
mall or any other part of the
Building; (vi) use or occupy the Leased Premises or permit
anything to be done therein which in
any manner might cause injury or damage
Leased Premises
in
any manner which
in
or about the Village; or
(vii)
use or occupy the
unreasonably annoying to other tenants in the Village
unless directly occasioned by the proper conduct of Tenant's
business in the Leased Premises.
is
4.
Tenant shall secure and protect the Leased Premises, and all
property located
within the Leased Premises. Tenant acknowledges and agrees
that it, and not Landlord, is solely
responsible for securing and protecting the Leased Premises, and all
property located within the
Leased Premises.
5.
Tenant shall use the plumbing within the Leased Premises and the
Commercial
Portion only for the purpose for which it is designed. Tenant shall be
solely responsible
breakage, stoppage or
damage
resulting
costs associated therewith to Landlord
for any
violation ofthis provision, and shall pay any
demand as Additional Rent.
fiom
upon
its
6.
In Tenant’s reasonable judgment and subject to the applicable
provisions of
the Lease, Tenant shall contract for and use termite and pest
extermination services for the
Leased Premises, and with such contractor, as Landlord may from time to
time
designate. Tenant
be obligated to pay more for such service than the prevailing competitive
rate charged
by reputable, independent contractors. If Landlord does not designate such contractor,
Tenant
may employ a reputable contractor of its choosing, subject to Landlord's prior written
shall not
consent.
D v M:\LEGALI\PROPERTY\SANTANA\T$I: (Execution Copy)‘docx
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EXHIBIT Q
RULES AND REGULATIONS
Tenant
7.
display
lighted
and maintain
shall install
at all
times a display of merchandise in the
windows (ifany) ofthe Leased Premises and shall keep such display windows well
during all Commercial Portion business hours and for at least one (l) hour thereafier. All
and the arrangement, style, color and general appearance thereof, shall be in keeping
with the character and standards of the Commercial Portion as reasonably determined
by
Landlord.
articles.
Tenant
8.
by Landlord. Tenant
any window cleaning program that may be established
be obligated to pay more for its participation in such window
shall participate in
shall not
cleaning program than the prevailing competitive rate charged by reputable independent
cleaning contractors for equal service on a direct and individual basis.
IfTenant undertakes any construction
9.
activities
window
which cause any work stoppage,
picketing, labor disruption or dispute, so as to interfere with the activities at the Village,
Tenant
shall, upon request from Landlord, immediately suspend any construction work being
performed
in
the Leased Premises giving rise to such labor problems. Tenant shall have no claim for
damages ofany nature against Landlord
Date be extended as a
Tenant
l0.
Leased Premises or
its
for such suspension nor shall the
Term Commencement
result thereof.
promptly obtain all permits, including occupancy permits, for the
use thereof. Tenant shall pay before delinquency all license and permit
shall
and other charges of a similar nature, for the conduct ofany business in, or
any use of, the
Leased Premises. Upon request Tenant shall provide to Landlord a copy of all its
permits,
fees,
including the cenificate ofoccupancy.
Tenant shall use the Village name and logo and include the Tenant Trade Name
and the address and identity ofTenant's business in the Leased Premises in all advertisements
made by Tenant in any manner and in any medium.
l
l.
l2.
Tenant shall not conduct 0r permit to be conducted any auction, fire, “going out 0f
business” or similar type of sale (whether real or fictitious) from the Leased
Premises; provided,
however
that this provision shall not restrict the absolute
Tenant) ofTenant to determine
its
own
promotional or clearance sales held
in
freedom (as between Landlord and
selling prices nor shall
it
preclude periodic, seasonal,
the ordinary course of business.
l3.
Tenant shall not place a load on any floor in the Commercial Portion which
exceeds the load which the floor was designed to carry, or which may result in improper
weight
distribution on such floors.
l4.
Tenant shall not install, operate or maintain in the Leased Premises, or in
any
other area ofthe Commercial Portion, electrical equipment which docs not bear the
Underwriters
Laboratories seal of approval, or which would overload the electrical system or
any part thereof
beyond its capacity for proper. efficient and safe operation.
To
IS.
order,
Tenant
the extent required by Landlord or by any law, rule, regulation, guideline
or
shall
provide sound barriers for
mechanical systems serving the Leased
all
Premises.
l6.
Tenant shall not store, display, sell, or distribute any alcoholic beverages,
dangerous materials. flammable materials, explosives, or weapons in the Leased Premises, or
conduct any unsafe activities therein, unless permitted pursuant to Section 1.01.
l7.
Except to the extent permitted
display or offer for sale
illicit
drugs, or
(ii)
any paraphernalia
in
Section 1.01, Tenant shall not
commonly employed
sell, distribute,
the use or ingestion of
any X-rated, pornographic, lewd, or so-callcd “adult” newspaper, book,
(i)
in
magazine, film, picture, video tape or video disk.
18.
automatic
Tenant
teller
shall not operate or
permit to be operated in the Leased Premises any
machines, or any coin or token operated vending machine or similar device
including telephones, lockers,
amusement devices, and machines for the sale of
beverages, foods, candy, cigarettes or other goods, except for the exclusive use of its
toilets, scales,
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EXHIBrr Q
RULES AND REGULATIONS
employees, and provided such items are not visible or located within the
of the Leased Premises.
l9.
No
retail selling
area
radio or television aerial or other device
may be erected by Tenant on the roof
or on any exterior wall ofthe Leased Premises, or the building in which the
Leased Premises is
located, without Landlord's prior written consent. Any aerial or other device installed
without
such written consent shall be subject to removal by Landlord, at Tenant's sole risk and
expense,
without Notice.
20.
Tenant
efforts to provide to
upon five
(5) days' written Notice from Landlord, use reasonable
of license numbers of all of Tenant’s and its employees’
employees fail to park their vehicles in designated parking areas, or if
shall,
Landlord a
vehicles. IfTenant or
its
list
Tenant undertakes or permits the delivery of merchandise or other items except as
herein
provided, Landlord may, in addition to its other rights and remedies under this
Lease, on
the
second and any subsequent violation in any calendar year, charge the owner
ofthe violating
automobile who shall pay to Landlord, on demand, $25.00 per day per vehicle
parking in any
area other than those designated by Landlord and $25.00 per
delivery for deliveries undertaken or
permitted by Tenant in the manner hereinabove prohibited.
2 1.
Tenant
shall
comply with
all
other reasonable and, subject to the parenthetical
in this sentence,
uniformly enforced, rules and regulations fi'om time to time established
by
Landlord or any association formed in the Village which
apply generally to all other stores in the
Commercial Portion (other than Major Tenants).
D
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Exhibit
D
Page 3
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EXHIBIT E
ANNUAL GROSS SALES STATEMENT FORM
Please mail to:
FRIT
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC
c/o Federal Realty Investment Trust
A'ITN: Sylvia Korzan, Senior Sales Analyst
I626 East Jefferson Street
Rockville, Maryland 20852-4041
Phone:
301-998-8261
Fax:
301-998-3719
Email:
salesreporting@federalrealty.com
TenantName: Tesla
Property: Santana
Row
Date:
l
hereby certify
that, to the best
of Tenant’s knowledge, Gross Sales as defined
in the
Lease for
the above location are as follows:
Month:
Sales
Amount:
Tesla Motors,
lnc.,
a Delaware corporation
By:
Name and
Title (print):
Phone No.1
E-mail:
M:\LEGALI \PROPERTYSANTANMTfila
[Execution Copy)‘docx
Exhibit
E Page 1
PDF Page 56
EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
General Prohibitions by City of San Jose
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Exhibit F Page
1
PDF Page 57
EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Prohibitions from
CC&Rs for Hotel Valencia
Without limiting the generality of the provisions of Section 10.5, the following uses shall not
be
permitted within any Parcel (unless otherwise indicated below):
Any
10.6.1
use which constitutes a public or private nuisance or which emits or generates
litter, dust or dirt which can be heard or smelled outside
an obnoxious odor, noise,
of any Improvements located on any Parcel;
Any
10.6.2
use which produces or
is accompanied by any unusual fire, explosive 0r other
damaging or dangerous hazards (including the storage, display or sale of explosives
or fireworks, other than de minimis amounts of fireworks for sale to
consumers to
the extent permitted by Legal Requirements);
10.6.3
Any
10.6.4
Any
shooting gallery or gun range;
operation primarily used as a storage warehouse operation and
any assembling,
refining, smelting, industrial, agricultural, drilling or mining
operation;
manufacturing,
Any
l0.6.5
automobile body shop or repair operation, including automobile servicing or
repair work (e.g., oil change, tire change, body or paint shop, tune-up,
brake or
mumer service);
10.6.6
Gasoline or automobile service stations;
Any
10.6.7
residential
use,
including,
without,
single
family dwellings, townhouses,
condominiums, other multi-family units and other forms of living quarters, sleeping
apartments or lodging rooms (other than in connection with the operation
of a
transient hotel):
Any
10.6.8
veterinarian, veterinary hospital or animal raising facilities
(except that this
prohibition shall not prohibit pet shops);
10.6.9
Any mortuary or funeral home;
10.6.10
Any
facility or
or
establishment primarily selling or exhibiting sexually explicit, or
illegal drug-related paraphernalia or featuring strip tease
pornographic materials or
acts or
Ben
nude dancing.
& Jerfl’s Ice Cream &
Frozen Yggurt
Exclusive Use:
(i)
Tenant
is
A. Notwithstanding anything to the contrary contained in this Lease, provided
not in default of this Lease beyond any applicable notice and cure
period, and
(ii) Tenant is open and continuously operating a business in the
Leased Premises in accordance
with Tenant’s Pennined Use, Landlord hereby agrees not to
lease, or permit the use of, any
portion of the Village to any business primarily selling ice cream
and frozen yogurt
("Competing Business"); provided, however,
that Landlord shall not be obligated to violate
any
unlawful competition or unlawful restraint of trade law. The term “primarily”
shall
more than twenty percent (20%) of the total Gross Sales per annum. Notwithstanding
antitrust.
mean
anything to the contrary contained herein, a “Competing Business” shall not
include the
operation of the business offering fiozen yogurt which will initially operate
under
the trade
“Red Mango”, provided, however,
name
that said business shall not be located immediately adjacent to
the Leased Premises.
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision
shall not be
(i) any tenants in the Village, their successors and assigns, who currently
applicable to
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EXHIBIT F
SANT_ANNR_O_W
EXCLUSIVE AND PROHIBITED USES
leases
which permit such tenants
to operate a
Competing Business, or
to
(ii)
any hotel within the
Village.
Best
Bu!
Exclusive Use: Landlord
shall not permit any person or entity other than Tenant in space
leased
from Landlord within a radius of one (1) mile of the Village as measured
from Tenant’s front door, to any tenant or occupant that primarily sells,
rents, services and/or
warehouses (and, if applicable, installs in motor vehicles) the following product
directly or indirectly
categories:
equipment or appliances (including, without limitation, televisions, stereos, and video
recorders); major household appliances (including, without limitation,
refrigerators, fi'eezers,
electronic
microwave ovens, dishwashers, washers and dryers); personal computers, peripherals
and
soflware; entertainment sofiware (including compact discs, music videos and prerecorded
tapes);
or any substitutes for or items which are a technological evolution
of the foregoing items,
stoves,
without Tenant‘s prior written consent, which may be granted or withheld
in Tenant’s sole and
absolute discretion; provided, however, that the foregoing shall not
apply to any tenant or
occupant of the Village (i) that is not a consumer electronics retailer, and
(ii) is of greater than
ten thousand (10,000) leasable square feet.
Further, the foregoing restriction shall not apply to
any tenant or occupant of the Village outside “Tenant’s Exclusive Use Area”, as depicted
on the
site
plan attached hereto as Exhibit B.
Prohibit Use: Tenant shall have the right to
(a) sell gourmet and other food items in support of
to the foregoing product categories, and
(b) use up to ten percent (10%) of the
Premises for a non-alcoholic beverage kiosk or bar, including seating
area, with food, snack and
bakery items incidental thereto.
and incidental
Blowfish Sushi To Die For
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease,
provided
Default of this Lease beyond any applicable cure period, and
(ii) Tenant is
operating a full service, sit-down restaurant, with wait service
and bar and otherwise in
accordance with the Permitted Use, then Landlord hereby agrees not
to lease any portion of the
Commercial Portion as a "Competing Business". A "Competing Business"
is hereby defined as:
(A) a restaurant with a sushi bar; or (B) a restaurant which ofi‘ers more than twenty
(20) seats for
dining and which primarily serves sushi.
(i)
Tenant
is
not
in
Notwithstanding anything to the contrary in the foregoing sentence, this
provision shall not be
applicable to (X) any tenants in the Commercial Portion,
their successors and assigns, who
currently have leases which permit such tenants to operate a
Competing Business; or (Y) any
hotel. In the event that any of such tenants have the
right to change the trade name and use of
their premises to a Competing Business with Landlord's
consent, to the extent permitted by law,
Landlord agrees to withhold its consent or approval to such change of
trade name and use.
Borders Books
& Music
Exclusive Use: From and afier the Effective Date, Landlord will not
execute any lease for
premises in the Village permitting such tenant (including, without limitation,
any subtenant,
licensee. concessionaire or occupant of any portion of the
Village) to operate a bookstore for the
sale of books, periodicals (including newspapers), and related items,
excepting, however, a
store
books and/or periodicals as an ancillary and incidental part of its business,
provided
books and/or periodicals are typically sold by such tenant in its other stores, and
selling
(i)
(ii)
than one hundred (100) square feet of surface display area
books and/or periodicals (the "Tenant's Exclusive Use").
is
devoted to the
retail
not
more
display of such
The provisions of this Article 23(b)
Landlord fi'om entering into a lease with a kiosk or newsstand—type
operator
primarily selling newspapers and magazines within any part of the Village
except in front of
Buildings 5 and 6...
shall not restrict
Burke Williams Dag Sga
Exclusive Use: A. Notwithstanding anything to the contrary contained in this
Lease, provided
Tenant is not in Default of this Lease beyond any applicable cure period and
(ii) Tenant is
(i)
D - M;\LEGALI\PROPERTY\SANTANA\Tesla (Execution Copy),docx
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Exhibit
F Page
3
PDF Page 59
EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
operating a business in the Leased Premises
in accordance with the Permitted Use as a
"Burke Wiiliams Day Spa" spa, Landlord hereby agrees not to lease, or permit the use of, any
portion of the Commercial Portion as a "Competing Business". A "Competing Business" is
hereby defined as any business which: (i) operates as a freestanding spa; and (ii) occupies Floor
Area which is in excess of fifiy percent (50%) ofthe Floor Area of the Leased Premises.
B. Notwithstanding anything to the contrary in the foregoing, this Addendum H shall not be
applicable to
any tenants
(i)
in
the Village. their successors and assigns,
leases in effect ("Existing Tenants"); or
any Major Tenant
who
currently have
afier the
Notwithstanding the foregoing, to the extent Landlord has the right to approve a
the use of the leased premises of any Existing Tenant, and such approval may be
(ii)
that enters into a lease
date hereof.
change
in
reasonably withheld or withheld in Landlord's sole discretion, Landlord shall not approve a
change that would permit the use of such leased premises as a Competing Business during the
Term of the Lease.
Centugx Theatre
Exclusive Use:
First Class
not
Subject to the express rights of existing tenants in effect as of the date the
was executed,
Original Lease
for so long as Tenant is operating the Premises primarily as a
motion picture theater complex (including periods of Excused Closure), Landlord will
use 0r permit to be used any land or space in the Project (other than the Premises),
or on any other land adjoining any part of the Project which is owned or controlled by Landlord
sell, rent,
or a Landlord Affiliate, for use as a motion picture theater or for the commercial exhibition of
motion pictures, films or videos (collectively, “Competing Theater Uses”) or. to the extent within
Landlord’s control. for the advertisement or sale of tickets for any movie theater other than the
Premises (and Tenant’s other theaters); except that, notwithstanding the foregoing “exclusive” in
favor of Tenant, Landlord shall be permitted to exhibit motion pictures, films or videos within
Common
Area 0f the Project on not more than four (4) occasions per Lease Year, none of
more than two (2) consecutive days, provided that (l) the motion pictures, films
or videos exhibited by Landlord in the Common Areas are not and have not been (and are not
the
which
shall last
expected to be)
in
general distribution in First Class motion picture theaters at the time in
question, or within twelve (l2)
afier the time
in the
months
prior to the time in question or within three (3) month
in question, and (2) the exhibition of motion pictures, films or videos
by Landlord
Common
Areas
Theater Uses shall
Showscan-type
shall
also
theaters,
be for charitable or other not-for-profit purposes. The Competing
include
so-called
and ride/simulator
“specialty theaters”
theaters).
(e.g.,
I-Max, I-Works and
..
Subject to the express rights of existing tenants of the Project under their leases in effect as ofthe
date the Original Lease was executed, so long as the Premises is operated primarily as a
Class motion picture theater complex (and for periods 0f Excused Closure where
immediately prior thereto the Premises was operated primarily as a First Class motion picture
theater complex). Landlord will not sell or sufier 0r permit to be sold
(A) prepared popcorn from
First
anywhere within the Project (however,
(l) specialty retail stores that sell
“gourmet” popcorn
be
permitted to sell prepared, gourmet popcorn from premises located north of
Olin Avenue, and (2) restaurants and bars and hotels within the Project shall be permitted to sell
0r provide prepared popcorn to their patrons solely for on-premises consumption (e.g., popcorn
served in a bowl to patrons of a restaurant or bar)) (B) bulk candy (i.e., candy that is not preshall
packaged and
anywhere within the “Candy Restricted Zone” which is
retail stores that sell “gourmet” candies (such as
"Godiva” chocolate shops operated as of the Effective Date) shall be permitted to sell such
“gourmet” candies from premises no closer than one hundred feet (100’) from the Premises), or
(C) cofiee and espresso drinks served primarily on a “takeaway" or “t0 go” basis from anywhere
is
sold by the weight) from
depicted on the Site Plan (however. specialty
within the “Coffee Restricted Zone”
restrictions.
shown on
the Site Plan.
Landlord covenants and agrees that
(i)
neither
In addition to the
foregoing
of the Adjacent Stores (nor any
separately demised premises therein) shall be used or operated primarily as a take-out restaurant
or primarily for the sale or service of food and/or beverage items intended for off-premises
consumption
that are otherwise prohibited
no “take-away” counter for
the sale of such prohibited foods and/or beverages located in either of the Adjacent Stores shall
be directly accessible from (or open into) the “Century Court Area" shown on the Site Plan.
by
this Section;
o MALEGALI\PROPERMSANTANAmsI. (Execution Copy).docx
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Exhibit
F Page 4
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EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Notwithstanding the provisions of Tenant's exclusive rights regarding
bulk candy sales as set
ofthe Lease, Tenant hereby consents to the sale of bulk candy
by a Grocery
Store within the Candy Restricted Zone, provided that
the
display of bulk candy shall not be
(i)
visible through the storefront windows of the Grocery
Store, (ii) no signage or advertising for the
sale of bulk candy shall be placed in the storefront or visible
from the Common Area and (ii) the
Grocery Store shall not devote more than three percent (3%) of its
forth in Section 13.5
display area for the display
and sale of bulk candy...
Prohibited Use: [In addition to the above.] Landlord shall not
permit or suffer any premises
within the Project to be used for any [. .] Obnoxious Uses.
1n addition, Landlord will not use or
permit to be used any other premises or equipment owned
or controlled by Landlord or by any
other occupant of the Center (including, without limitation,
the Adjacent Stores) in such manner
.
would result in any noise or vibration interfering with the acoustics
required by Tenant in its
use of the Premises, 0r as would result in any offensive
odors penetrating the Premises. Without
limitation, Landlord covenants and agrees that the Adjacent
Stores shall not contain or be used
as
for
any business or other use
that generates sound, noise or vibrations at a
level that exceeds
seventy-eight (78) dba (or seventy-eight (78) dbspl, for
fiequencies below the audible range)
measured at the outside ofthe demising walls of the Premises.
“Obnoxious Uses"
is defined as: a use which is repugnant
to the sensibility of the community in
general. including, without limitation,
(a) a store primarily selling or leasing sexually explicit
materials, (b) a movie theater primarily showing "X"
rated or other sexually explicit movies,
(c) a massage parlor, (d) a so-called "head shop" 0r drug
paraphernalia store, (e) a store showing
so-called "peep" shows, (f) a facility featuring
strip tease acts, nude dancing or similar
activities,
(g) a store primarily selling items concerning sexuality (e.g. a so-called "sex
shop") or (h) a
mortuary; and (6) so long as the Project is used predominately
for retail and/or
purposes, the primary use of the Premises shall be for
Chili’s Grill
retail
entertainment
and/or entertainment purposes.]
& Bar
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided
Default of this Lease beyond any applicable cure period
and (ii) Tenant is
operating a full service restaurant in the Leased Premises
under the trade name "Chili's Grill and
Bar" in accordance with the Permitted
Use, Landlord hereby agrees not to lease, or permit the use
of, any ponion of the Commercial Portion as a "Competing
Business". A "Competing Business"
is hereby defined as any full service
restaurant operating under any of the following trade
names:
T.G.I. Fridays, Ruby Tuesday, Outback Steakhouse, Applebee's
or Roadhouse Grill.
(i)
Tenant
is
not
in
Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
(i) any tenants in the Commercial Portion, their
successors and assigns, who
currently have leases which permit such tenants to operate
a "Competing
applicable to
Business"; or (ii) any
event that any 0f such tenants have the right to change
the trade name and use of
their premises to a Competing Business with Landlord's
consent, to the extent permitted by law,
Landlord agrees t0 withhold its consent or approval to such
change oftrade name and use.
hotel.
In the
Club One
at
Santana
Row
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided
(i)
in Default of this Lease beyond any applicable
cure period and (ii) Tenant is
operating a business in the Leased Premises for the Permitted
Use, Landlord hereby agrees not to
lease 0r otherwise permit the use of any portion of the
Village or any other building owned by
Landlord or its affiliates within a six block radius of the Village to a "Competing
Tenant
is
not
Business".
"Competing Business"
is
hereby defined as any business which
(i)
A
operates a fitness club, or
operates a pool facility (exclusive of the Hotel or the Residential
Portion), or (iii) offers
fitness equipment training, or (iv) offers exercise classes, or
provides
personal training, or (vi)
(v)
provides physical therapy (except for a medical office which provides
therapy by a licensed
medical professional). Subsections (ii), (iii), (iv),
(v) and (vi) are hereinafier referred to as
“Ancillary Uses”. It is understood and agreed that a Competing
Business shall be deemed to
include any one of the Ancillary Uses only if the Leased
Premises are used for such Ancillary
Use.
(ii)
D - M'\LEGAL“PROPERTYBANTANMTuIa (Execution Copy).docx
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EXHIBIT F
EXCLUSIVE AND PROHIBITED USES
Notwithstanding anything to the contrary
applicable to
in
in
the foregoing sentence, this provision shall not be
to operate a "Competing Business" or
on-site fitness club provided such facility does not (a) exceed
fifiy—four (2,454) square
feet
who
the Village, their successors and assigns,
which permit such tenants
leases
of an
(i)
any tenants
of Floor Area and/or
(b) offer fitness
(ii)
currently have
Landlord’s operation
two thousand four hundred
equipment
training,
classroom
instruction 0r personal training.
9M
Prohibited Use:
Section 1.0l .0:
cakes and pies, and a limited
coffee,
fresh
teas,
The operation of a bakery
menu of gourmet
featuring gourmet breads, pastries,
sandwiches, salads and beverages, including
squeezed juices and sofl drinks, and for no other purpose.
Tenant’s
kitchen/baking facility at the Leased Premises shall not exceed one thousand three hundred
(
l
,300) square feet of Floor Area.
Cohiba Cigar Lounge
Exclusive Use:
Tenant
Notwithstanding anything to the contrary contained
in this
Lease, provided
not in Default of this Lease beyond any applicable cure period and
is
(ii)
Tenant
(i)
is
operating a business in the Leased Premises in accordance with the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business". A "Competing
Business" is hereby defined as any business which primarily sells tobacco products.
Notwithstanding anything to the contrary
in the
foregoing sentence, this provision shall not be
(i) any tenants in the Village, their successors and assigns, who currently have
which permit such tenants to operate a "Competing Business"; or (ii) any Major Tenant.
applicable to
leases
Consuelo Mexican Bistro
Exclusive Use:
(i)
Tenant
Tenant
is
A. Notwithstanding anything to the contrary contained in this Lease, provided
in default of this Lease beyond any applicable notice and cure period, and (ii)
open and continuously operating a Mexican restaurant in the Leased Premises in
not
is
accordance with the Permitted Use set forth
in Section 1.0] .0, above, Landlord hereby agrees not
any portion of the Commercial Portion as a Competing Restaurant,
Landlord shall not be obligated to violate any antitrust, unlawful
to lease, or permit the use of.
provided, however. that
competition or unlawful restraint of trade law.
full
service restaurant (l) which provides
waitresses, (2)
and
whose menu
consists of
sit
A Competing Restaurant
down
is
hereby defined as any
table service for patrons utilizing waiters
more than twenty percent (20%) of Mexican food
and
items,
(3) that has an average per
customer check (including food and beverage) of between Fifieen
Dollars ($15.00) and Twenty-Five Dollars ($25.00) ("Average Customer Check"). The Average
Customer Check
commencement of the second (2nd) Lease Year, and at
commencement of each Lease Year thereafier, to an amount equal to the Average Customer
Check for the preceding Lease Year multiplied by a fraction, the numerator of which shall be the
Consumer Price Index as of the most recent date prior to such adjustment and the denominator of
which shall be the Consumer Price Index as of twelve (12) months prior thereto. The Consumer
Price Index shall be deemed to mean the U.S. Bureau of Labor Statistics, [Revised] Consumer
shall
be increased
at the
the
"United Slates City Average for Urban
Price Index.
Selected
Data (1982-84 =
100)
all
Wage
Earners and Clerical Workers,
items (seasonally adjusted)"
If
such index shall be
discontinued. then any successor consumer price index of the United States Bureau of Labor
Statistics, 0r
an alternate means of cost price measurement reasonably acceptable to Landlord and
Tenant, shall be used.
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision shall not be
(i) any tenants in the Village, their successors and assigns, who currently have
which permit such tenants to operate a Competing Restaurant; or (ii) any restaurant located
applicable to
leases
within any hotel in the Village.
D M:\LEGALI\PROPERTY\SANTANA\T$la (Exnculion Copy).docx
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SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
M
No kiosk within one hundred feet (100') of the storefront ofthe Leased Premises
contemporary casual apparel or accessories substantially similar to the apparel or
accessories sold under the Tenant Trade Name.
Exclusive Use:
shall sell
Fantasia Tea Cafe’
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
is not in Default ofthis Lease beyond
any applicable cure period, (ii) Tenant is operating
a business in the Leased Premises in accordance with the Permitted
Use, and
Tenant
Tenant
sells
(iii)
pearl drinks, then Landlord hereby agrees not to lease, or permit
the use of, any portion
of the
Commercial Portion which has frontage on Santana Row as a "Competing
Business".
"Competing Business" is hereby defined as any business which
primarily sells pearl drinks.
A
Notwithstanding anything to the contrary in the foregoing, this Addendum
shall not be applicable
to (i) any tenants in the Commercial Portion, their
successors and assigns, who
currently have
leases in effect
tenants, their successors or assigns, to operate a
"Competing
any hotel which may be part of the Village; or (iv) any
the Commercial Portion who sell pearl drinks on an incidental
basis.
Business";
tenants in
which permit such
any Major Tenant;
(ii)
(iii)
Gucci
Prohibited Use: [LL Covenants] Landlord represents and warrants to
Tenant that the Permitted
Use does not and will not violate the provisions of any other Lease
or Exclusive Uses of any
other present or future tenant, or any superior mortgage
or insurance policy and does not violate
any Zoning Regulation afiecting the Village. The Village shall be operated
and at all times
maintained as a high-quality and first-class retail complex and
that Landlord shall use all
reasonable efforts to ensure that retail space in the Commercial
Portion will be leased only to
tenants whose nature. character, reputation and prestige is
consistent with the image of the
Village as a high-quality and first-class retail complex and
who shall not operate their stores as
discount, cut-rate or outlet stores. Also pursuant to the zoning
regulations applicable to the
Village, the maximum cumulative gross building area
allowed for all restaurant, bar and
nightclub uses shall not exceed eighty thousand
(80,000) square feet at
time.
retail
any
InSpa
Exclusive Use: Notwithstanding anything to the
contrary contained in this Lease, provided
(i)
is not in Default of this Lease
beyond any applicable cure period and (ii) Tenant is
Tenant
operating a business in the Leased Premises in accordance
with the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing
Business".
"Competing
Business" is hereby defined as any business that primarily
operates as a day spa offering body
care services. such as by way of example, massages, facial
A
services, waxing,
manicures and
pedicures.
Notwithstanding anything to the contrary
in the foregoing sentence, this provision
shall not be
any tenants in the Village, their successors and assigns, who as of the date ofthe
execution of this Lease have leases which permit such tenants to
operate a "Competing Business"
applicable to
(i)
(“Existing Tenants”) or
expansion of any Existing Tenant space or (iii) any Major
Tenant.
Notwithstanding the foregoing, Landlord agrees not to
(a) modify the terms of any lease for space
within the Village so as to permit a Competing Business except
as permitted in subsection (ii) of
this paragraph or (b) to the extent Landlord has the
right to withhold its consent to a change of
use for a tenant within the Village. without being required to recapture
such tenant’s premises,
Landlord agrees not to consent a change in use by such tenant that would
allow such tenant to
(ii)
operate a Competing Business.
Lavande Nail 82a
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
not in Default of this Lease beyond any applicable cure period
and (ii) Tenant is
operating a business in the Leased Premises in accordance with the
Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
"Competing
Tenant
is
A
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SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Business"
hereby defined as any business which primarily operates as a nail salon offering
is
manicure and pedicure services.
Notwithstanding anything to the contrary
applicable t0
leases
(i)
which permit such tenants
occupied by Aveda. Lather,
in
the foregoing sentence, this provision shall not be
successors and assigns, who currently have
"Competing Business"; (ii) the spaces currently
in the Village. their
any tenants
W
to operate a
Salon, Bellarmine Barber or Burke Williams or
any Major
(iii)
Tenant.
Left
Bank
Exclusive Use:
Tenant
(ii)
Notwithstanding anything to the contrary contained
in this Lease,
provided
(i)
not in material, monetary Default of this Lease beyond any applicable cure period and
is
Tenant
is
operating a business in the Leased Premises as a French Brasserie with a full
service restaurant, with wait service and bar and otherwise in accordance with the Permitted Use,
Landlord hereby agrees not to lease any portion of the Commercial Portion as a "Competing
A
Business".
"Competing Business"
is
hereby defined as any restaurant which operates as a
casual fine dining brasserie or bistro greater than four thousand (4,000) square feet (including
seating areas) with waiter and waitress service, which
(i)
all
primarily offers French food with
entrees in the price range of $14.00 to $18.00 (the "Initial Price Points"), as annually adjusted in
accordance with the Consumer Price Index (as defined below) over the Term (the "CPI
Adjustment"); and (ii) serves beer and wine.
in the foregoing, this Addendum VII shall not be
any tenants or occupants in the Village, their successors and assigns, who
currently have leases or other agreements in effect which permit such persons, their successors or
assigns, to operate a "Competing Business"; or (ii) any fine dining French restaurants such as the
Notwithstanding anything to the contrary
applicable to
(i)
current operations of
La
Folie, Fleur
de Lys. Sent Sovi, or Chapeau
in existence as
0f the date
hereof.
As used
this
in
Addendum,
the "CPI Adjustment" shall
anniversary of the Opening Date by multiplying the
be determined each year on the
Price Points by a fraction, the
numerator of which shall be the Consumer Price Index on the 25th day of the calendar month
immediately preceding the date of such adjustment, and the denominator 0f which shall be the
Consumer
Price Index
Initial
on the Opening Date.
As used herein. "Consumer Price Index" shall mean the Consumer Price Index (all items) for
Urban Wage Eamers and Clerical Workers (revised), 1982-1984 Base ("CPI-W"), as published
by
United
the
States
Department
of Labor,
Bureau
Francisco/Oakland/San Jose Metropolitan Area, or
its
of Labor
successor. If the
Statistics
CPI-W
(or
for
its
the
San
successors)
should cease to be available. Landlord and Tenant shall jointly designate a commercially
reasonable alternative index.
Maggiano’s
Exclusive Use:
Tenant
is
Notwithstanding anything to the contrary contained
in this Lease,
not in Default of this Lease beyond any applicable cure period and
operating a
full
provided
(ii)
(i)
Tenant
is
service Italian restaurant in the Leased Premises in accordance with the Permitted
Use, Landlord hereby agrees not to lease. or permit the use
Portion as a "Competing Business."
A
of, any portion of the Commercial
"Competing Business" is hereby defined as any full
service restaurant greater than four thousand (4,000) square feet with waiter and waitress service,
offering alcoholic beverages and which primarily serves Italian food.
Notwithstanding anything to the contrary
in the
foregoing sentence, this provision shall not be
(i) any tenants in the Commercial Portion. their successors and assigns, who
currently have leases which permit such tenants to operate a "Competing Business"; or (ii) any
hotel. In the event that any of such tenants have the right to change the use of their premises to a
applicable to
Competing Business with Landlord's consent,
withhold
its
to the extent permitted
by law, Landlord agrees
to
consent or approval l0 such change of use.
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F Page
8
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SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Orvis
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
not in Default of this Lease beyond any applicable cure period and
(ii) Tenant is
operating a business in the Leased Premises in accordance with the
Permitted Use, Landlord
hereby agrees not t0 lease any portion of the Village as a "Competing Business".
"Competing
Tenant
is
A
Business"
hereby defined as any business which primarily sells hunting and
fly fishing apparel
and equipment, such as way of example only, but not
by way of limitation, LL. Bean.
For
purposes of this Lease, “primarily” shall mean twenty-five percent
(25%) or more of Tenant’s
Floor Area is devoted to the display and sale of hunting and fishing
apparel and equipment.
is
Notwithstanding anything to the contrary
in the foregoing sentence, this provision shall not
be
the Village, their successors and assigns, who currently
have
leases which permit such tenants to operate a "Competing
Business"; or
Major
applicable to
(i)
any tenants
in
(ii)
any
Tenant
including Pro Bass and Cabelas or (iii) a general sporting good
store such as, by way 0f example
only but not by way of limitation, Spons Authority, Dick’s, Big
5, Sports Chalet, Champs,
Copelands, Any Mountain, REI or Eastern Mountain Sports.
Paper Source
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided (i)
not in Default of this Lease beyond any applicable cure
period and (ii) Tenant is
operating a business in the Leased Premises in accordance
with the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
A "Competing
Tenant
is
Business"
is
hereby defined as any business which primarily
invitations or displays a merchandising unit
sells fine handmade paper or custom
of paper, stationery, invitations and envelopes in
high in size and is substantially similar to the unit
excess of eight (8) feet wide by five (5) feet
shown on Exhibit B-l attached hereto and incorporated herein
by reference. As way of example,
but not by way of limitation, a "Competing Business"
shall mean a business operating under the
tradename “Swoozies” or “Kate’s Paperie". For purposes of
this
“primarily”
Lease,
(30%) or more of a tenant’s floor area
paper or custom invitations.
thirty
is
shall
mean
devoted to the display and sale of fine handmade
Notwithstanding anything to the contrary in the foregoing sentence,
this provision shall not be
applicable to (i) any tenants in the Village, their
successors and assigns, who currently have
leases which permit such tenants to operate a "Competing
Business"; or (ii) any Major Tenant; or
(iii) any greeting cards or gifl stores such
as, by way of example only but not
limitation, Hallmark, Papyrus. or
Blue Tulip; or
example only but not by way of limitation, Party
(iv)
any party goods stores such
City, Party
as,
by way of
by way of
America or Party World.
Pizza Antica
Exclusive Use: A. Notwithstanding anything to the contrary
contained in this Lease, provided
(i) Tenant is not in default of this Lease beyond any applicable
notice and cure period, and (ii)
Tenant is open and continuously operating a restaurant in the
Leased Premises in accordance
with Tenant’s Permitted Use, specifically including the sale of
pizza for on and off premises
consumption, Landlord hereby agrees not to lease, or permit the use
of, any portion of the
Commercial Portion as a Competing Business, provided. however, that
Landlord shall not be
obligated to violate any antitrust, unlawful competition or
unlawful restraint of trade law. A
Competing Business is hereby defined as any restaurant which "Primarily"
serves pizza. As used
herein, the term "Primarily" shall mean that more than fifieen
percent (15%) of such restaurant's
gross sales are derived finm the sale ofpizza.
B. Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
(i) any tenants in the Commercial Portion, their successors
and assigns, who
currently have leases which permit such tenants to operate a
Competing Business; or (ii) any
hotel in the Village. 1n the event that in any Lease Year Tenant’s
Gross Sales are below Tenant’s
Annual Breakpoint for such Lease Year, then commencing in the following
applicable to
Addendum
D
-
Lease Year,
shall
lapse and be
ofno
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EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Pluto’s
Exclusive Use: Notwithstanding anything
Tenant
is
to the contrary
contained in this Lease, provided
not in Default of this Lease beyond any applicable cure period and
operating a business
in the
Leased Premises
(ii)
Tenant
(i)
is
accordance with the Permitted Use, Landlord
in
any portion of the retail in-line space within Buildings 1, 3, 4, 5, 6,
7, 8, and l3 of Commercial Portion of the Village as identified on Exhibit A-l, (b) any of the
permanent kiosks located in the Village (and designated as spaces 106, 107 and 108 on Exhibit
hereby agrees not to lease
A-_l)
and
(c)
(a)
any temporary kiosks within the Common Area surrounding Building 13 (and
"No Compete Kiosk Area" on Exhibit A-l) as a "Competing Business". A
designated as the
"Competing Business"
is
hereby defined as any business which operates as a
fast
casual counter
service restaurant (or kiosk) which primarily serves California fresh hand tossed green salads and
hand carved roasted and grilled meat sandwiches, such as, by way of example only, but not by
way of limitation, Comer Bakery, Fresh Choice, Panera and Buckhorn. Notwithstanding the
foregoing, in no event shall a restaurant featuring ethnic cuisine or a New York style delicatessen
be considered a Competing Business. [n addition, Tenant acknowledges and agrees that the "No
Compete Kiosk Area" shall not include any kiosks that are temporary in nature and in connection
with a special event such as the Italian Festival. wine tasting events or the farmer's market.
B.
Notwithstanding anything to the contrary
applicable to
any tenants
(i)
in the
foregoing, this provision shall not be
in the Village, their successors
leases in effect ("Existing Tenants"); 0r
(ii)
any Major Tenant
and assigns, who currently have
that enters into a lease
afier the
date hereof.
Priscilla of
Boston
Exclusive Use: So long as
(a) Tenant is operating the Leased Premises for the Permitted Use and
not in Default with respect to any monetary and/or material obligation hereunder,
then during the Term, Landlord agrees not to lease any portion of the Commercial Portion of the
Village for any business which primarily sells and/or rents women’s bridal wedding gowns (the
(b)
Tenant
is
“Exclusive Use”).
For the purposes of
this paragraph,
a tenant or other occupant of the
Commercial Portion of the Village will be deemed to primarily sell and/or
wedding gowns if ( 1) such tenant or occupant is not a national or regional
(2) the sale and/or rental
of women’s
rent
women’s
retail
bridal
establishment;
wedding gowns is not made in connection with the
sale and/or rental of women’s bridal wedding gowns in substantially all of such tenant’s or
occupant’s other stores; or (3) more than one percent (1%) of such tenant’s or occupant’s gross
bridal
from the sale and/or rental women’s bridal wedding gowns. The foregoing
Exclusive Use does not apply to (l) existing tenants and/or occupants of the Village, their
successors and assigns as of the date hereof, whose leases or operational agreements permit such
tenants and/or occupants, their successors and assigns. to operate for the Exclusive Use, except
sales are derived
the extent such tenants and/or occupants, their successors or assigns, request a change of
use or enter into an assignment or sublease that includes a change of use and Landlord has the
that, to
right to
deny such request for the reason
changed use would then violate
that the
this
Exclusive
Use; and/or (2) any Major Tenant.
Smith Alder
Exclusive Use:
(i)
Tenant
Tenant
is
is
A. Notwithstanding anything to the contrary contained
in this
Lease, provided
not in default of this Lease beyond any applicable notice and cure period, and
open and continuously operating a business
in the
Leased Premises
in
(ii)
accordance with
Tenant's Permitted Use, Landlord hereby agrees not to lease any portion of the Village to any
business owned and operated by Tom Teifer or any store operating under the trade names "Tom
Teifer" or
"Tom
Teifer's
Women's Wear" ("Competing
Landlord shall not be obligated to violate any
restraint of trade law.
Business"); provided, however, that
antitrust,
unlawful competition or unlawful
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision shall not be
applicable to (i) any tenants in the Village, their successors and assigns, who currently have
leases in effect;
(ii)
any Major Tenant
at
any time; or
(iii)
any hotel which may be part of the
Village.
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F Page 10
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EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Straits
Santana
Exclusive Use:
Row
A.
Provided
notice and cure period, and
Leased Premises
(i)
(ii)
Tenant
Tenant
is
is
not in default of this Lease beyond any applicable
open and continuously operating a business in the
accordance with Tenant‘s Permitted Use, Landlord hereby agrees
not to lease,
Commercial Portion as a Competing Business, provided,
however, that Landlord shall not be obligated to violate
any antitrust, unlawful competition or
unlawful restraint of trade law. A Competing Busine
ss is hereby defined as any full service
restaurant with waiter and waitress service which
primarily serves Malaysian and Singaporean
in
or permit the use of, any portion of the
food.
B. Notwithstanding anything to the contrary in the forego
ing sentence, this provision shall not be
applicable to (i) any tenants in the Commercial
Portion, their successors and assigns, who
currently have leases which permit such tenants to operate
a Competing Business; or (ii) any
hotel located in the Commercial Portion, or
(iii) the park area of the Commercial Portion located
between Buildings 7
8 (the "Park").
&
Roux Louisiana Kitchen
Exclusive Use:
Notwithstanding anything to the contrary contained
in this Lease, provided (i)
not in default of this Lease beyond any applicable notice
and cure period, and (ii) Tenant
is open and continuously operating
a Southem/Fexan cuisine restaurant in the Leased Premis
es in
accordance with the Permitted Use set forth in Section
1.01.0, above, Landlord hereby agrees not
to lease, or permit the use of, any portion of
the Commercial Portion as a Competing Restaur
ant,
provided. however, that Landlord shall not be
obligated to violate any antitrust, unlawful
competition or unlawful restraint of trade law. In
the event of Transfer under Article 15 of the
Lease, the provisions set forth in this Addendum
shall be null and void and of n0 further force
or
effect.
“Competing Restaurant” is hereby defined as
any full service restaurant (1) which
provides sit down table service for patrons utilizin
g waiters and waitresses,
whose
Tenant
is
V
A
(2)
menu
of more than twenty-five percent (25%) of
(a) Southern so-called “comfort type” food
items such as those types of items as shown on
the menu attached hereto as Exhibit G and
(b) local
food items that would be found in Southern Louisia
na restaurants such as, by way ofexample
only
K Paul‘s, and (3) that has an average per customer check (including food and
beverage) of between
Fifieen Dollars ($15.00) and Thirty Dollars
($30.00) ("Average Customer Check"). The Average
consists
Customer Check
shall be increased at the commencement
of the second (2nd) Lease Year, and at
commencement of each Lease Year thereafier, to an amount equal
to the Average Customer
Check for the preceding Lease Year multiplied
by a fraction, the numerator of which shall be the
Consumer Price Index as ofthe most recent date prior to such
adjustment and the denominator of
which shall be the Consumer Price Index as of twelve
months
prior thereto. The Consumer
(12)
Price Index shall be deemed to mean the U.S.
Bureau of Labor Statistics, [Revised] Consumer
the
Price Index, “United States City Average
for Urban Wage Eamers and Clerical
Workers,
Selected Data (1982-84 = 100) all items
(seasonally adjusted)."
If such index shall be
discontinued, then any successor consumer price
index of the United States Bureau of Labor
Statistics, or an alternate means of cost price
measurement reasonably acceptable to Landlord and
Tenant, shall be used. ln addition, provided Tenant is
operating under the Permitted Use as
originally set forth in this Lease, Tenant shall have
the first opportunity to participate in
any
events (including the fannets market) within the Commo
n Area of the Village which event will
include the sale of fried chicken and/or southern
style barbecue chicken. Tenant shall have ten
(IO) business days afier notice fiom Landlord to accept or decline the
opportunity to participate
in such event. [f Tenant fails to respond or decline
s such opportunity, Landlord shall have the
right to engage another vendor to provide such food items.
B. Notwithstanding anything to
applicable to
(i)
any tenants
which permit such tenants
any hotel
D
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in
me
contrary in the foregoing sentence, this provision shall
not be
in the Village, their
to operate a
sucwssors and assigns,
Competing Restaurant; or
(ii)
who currently have leases
any restaurant located within
the Village.
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EXHIBIT F
EXCLUSIVE AND PROHIBITED USES
The Container Store
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided (i)
not in Default of this Lease beyond any applicable cure period and (ii) Tenant is
operating a business in the Leased Premises in accordance with the Permitted Use set forth in
Section 1.01.0 of the Lease, Landlord hereby agrees not to lease. or permit the use of,
any
Tenant
is
portion of the
Commercial Portion as a "Competing Business". A "Competing Business" is
in excess of seven thousand five hundred (7,500) square feet
which primarily sells containers, storage and organizational products.
hereby defined as any business
Notwithstanding anything to the contrary in the foregoing sentence, this provision shall not
be
applicable to any tenants in the Commercial Portion, their successors and assigns, who
currently
have leases which permit such tenants to operate a "Competing Business".
The Counter
Exclusive Use: Notwithstanding anything to the contrary contained in this Lease, provided
(i)
is not in Default of this Lease beyond
any applicable cure period and (ii) Tenant is
Tenant
operating a business in the Leased Premises in accordance with the Permitted
Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business". A "Competing
Business"
is hereby defined as a business that primarily
operates as full service “fast casual”
which primarily sells prepared hamburgers, veggie burgers and/or turkey burgers. For
purposes of this Lease, “primarily” shall mean twenty percent (20%) or more of the
restaurant’s
restaurant
gross annual receipts are derived from the sale of prepared hamburgers,
veggie burgers and/or
Examples of so-called full-service “fast casual” restaurants include,
way of
turkey burgers.
by
example only but not by way of limitation, “Fat Burger", “Johnny Rockets", “Sonic Burger”,
“Red Robin”, “Islands Fine Burgers & Drinks”, “Fuddruckers”, “Polker’s
Gourmet Burgers”,
“Bamey’s Gourmet Burgers", “Taylor's Automatic Refresher”, and/or
“In
& Out Burger".
Notwithstanding anything to the contrary in the foregoing, this provision shall not be applicable
to (i) any tenants in the Village, their successors and assigns, who
currently have leases in effect
which permit such
any
tenants, their successors or assigns, to operate a
"Competing Business"; or (ii)
providing waiter or waitress service, offering a wide variety
items, including hamburgers, veggie burgers and/or turkey burgers, such
as, by
full-service. sit-down restaurant,
of other menu
way of example only but not by way of limitation, tenants operating under the trade names “TGI
Fridays", “Chili‘s“. “Buffalo Wild Wings”, “Mortons”, “The Palm", “Ruby
Tuesdays”, and/or
“Applebee‘s”.
Thea Mediterranean Cuisine
Exclusive Use:
(i)
Tenant
Tenant
is
A. Notwithstanding anything to the contrary contained in this Lease, provided
not in default of this Lease beyond any applicable notice and cure period, and
(ii)
open and continuously operating a Mediterranean restaurant in the Leased Premises in
is
accordance with the Permitted Use
set
fonh
in
Section 1.01 .0, above, Landlord hereby agrees not
to lease. or permit the use of.
any portion of the Commercial Portion as a Competing Restaurant,
provided, however. that Landlord shall not be obligated to violate any antitrust, unlawful
competition or unlawful restraint of trade law. In the event of Transfer under Article 15 of
the
Lease, the provisions set forth in this Addendum VI shall be null and void and of
no fithher force
or effect. A Competing Restaurant is hereby defined as any full service restaurant
(1) which
provides
sit
down
table service for patrons utilizing waiters
and waitresses,
(2)
whose menu
consists 0f more than twenty-five percent
(25%) of Mediterranean food items, and (3) that has an
average per customer check (including food and beverage) of between Fifieen Dollars
($15.00)
and Thirty Dollars ($30.00) ("Average Customer Check"). Tenant acknowledges and agrees that
“Spanish" cuisine shall not be considered the same as “Mediterranean" cuisine for
purposes of
the Lease. The Average Customer Check shall be increased at the commencement of the second
(2nd) Lease Year, and at the commencement of each Lease Year thereafter, to an amount equal
to the Average Customer Check for the preceding Lease Year multiplied
by a fraction, the
numerator of which shall be the Consumer Price Index as of the most recent date prior to such
adjustment and the denominator of which shall be the Consumer Price Index as of twelve
(12)
months prior thereto. The Consumer Price Index shall be deemed t0 mean the U.S. Bureau of
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EXHIBIT F
EXCLUSIVE AND PROHIBITED USES
Labor
[Revised] Consumer Price Index, "United States City Average for Urban Wage
Earners and Clerical Workers, Selected Data (1982-84 = 100) all items (seasonally adjusted)." If
such index shall be discontinued, then any successor consumer price index of the United States
Statistics,
Bureau of Labor
Statistics,
means of
or an alternate
cost price
measurement reasonably
acceptable to Landlord and Tenant, shall be used.
B. Notwithstanding anything to the contrary in the foregoing sentence, this provision shall
not be
applicable to (i) any tenants in the Village, their successors and assigns, who currently have
leases
which permit such tenants to operate a Competing Restaurant; or
within any hotel
(ii)
any restaurant located
in the Village.
Tourneau
Exclusive Use: Provided that Tenant is not in Default under the Lease afier notice
and the
expiration of any applicable grace or cure period and the Wexler family or
its descendents
directly or indirectly controls the Tenant operating the Leased Premises,
Landlord agrees to
obtain Tenant’s written approval, which may unreasonably be withheld, prior to
entering into
any
agreement for the leasing of space within the Village to a tenant operating a retail store
that
includes the sale 0f watches (“Competing Business”), provided that
(i) the Competing Business’
annual retail gross sales fiom the sale of watches frequently equals or exceeds five
percent
(5%)
of the Competing Business’ total annual retail gross sales at its other locations and/or the sales
0f
watches is projected to equal or exceed five percent ofthe Competing Business’ total
retail gross
sales fiom its location in the Village, and/or (ii) the Competing Business’
display of watches
exceeds three percent (3%) of the Competing Business’ total selling floor area
at its location in
the Village.
all
The
limitation in clauses
leases going into effect afier
(i)
and
(ii)
May 20, 2002
ofthe previous sentence
shall
be incorporated
in
regardless of the approval of any particular tenant
Tenant.
Notwithstanding anything to the contrary set forth herein, a “Competing Business”
by
shall not include; (a) the following tenants in the Village, their
successors and assigns, who
currently have leases in effect as of
May 20, 2002: A.G. Ferrari, Amber India, Anne Fontaine,
Taylor Lofl, Anthropologie, Babette, BCBG Max Azria, Bellarmine Barber
Shop, Ben
Jerry’s, Blowfish Sushi to Die For, Borders, Bottega Veneta,
Burberry, Carta, Century
Ann
&
Theatres,
Chili's, Chico's,
Cocola, Cole Haan, Cou, Crate
Thomas Menswear,
&
Barrel, CreAsian, Diesel, Donald Pliner, Eli
Escada, Fenagamo, Footworks, Gucci, Italian Homestyle, Jacadi, Japanese
Weekend, Landau, Lather, Let} Bank, Maggiano's, MaiDo, McRoskey Airflex
Mattress
Company, Mulholland San Francisco, New Balance, Oilily, Optical Illusions,
Pasta
Pomodoro, Peets Cofi'ee & Tea, St. John Knits, Strait's Café, Sur La Table,
Taryn Rose, Theory,
Wolford, Yankee Pier and X-tra;
provided, however, unless required under the provisions of the lease, Landlord
agrees not to
waive, modify, or amend the use clauses in the leases of any of the foregoing tenants
to permit an
assignment or subletting to a Competing Business;
(b) any department store (such as
Bloomingdale’s or Nordstrom’s);
(c) the following retailers: Van Cleef
Arpels, Harry
Winston, Tiffany, Ralph Lauren, Chopard, Banks
Biddle, and Graff; or (d) any retailer who
sells watches under its proprietary name, i._e., under its
trade name or the trade name of a
subsidiary or parent company of tenant (such as Gucci selling Gucci or
Boucheron watches,
Tod's,
Tommy
Bahama, Trend, Vilebrequin, Village
Cafe’,
&
&
Movado
selling
Movado brand
watches), or (e) an exclusive licensee for a brand of watches.
Tenant with prior written notice regarding any Competing Business
requiring Tenant’s approval. Failure of Tenant to respond to Landlord’s
notice within ten (10)
days of receipt of said notice by Tenant shall be deemed approval of the Competing Business
by
Tenant. Landlord warrants and represents that it will in good faith enforce the
provisions of this
Landlord
shall provide
paragraph
3.
Tranguilig — The Aesthetic
& Implant Dental Groug
Exclusive Use:
Notwithstanding anything to the contrary contained in this Lease, provided
(i)
not in Default of this Lease beyond any applicable cure period and
(ii) Tenant is
operating a business in the Leased Premises in accordance with the Permitted
Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
"Competing
Business" is hereby defined as any business which operates as a dental
practice, as defined by
applicable California regulations.
Tenant
is
A
D
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EXHIBIT F
SANTANA ROW
EXCLUSIVE AND PROHIBITED USES
Notwithstanding anything to the contrary
applicable to
leases
(i)
any tenants
in the
foregoing sentence, this provision shall not be
the Village, their successors and assigns,
in
which permit such tenants
to operate a
"Competing Business"; or
(ii)
who
currently have
any Major Tenant.
Union Bank of California
Exclusive Use: Provided Tenant is not in Default of this Agreement beyond
any applicable cure
period and Tenant is operating a the ATMs within the ATMs Sites, Landlord
agrees that during
the Initial Term and any renewal period thereafier and notwithstanding
anything contained in this
Agreement t0 the contrary, no other ATMs may be located within the common area of
the
Village or on the perimeter walls of the buildings in the Village without Tenant's
express
written
consent, which
this
it
may
withhold
Agreement, the Bank Space
in its sole discretion...
shall not
be
in violation
Notwithstanding anything contained
of Tenant's
in
right to exclusively maintain
ATMs in the Common area ifthe Bank Space installs an ATM on its perimeter wall.
Vintage Wine Bar
Exclusive Use: A. Notwithstanding anything to the contrary contained in
this Lease, provided
Tenant is not in default 0f this Lease beyond any applicable notice and cure
period, and (ii)
Tenant is open and continuously operating a business in the Leased Premises
in accordance with
Article IV of the Lease, Landlord hereby agrees not to lease, or
permit the use of, any portion of
the Village as a "Competing Business".
A "Competing Business" is hereby defined as any
business whose primary business is the sale of wine
by the glass.
(i)
B. Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
(i) any tenants in the Village, their successors and
assigns, who currently have
leases in effect; (ii) any Major Tenant at
any time; (iii) any hotel which may be part 0f the
Village; or (iv) any restaurants. ln addition, Tenant
acknowledges and agrees that the exclusive
applicable to
right granted herein to
Tenant
shall not
apply or include any special events held
in the
Area ofthe Village.
Common
Vintage Wine Merchants
Exclusive Use: A. Notwithstanding anything to the contrary
contained in this Lease, provided
(i) Tenant is not in default of this Lmse beyond
applicable
any
notice and cure period, and (ii)
Tenant is open and continuously operating a business in the
Leased Premises in accordance with
Article IV of the Lease, Landlord hereby agrees not
to lease, or permit the use of, any portion of
the Village as a "Competing Business". A "Competing
Business" is hereby defined as any
business which (a)
is
located
Avenues, and (b) primarily
on Olsen Avenue, or on Santana
sells at retail bottled
Row
between Olin and Olsen
wine.
B. Notwithstanding anything to the contrary in the foregoing
sentence, this provision shall not be
applicable to (i) any tenants in the Village, their successors and
assigns, who currently have
leases in effect; (ii) any Major Tenant at any time; or
(iii) any hotel which may be part of the
Village.
Wahoo’s Fish Taco
Exclusive Use:
Notwithstanding anything to the contrary contained in this
Lease, provided (i)
not in Default of this Lease beyond any applicable cure
period and (ii) Tenant is
operating a business in the Leased Premises in accordance with
the Permitted Use, Landlord
hereby agrees not to lease any portion of the Village as a "Competing Business".
"Competing
Tenant
is
A
Business"
is
hereby defined as any business which operates as a quick, casual restaurant
serving
primarily Mexican cuisine, including but not limited to burritos, tacos and
wraps (such as Baja
Fresh, Chipotle Mexican Grill or Sharkeys).
Landlord agrees not to (a) lease to a Competing Business in the permanent
kiosks
located in the Village (spaces 105, 106 and 107), or
(b) permit a temporary kiosk selling tacos,
burritos or wraps to be located within the Common Area surrounding
Building l3 as outlined and
designated as the “No Competing Kiosk Area” on Exhibit A-l.
[n addition,
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SANTANA Row
EXCLUSIVE AND PROHIBITED USES
Notwithstanding anything to the contrary
in the foregoing sentence, this provision shall
not be
any tenants in the Village, their successors and assigns, who curren
tly have
leases which permit such tenants to operate a "Competing
Business"; or (ii) any Major Tenant; or
(iii) to any vender participating in the farmer’s
market located within
applicable to
(i)
the Village.
Yankee Pier
Exclusive Use: A. Notwithstanding anything to the
contrary contained in this Lease, provided
(i) Tenant is not in default of this Lease beyon
d any applicable notice and cure period, and
(ii)
subject to and except for the periods oftime during
which Tenant is permitted to close the Leased
Premises, Tenant is open and continuously operat
ing a restaurant primarily serving American
style seafood in the Leased Premises in accord
ance with Tenant’s Permitted Use, Landlord
hereby agrees not to lease, or permit the use of,
any portion of the Commercial Portion as a
Competing Business, provided, however, that Landlo
rd shall not be obligated to violate any
antitrust, unlawful competition or unlawf
ul restraint of trade law. A Competing Busine
ss is
hereby defined as any full service sit-down restau
rant specializing in and primarily servin
g
American-style seafood at a total dinner price
point, exclusive of beverages, of Twenty-Fiv
e
Dollars ($25.00) to Thirty-Five Dollars
($35.00) per person (“Price Point of Dinner”). The Price
Point of Dinner shall be increased at the
commencement of the second Lease Year, and at the
commencement of each Lease Year thereafier, to an amoun
t equal to the Price Point of Dinner
for the prior Lease Year multiplied
by a fraction, the numerator of which shall be the Consumer
Price Index as of the most recent date
prior to such adjustment and the denominato
r of which
shall be the Consumer Price Index
as of twelve (12) months prior thereto.
The Consumer Price
Index shall be deemed t0 mean the U.S. Burea
u of Labor Statistics, [Revised] Consumer Price
Index. "United States City Average for Urban
Wage Eamers and Clerical Workers, Selected Data
(1982-84 = 100) all items (seasonally adjust
ed)" 1f such index shall be discontinued
, then any
successor consumer price index of the
United States Bureau of Labor Statistics, or
an alternate
means of cost price measurement. shall be used.
B. Notwithstanding anything to the
contrary in the foregoing sentence, this provision
shall not be
applicable to (i) any tenants in the
Commercial Portion, their successors and assign
s, who
currently have leases which permit such
tenants to operate a Competing Busine
ss; or (ii) any
hotel located in the Village.
Yard House Restaurant
Exclusive Use: Notwithstanding anythi
ng to the contrary contained
Tenant is not in Default, and (ii) Tenant
in this Lease, provided
(i)
operating a business in the Leased
Premises in
accordance with the Permitted Use. Landlord
agrees not to lease any portion of the Villag
e as a
“Competing Business." A Competing Busine
ss is hereby defined as any full-service
restaurant
(i.e., with waiter/waitress servic
e) which offers more than twenty—five
(25) difi‘erent kinds of
drafi beer; provided, however that any Irish pub
or similar pub-style restaurant concept that
offers
more than twenty-five (25) different kinds 0f drafi
beer shall not be deemed a Competing
Business. For purposes of this Addendum.
draft beer is defined as beer served
through the use 0f
beer taps, which deliver beer directly from kegs.
Notwithstanding anything to the contrary in the
foregoing, this provision shall not be applic
able t0 any tenants in the Village, their succes
sors and
is
assigns,
who
currently have leases in effect
assigns. to operate a
D
-
which permit such
Competing Business.
M:\LEGALI\PROPERTY\SANTANA\Tsla (Execution Copy).do
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l
tenants, their successors or
1/le 0
Exhibit
F Page
15
PDF Page 71
ADDENDUM l
ASBESTOS CONTAINING MATERIALS
Due to the recent construction of the Leased Premises, Landlord is not aware of any
suspected or presumed asbestos containing materials (“Suspect ACM”) within the
Leased
Premises.
Notwithstanding any other provision in this Lease, in the event that Suspect
is
identified in the Leased Premises, Tenant will not abrade, remove or
engage in any activity that
will disturb the Suspect
without Landlord’s prior written consent. which may be withheld
in Landlord’s sole discretion.
ACM
ACM
In addition to
any other rights of access to the Leased Premises granted to Landlord in
Tenant grants Landlord access to the Leased Premises to inspect, sample
and abate
any Suspect ACM. Landlord hereby agrees to provide Tenant reasonable advance
notice of such
activities, which will occur, to the extent possible. during
non-business hours.
this Lease,
result
Landlord shall indemnify and hold Tenant harmless from
any liability that may
of the presence of ACM introduced into the Leased Premises
by Landlord.
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ADDENDUM fl
CONSTRUCTION ALLOWANCE
Landlord
incurred
shall pay to Tenant a construction allowance for actual construction costs
Tenant
for work performed and materials fiJmished in connection with Tenant‘s
by
Work, as described in Exhibit B attached to the Lease, in an amount not to exceed Forty-Six
Thousand Six Hundred Dollars ($46,600.00). calculated based upon $25.00 per square foot of
Floor Area of the Leased Premises (hereinafier “Construction Allowance”). The
Construction
Allowance represents Landlord’s contribution towards Tenant’s Work and shall be paid
to
Tenant
in
accordance with the following terms and conditions.
Payment of Construction Allowance.
l.
Provided
for
payment
is
Tenant
(i)
is
not in Default at the time the payment
made within one hundred
is
due and
eighty (180) days of the Rent
(ii)
such request
Commencement
Date,
Landlord will pay the Construction Allowance to Tenant in Two
(2) payments (the first such
payment being a "Partial Payment"), with the Partial Payment not to exceed Tenant's
actual
construction costs up to the
sum of Twenty-Three Thousand Three Hundred
Dollars and
No
Cents Dollars ($23,300.00). and the final payment ("Final Payment")
not to exceed Tenant's
actual construction costs up to the sum of Twenty-Three Thousand
Three Hundred Dollars and
No Cents Dollars ($23.300.00). The Construction Allowance will be paid in accordance with
the
following schedule
.
Partial Payments.
2.
Landlord will make the Partial Payment within thirty
(30) days afier the following list of
“Partial Payment Required Documentation”) has
been submitted to
Landlord for Landlord’s approval.
documents (hereinafier
Notice of Partial Completion. Notice
(i)
fiom
Tenant and
certifying in writing to Landlord, that
(a) with respect to the first Partial
(50%) of the Tenant’s Work is completed in accordance with the
its
general contractor
Payment Fifiy percent
plans and specifications
approved by Landlord.
General Contractor Application and Certificate For Payment.
together with AIA Document G703 (a copy of both of which
are attached
as Schedule I) duly completed, executed and notarized
on behalf ofthe Tenant's architect (with
respect only to the AIA Document G702) and general
contractor.
(ii)
AIA Document G702
Lien Waivers. Interim release of lien (on the form attached hereto
executed by the Tenant's general contractor and a copy of interim
releases of lien
(iii)
as Schedule
II)
executed by
all
applicable suppliers, materialmen, contractors and subcontractors
performing
materials of at least Five Thousand and 00/100 Dollars
($5,000.00) in
value on forms supplied by the general contractor for work
completed thus far.
work or providing
ofall contractors,
m
Affidavit of Payment. The affidavit (which
be on the form
executed by the Tenant’s general contractor listing
(a) the names
subcontractors, suppliers and materialmen who provided or supplied,
labor,
(iv)
attached hereto as Schedule
III)
goods and materials to the Leased Premises, and
subcontractors, suppliers and materialmen have been paid
services.
(b) that all listed contractors,
in fiJll for amounts owed to them, as
indicated in such general contractor’s immediately preceding
Application for Payment, for labor,
services. goods and materials provided or supplied to the Leased
Premises.
Final Payment. Landlord will pay the Final Payment within
thirty (30) days afier
Tenant has opened the Leased Premises for business to the public, Tenant's
Work is completed in
accordance with the plans and specifications approved
by Landlord, and Landlord has received
and approved the following list 0f documents (hereinafier, “Final
Payment Required
Documentation”).
3.
Notice of Completion.
(i)
Notice from Tenant and its general
contractor certifying in writing to Landlord, and Landlord approves such
certification, that one
hundred percent (100%) of Tenant’s Work is complete in accordance with the
plans and
specifications approved by Landlord.
M:\LEGAL \PROPER'I'YBANTANAWCSIA (Execution Copy)_docx
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ADDENDUM fl
CONSTRUCTION ALLOWANCE
(ii)
General Contractor Final Application and Certification For
The general contractor's final application for payment on AIA Document G702
together with AIA Document G703 (a copy of both of which are attached
as Schedule I) duly
Payment.
completed, executed and notarized on behalf of the Tenant's architect (with respect
only to the
and general contractor.
AIA Document G702)
M
(iii)
Lien Waivers. Final unconditional release of liens (which
be
on the form attached hereto as Schedule III, 0r a similar form
compliant with Legal
Requirements) executed by the general contractor, and a copy of final unconditional
releases of
liens executed on behalf of all applicable suppliers,
materialmen, contractors and sub-contractors
performing work or providing materials of at least Five Thousand and
00/100 Dollars
($5,000.00) in value on forms supplied by the general contractor.
m
(iv)
Affidavit of Payment. The affidavit (which
be on the form
attached hereto as Schedule IV) executed by the general contractor
(a) listing the names of all
contractors, subcontractors, suppliers and materialmen who
provided or supplied,
labor, services,
goods and materials to the Leased Premises, and
(b) confirming that all listed contractors,
subcontractors, suppliers and materialmen have been paid in full for
the labor, services, goods
and materials provided or supplied to the Leased Premises as ofthe
date ofthe affidavit.
Certificate of Occupancy.
(v)
of Occupancy
for the
A permanent or temporary Certificate
Leased Premises.
Form W-9 Request for Taxpayer Identification Number and
A Form W-9 with Tenant’s taxpayer identification number completed.
(vi)
Certification.
As-Built Plans.
(vii)
in
.pdf 0r .dwg
(CADD)
One
(
l)
copy on
CD of Tenant’s “as-built” plans
format.
Landlord may withhold the Construction Allowance until
has been satisfactorily submitted to and approved
by Landlord.
4.
all
Required Documentation
Third Persons.
Under no circumstances shall this Lease, or any Addendum
thereto, be construed
confer upon any third person or entity any right or cause
of action against the
to
Landlord or Tenant,
including, but not limited to,
5.
all
contractors, subcontractors. suppliers, laborers or materialmen.
Use of Construction Allowance.
Tenant shall use the Construction Allowance only for the construction
and installation of
Leasehold Improvements in and to the Leased Premises. It is
specifically understood and agreed
that (i) the Construction Allowance may not and
shall not be used for the purchase and/or
installation of Tenant‘s Property, and (ii) Landlord
shall not be required to pay the Construction
Allowance unless the Construction Allowance was used for the
construction and installation of
Leasehold Improvements. as evidenced by the Required Documentation.
6.
Landlord’s Failure to Pay Construction Allowance.
In the event Landlord
fails to
ten (10) days after receipt of notice
pay any portion of the Construction Allowance within
from Tenant that the same is past due, and provided
Tenant has submitted the Required Documentation as set forth herein, Tenant
may deduct
any such amounts including interest at the rate of ten percent (10%) from its
monthly
Minimum Rent next due and payable.
M.\LEGAL \PROPERTYBANTANMTmIa
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made
for
paymmt,
as
is
in
PROJECT:
VIA ARCHITECT:
HM
“M
$0.00
$0.00
ADDITIONS
connection with the Contract.
attached.
shown below,
AJA Document G703,
Line 6)
Owner
~
-
AIA
DOCUMENT G702
APPLICATION No:
pERIOD T0:
mg ONE op
payment shown
of:
day
County
of
herein is
Date:
to:
now due.
(he
allfigures an
mas
(his
CONTRACTOR
ARCHITECT
OWNER
Distribution
E
E
E
E
E
certifies that to the best of the Contractor's knowiedgc,
PROJECT No s:
CONTRACT DATE:
The undersigned Contractor
this
that current
infom1ation and belief the Work
covered
this
Application
for
by
Payment
has
been
completed in accordance with the Contract Documents, that all amounts have been paid
by
the Contactor for Work for whidl previous Certificates for Payment were
issued and
me
payments received from the Owner, and
CONTRACTOR:
By:
Stale of:
to before
ARCHITECT'S CERTIFICATE FOR PAYMENT
My Commission expires:
Subscribed and sworn
Notary Public:
0.00
of
Owner
[hat to lhc bcsl
to thc
accordance wxlh the Contract Documents, based on nn-suc obscrvauons and the data
ln
Initial
Documents. and the Contractor
amount applied
the Contract
comprising thc applicalmn, lhc Architect certifies
wnh
AMOUNT CERNFIEI)
accordance
has progressed as indicated,
in
Work
is
payment ol‘lhc
Work
Ardu'lect's knowledge, Infonnalion and belieflhc
entitled lo
the quality of lhc
is
AMOUNT CERTIFIED ........... $
(/lllach
changed Io conform with (he amount cerhfled.)
certified dlfl'erxfrom the
is
are without
payable only to the
Date:
AMOUNTCERTIFIED
(‘tmllnuulion Sheet that are
explanation {famounr
The
herein. Issuance.
.
newvonx AVE N w., WASHINGTON. Dc 20005-5292
Authontlcity from the Licensee.
1735
paymmt and acceptance ofpayment
Owner or Contractor under this Contract.
not negotiable.
and anthe
ARC H ITECT:
Application
By:
is
named
This Certificate
Contractor
prejudice to any rights of the
Documents
me AMERICAN INSTITUTE or ARCHITECTS.
Certification o f
$0.00
DEDUC’HONS
0.00
0.00
0.00
HH
APPLICATION AND CER'HFICATION FOR PAYMENT
T0 OWNER;
FROM CONRACTOR:
CONmAcr FOR:
is
ORIGINAL CONTRACT SUM
Net change by Change Orders
l
CONTRACT SUM TO DATE (Linc i 2)
TOTAL COMPLETED & STORED T0
DATE
(Column G on G703)
+ 5b or
D + E on G703)
of Stored Material
%ofComplctcd Work
°/o
(Column
_
_
RETAINAGE:
a.
b.
(Column F on G703)
|
Column ofG703)
Total Retainagc (Lines Sa
Total in
TOTAL EARNED LESS RETAINAGE
(Line 4 Less Line 5 Total)
LESS PREVIOUS CERHFICATES FOR
less
PAYMENT (Line 6 from prior Certificate)
CURRENT PAYMENT DUE
BALANCE TO FINISH. INCLUDING RETAINAGF.
(Line 3
CHANGE ORDER SUMMARY
previous months by
Month
I
“WM”
CONTRACTOR'S APPLICATION FOR PAYMENT
Application
.
.
.
Continuation Sheet,
bWN—
.
‘
.
.
.
.
in
Total changes approved
Total approved this
TOTALS
NET CHANGES by Change Order
-
AIA DOCUMENT G702 APPLICATION AND CERTIFICATION FOR PAYMENT 1992
EDITION AIA 01992
Users may obtain validation of this document by requesting a completed NA Document
0401
M:\LEGAL l\PROPERTY\SANTANA\TcsIa (Execuion Copy).docx
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ll
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CONTINUATION SHEET
is
attached.
AIA
PESENTLY STORED
(NOT IN D OR E)
MATERIALS
DOCUMENT G703
containing
WORK COMPLETED
may apply.
AIA Documem G702, APPLICATION AND CERTIFICATION FOR PAYMENT,
SCHEDULED
VALUE
$0.00
APPLICATION NO:
APPLICATION DATE:
PERIOD TO:
ARCHITECT'S PROJECT NO:
TOTAL
COMPLEIED TO
DATE (D+E+F)
-
$0.00
Certificatlon of
Documents Authenticlty
Pig;
0F
BALANCE
TO FINBH
mmmm
FROM PREVIOUS
APPLICATION (D+E)
variable retainage for line items
are stated to the nearest dollar.
Contractor's signed cenification
amounts
on Contracts where
WORK
RAW
DESCRJPFION OF
l
In tabulations below,
Use Column
I
cx
Users may obtain validation of thls document
by requesting of the llcense a completed AIA Document D401
M:\LEGAL l\PROPERTY\SANTANA\Tesla (Execm'on Copy)‘do
VARIABLE
RATE)
RETANAGE
(1F
Addendum
ll
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ADDENDUM fl
CONSTRUCTION ALLOWANCE
SCHEDULE II
California
CONDlTIONAL WAIVER AND
RELEASE UPON PROGRESS PAYMENT
OWNER:
GENERAL CONTRACTOR:
PROJECT NAME:
STATE 0F CALIFORNIA
COUNTY 0F
Upon
receipt
S
by the undersigned of a check
from
in
payable to
properly endorsed and has been paid
by the bank upon which
any mechanic’s lien. stop notice, or bond
it
is
drawn,
this
release
(Owner) located
right
the
at
covers
sum of
undersigned
has
on
the
job
of
(Project) to the following
extent.
This release
the
and when the check has been
document shall become effective to
a progress payment for labor, service
s, equipment or materials furnish
ed
(firm undersigned contracted with) through
to
(date of
and does not cover any retentions retaine
d before or afier the release date;
extras furnished before
the release date for which
payment has not been received; extras or items
furnished afier the release date. Rights
based upon work performed or items
fumished under a mitten change order
which has been fully executed
by the
parties prior lo the release date are
covered by this release unless specifically
reserved by the claimant in this release
.
this release) only
This
release of any mechanic's lien, stop
notice. or bond right shall not otherw
ise affect the contract rights,
including rights between parties
to the contract based upon a resciss
ion. abandonment, or breach of the
contract, or
the
right 0f the undersigned to recove
r
compensation for fumished labor, service
s, equipment, or material covered
by
equipment, or material was not compensated
by the progress payment.
document relies on it, said party should verify
evidence of payment to the undersigned.
this release if that furnished
labor, services,
Before any recipient of this
Swom to and subscribed
before
FIRM OR COM PANY:
me this ___ day of
20_.
By:
Print
Name:
Notary Public
(NOTARY SEAL)
My
Commission
Its:
Expires:
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ADDENDUM fl
CONSTRUCTION ALLOWANCE
SCHEDULE III
WAIVER AND RELEASE UPON FINAL PAYMENT
California
UNCONDITIONAL WAIVER AND
RELEASE UPON FINAL PAYMENT
OWNER:
GENERAL CONTRACTOR:
PROJECT NAME:
STATE OF CALIFORNIA
COUNTY 0F
The undersigned has been paid
in full for all labor, services,
undersigned
(firm
(Owner) located at
and does hereby waive and release
any right Io a mechanic's
bond on lhcjob. except for disputed claims for
extra
material
equipment or material furnished to
with)
on
me job
of
contracted
(Project)
stop notice, or any right agains‘ a labor
and
in the amount of S
lien,
work
NOTICE:
THIS DOCUMENT WAIVES RIGHTS UNCONDIT
lONALLY AND STATES THAT YOU
HAVE BEEN PAID FOR GIVING UP THOSE RIGHT
S. THIS DOCUMENT IS ENFORCEABLE
AGAINST YOU IF YOU SIGN IT. EVEN IF YOU HAVE
NOT BEEN PAID. IF YOU HAVE NOT BEEN
PAID. USE A CON DITIONAL RELEASE FORM
.
Witness Whereof, the undersigned
signatory, acting for and on behalf of the
firm or company
of its laborers, subcontractors, and supplie
rs, has placed his hand and seal this
day of
20__.
In
listed
below and
‘
all
FIRM OR COMPANY:
By:
Sworn
lo
before
me this
and subscribed
Print
Name:
day of
.
20_.
lls:
Notary Public
(NOTARY SEAL)
My Commission Expires:
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ADDENDUM fl
CONSTRUCTION ALLOWANCE
SCHEDULE
IV
GENERAL CONTRACTOR AND SUB-CONTRACTOR AFFIDAVIT
State of
County of
(1)
(2)
being first duly sworn.
of
under oath deposes and says that he/sh
e is
(Contractor) which has been contracted
for
(3)
construction of
(4) (the Project) with
following store location (5) (store number
).
(tenant
name)
at the
That, to complete the Project. only the
following companies. businesses.
and individuals have been
contracted by Contractor. and have furnis
hed, or are furnishing and preparing
materials for, and have
done or are providing labor on the Project. As
indicated below, any and all contractors,
subcontractors.
laborers. suppliers and materialmen
that have provided labor, material or
services to the undersigned for
use or incorporation into the construction of
the improvements to the Project have
been paid and satisfied
in full; there are no outstanding
claims of any character arising out of. or
related to, undersigned's activities
on. or improvements to, the Project.
This statement
payments
presentiy
is
made
for the Project.
due
all
to
and
(tenant
name)
to obtain the release of contra
ct
a full. true and complete statement of amoun
ts paid to date. and amounts
companies. businesses and individuals involv
ed in this
is
project.
SUBCONTRACTORS I
SUPPLIERS
TRADE
AMOUNT PAID TO
DATE
CONTRACT BALANCE
Company Name
Address
Citylsme/Zip
Code
Telephone Number
Subscribed and sworn to before
me this
___day of
20__
Signed By:
Tiue:
Notaty Public
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5.12m m
TERMINATION RI_G_H_T_
Provided Tenant
is not in material monetary Default
(i.e., a Default, the value of
equal to or greater than one (1) month’s Minimum
Rent) beyond any applicable
notice and cure period (nor has any event occurred and
remained uncured that, with Notice and
an opportunity to cure, could become a Default), has
been open for business and operating
pursuant to the terms 0f the Lease throughout the Term
and subject to compliance with the terms
of this Addendum III, Tenant shall have the one-time right
to terminate the Lease upon prior
written Notice to Landlord (“Termination Notice”
), which Termination Notice shall be
(a) given,
if at all, not later than the final
day of the fourth (4m) Lease Year, and (b) accompanied
by a
payment (the “Termination Payment”) equal to the then-unamort
ized portion of the Construction
Allowance (amortized on a straight-line basis across
the initial ten (10) year Lease Term).
which
is
If
Tenant timely exercises
termination right hereunder, Tenant agrees it shall
continue
and conditions of the Lease through and including
the
last day of the fifih (5m) Lease Year, whereu
pon Tenant shall quit and vacate the Leased Premises
(and the PCA) in the condition required
by the Lease.
its
to operate in accordance with the terms
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ADDENDUM XI
TENANT’S PARKING/CHARGING AREA
l.
The location of Tenant's parking and charging area (hereinafier
the "PCA") shall
be deemed to be that area designated as “4 Dedicated
Parking Stalls” on the site plan attached
hereto as Exhibit A of this Lease. Tenant hereby
agrees that it shall not utilize any other area for
the storage or charging of its vehicles other than
that area approved by Landlord in accordance
with Tenant’s Plans. In addition, in no event shall Tenant
use the Leased Premises, the PCA or
any portion of the Village for any purpose that would violate this Lease
including, specifically,
the provisions 0f Exhibit F.
The
2.
parties agree that the use of the PCA shall
be subject to the existing rights of
other tenants of the Commercial Portion, but
that the PCA shall
be clearly marked for Tenant’s
use using signage mutually agreed
by Landlord and Tenant and subject to the other provisions of
this Addendum IV. Subject to the rights
of existing tenants, Tenant shall also have the
right, at
its sole cost and expense, to
install gates on the PCA, which gates
shall be (a) subject to
(i) the
prior written consent of Landlord, not to
be unreasonably withheld, delayed or conditioned,
and
(ii) the prior written consent of applicable
governmental authorities; and
compli
ant
with
(b)
Legal Requirements.
3.
Tenant's use of the
the Lease, and shall be subject to
If Tenant's use
remove
all
of
of the
its
PCA
PCA
all
shall be in accordance with the terms
and conditions of
codes and regulations of any and all governing
authori
ties.
violation of any code requirements or regulat
ions, Tenant shall
vehicles and any other improvements locate 'm
d
the PCA,
is in
at its
ten (10) days prior written notice from
Landlord and Tenant‘s right to use the
terminated.
expense, upon
PCA
be
shall
Tenant specifically agrees that the design, manufa
cture and method of installation
improvements located within the PCA, shall
be approved in advance in writing
by
4.
for all
Landlord.
3.
Tenant agrees to maintain the PCA in an attract
ive and clean condition in
accordance with the general character of the Comme
rcial Portion and otherwise in accordance
with the maintenance responsibilities of Tenant
set forth for the Leased Premises in
Article X of
the Lease. Tenant shall bear sole respons
ibility for maintaining and cleaning the PCA
and shall
keep the same free of trash and debris caused
by its customers seated in this area. In the event
Tenant fails to maintain the PCA, then Landlo
rd shall have the right to do so on Tenant's
behalf
and at Tenant's expense, as set forth below. payabl
e as Additional Rent.
6.
maintain the
Notwithstanding anything
PCA, Landlord
shall notify
in the
Lease to the contrary,
in the
Tenant that Tenant has breached
its
event Tenant
fails to
obligation to
PCA and, ifTenant fails to cure its breach within the following twenty
—four (24)
hours, Landlord shall have the right to maintain
the PCA and charge Tenant as Additional
Rent
Two Hundred Fifly Dollars ($250.00) per day for each day therea
fler, until Tenant provides
Landlord with adequate assurance that Tenant will
adhere to its maintenance obligations
specified herein. In the event the Two Hundred
and Fifiy Dollar ($250.00) charge is insufficient
to reimburse Landlord for the actual, reason
able cost of maintaining the PCA, Tenant shall
be
obligated to reimburse Landlord the actual cost
for
maintain the
such maintenance.
7.
Should Tenant receive three (3) notices for failure
to maintain the PCA as herein
month period, Landlord shall have the right to revoke Tenant's
use of
required in any twelve (12)
the PCA.
8.
Tenant
shall not place in the public trash receptacles
in the
Commercial Portion any garbage or refilse which originates
Common Areas of the
fiom the PCA.
Tenant shall indemnify and hold harmless Landlord
fiom any and all liability that
use ofthc PCA, and Tenant’s indemnity and insura
nce
obligations under the Lease shall respond thereto
.
9.
may arise as a result of Tenant's
10.
understood and agreed by and between the parties
hereto that efi'ective upon
all of the terms and conditions ofthe
Lease shall apply to the
PCA as though the PCA was originally a portion ofthe Leased Premises as
defined in the Lease.
Accordingly, for all purposes under the Lease except as
to the payment ofRent, the PCA shall
be
deemed to be a pan ofthe Leased Premises and, unless
specifically stated
full
It is
execution of this Agreement,
otherwise,
M:\LEGALI\PROPERTY\SANTANA\T5I3
all
(Execution Copy)‘docx
Addendum VI Page
1
PDF Page 81
W.
El
TENANT’S PARKING/CHARGING AREA
references in the Lease to the Leased Premises
shall be
shall not so state).
deemed
to include the
same
PCA (even
if
the
ll. Landlord shall have access to the
as needed in order to maintain properly and
repair the Village and other areas therein. Such
right of access shall be exercised
by Landlord so
as to keep to a minimum any interference with Tenant
's business.
PCA
Notwithstanding the forgoing, during the term of
the Lease, Landlord shall have the
change the location of the PCA from its presen
t location to another location in the
Village, which location shall be reason
ably agreed by the parties; provided, howev
er, any
changes to the location of Tenant’s parking areas
by Landlord shall be limited to covered parking
12.
right to
structures located within the Village.
l3. Landlord reserves the right, from
time to time, to temporarily restrict access
to the
parking areas, including the PCA, to perfo
rm maintenance thereof; provided, howev
er, that
Landlord agrees that such restriction shall be on
a
temporary
l4. Tenant’s rights with respect
to the
assigned or otherwise transferred.
PCA
basis.
are personal to Tenant and
may
not be
15. From time to time, upon reques
t therefor by Landlord, Tenant shall
remove and
remediate to Landlord’s satisfaction, the spilla
ge of any oil or other fluid or substance,
whether in
the PCA or the Leased Premises. In all
events, this obligation shall be performed
on or prior to
the Termination Date and the obligation
shall survive the expiration or earlie
r termination of the
Lease.
M:\LEGAL1\PROPERTY\SANTANA\T$Ia
(Execution Copy).docx
Addendum VI Page 2
PDF Page 82
MM
X
LEASE CONTINGENCY
Landlord and Tenant hereby agree that this Lease
shall be contingent upon the issuance of
necessary governmental permits and licenses
in order for Tenant to commence
with the
performance of Tenant‘s Work, the issuance 0f
which
all
will also
confirm
the permissibility of the
Permitted Use (the “Building Permits”). Tenan
t shall “diligently pursue” the issuance of the
Building Permits. Tenant shall be deemed to
be diligently pursuing the issuance of the Build
ing
Permits if Tenant is in compliance with the follow
ing: (i) Tenant submits the Plans to Landl
ord
within the time frames set forth in Exhibit
B, “Tenant Improvements” Section, “Plan Submittal
Procedure” Subsection. First (ls‘) Parag
raph, (ii) Tenam submits t0 the proper gover
nmental
authorities all required documents, plans
and specifications, detailed in full and in compl
iance
with all governmental requirements, for the issua
nce of the Building Permits, as required
and
by
within the required time periods set forth
in Exhibit B, “Tenant Improvements”
Section, “Plan
Submittal Procedure” Subsection, Final
Paragraph, simultaneously providing copie
s of all such
submissions to Lanflord; (iii) Tenant
pays in a timely manner all fees required
by the
governmental authorities in order for the Build
ing Permits to be issued, subject, howev
er, to
an amount not to exceed Five Thousand
and 00/100 Dollars
($5,000.00) for any additional costs or expenses
incurred by Tenant to obtain a variance
or any
other special governmental approval grant
ing Tenant permission to operate in the
Leased
Premises for the Permitted Use (as define
d in Section 1.01 .N of the Lease), which cost would
not
typically be incurred by Tenant in pursuit of
its Building Permits in the event
that such variance
or other special governmental approval were
not necessary, which reimbursement shall
be made
within thirty (30) days following a reque
st therefor (accompanied
by invoices marked “paid”);
(iv) Tenant cooperates with the government
al authorities by (a) submitting additional infor
mation
or documents, as may be required from
time to time, within ten (10) days following
request
therefor, and (b) responding to
any questions or comments from governmental author
ities within
ten (10) days following oral or writte
n notice to Tenant of said questions
or comments, as the
case may be; (v) Tenant, at its sole cost
and expense (subject to the reimbursement descr
ibed in
Subsection (iii) above), hires a permit
expediter if required by Landlord; and
(vi) Tenant keeps
Landlord advised of Tenant’s progress
in obtaining the issuance 0f
the Building Permits.
Landlord shall cooperate with Tenant, at no out-o
f-pocket expense to Landlord (but subjec
t to the
reimbursement described in Subsection
(iii) above), in securing the issuance
of the Building
Permits. Upon Landlord’s \wittcn
request, Tenant shall provide Landlord
with written notice of
(x) the actual filing date for the Building
Permits, together with a date stamped
copy of the first
page of Tenant’s application from applic
able governmental agencies showing
the actual filing
date for the Building Permits, and
(y) the actual date the Building Permits are issued, which
notice shall be accompanied
by a copy of the Building
reimbursement from Landlord
in
Permits.
Tenant has diligently pursued the issuance
of the Building Permits, but the Building
Permits are not available for issuance to
Tenant within ninety (90) days from the date
Tenant
initially applies for the Building
Permits, Tenant shall have the right to
terminate this Lease by
giving Landlord thirty (30) days‘ Notice
at any time following the expira
tion of the foregoing
ninety (90) day period. Notwithstanding the
foregoing, Landlord shall have the right,
but not the
obligation, to nullify Tenant's notice
of termination by providing Tenant with
written notice
(“Landlord’s Notification”) of its
intent to pursue the issuance of the
Building Permits on
Tenant’s behalf, and at Landlord’s expen
se. Tenant shall cooperate with Landlord
in securing
the issuance of the Building Permits.
lf Landlord is unable to obtain the
Building Permits on or
before sixty (60) days following the date 0f Landl
ord‘s Notification, then either party shall
have
the right to terminate the Lease
by giving Notice to the other on or before thirty
(30)
days
following the expiration of such
sixty (60) day period. Finally, in the
event that the Build
If
ing
Permits are not available for issuance to
Tenant within one hundred eighty (180)
days from the
date Tenant initially applies for the Build
ing Permits, but Tenant has not elected
to terminate this
Lease in accordance with this paragraph,
Landlord shall have the right to terminate
the Lease
upon thirty (30) days’ Notice to Tenant of its intent
thereof.
In the event of a termination occur
ring pursuant to this Addendum
V, Landlord shall
reimburse Tenant, within thirty (30) days follo
wing a request therefor (accompanied
by invoices
marked “paid”), for Tenant’s actual, out-of-pocket costs
incurred in the production of
(a) for the
production of plans, specifications, worki
ng drawings and any other construction docum
ents for
the Leased Premises, and (b) for any permi
t expediter himd by Tenant pursuant to
Subsection (v)
above, in an aggregate amount not to excee
d Forty-Five Thousand and 00/100
Dollars
($45,000.00).
M.\LEGALI\PROPERTY\SANTANA\T5|3
(Execution Copy).docx
Addendum
V
Page
1
PDF Page 83
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
LEASE MODFFICATION AND EXTENSION AGREEMENT
THIS LEASE MODIFICATION
made thisépndday 0f Ooh) D4,,»
COUNTRY VILLAGE,
LLC,
AND EXTENSION AGREEMENT (“Agreement”)
2012, by and between FRIT SAN JOSE TOWN AND
.
a California limited liability
STREET R.ETAJL, INC,
Delaware corporation, trading as Tesla (“Tenant").
WHEREAS,
November
3,
2010
managing member,
TESLA MOTORS, INC, a
company, by
a Maryland corporation (“Landlord”), and
its
Landlord and Tenant entered into that certain Lease Agreement dated
(hereinafter referred to as the “Lease”), pursuant to
which Tenant leased
fiom
commonly
Landlord approximately one thousand eight hundred sixty-four (1,864) square feet
known
as Store #3035 ("Original Leased Premises”), located at Stevens Creek Boulevard and
Winchestcr Boulevard, San Jose, California 95128, in a shopping dcvelopment known as
Santana Row Shopping Center (“Village”); and
WHEREAS,
the current
Term ofthe Lease
expires 0n January 3
l,
2021; and
WHEREAS, the parties hereto desire to modify the Lease by relocating the Original
Leased Premises t0 thc “cross-hatched” space indicated on the site plan attached hereto as
Exhibit A-l, comprising approximately five thousand six hundred five (5,605) square feel,
known as Store #3010 and located within the Shopping Center (“Relocated Premises”), aIl as
more specifically
detailed below.
WHEREAS,
amend and supplement
the parties hereto desire t0
thc Lease,
all
as
hereinafier provided.
NOW THEREFORE,
in
consideration ofthe foregoing and the
sum ofTen
Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency ofwhieh are
hereby acknowledged, and the mutualpromises contained hcrcin, thc parties hereto, intending
to
be legally bound, agree as follows:
1)
this
Recitals Each 0f the foregoing recitals and representations form a material part of
Agreement and are incorporated herein by
this reference.
2) Dclivcjv of Relocated Premises. Landlord hcrcby agrees t0 deliver the Relocatcd
Premises during the period fi'om January l, 2013 and February 15, 2013 (‘Delivery Period“), and
Tenant agrees to provide Landlord with at least thirty (30‘) days’ prior written notice of the date
Tenant will accept delivery ot‘the Relocated Premises during the Delivery Period (“Relocation
Date”).
3)
Relocatcd Premises.
From and aficr
Relocation Date, the Leased Premises shall be
to mean and rcfcr t0 both the Relocated Premises and the Original Leased Premises.
Commencing on the earlier offi) the date upon which Tenant initially opens for business in the
deemed
one hundred twenty (120) days fi-om and aficr the Relocation Date
(“Relocation Rent Commencement Date”), instead of Store #3035 as designated in Section
1.01.A. and Exhibit A ofthc Lease, the Leased Premises shall be deemed to mean and refer to
only the Relocated Premises and Exhibit A attached hereto Shall be substituted for the present
Exhibit A attached to the Lease with thc same force and effect as if thc Relocated Premises had
Rclocated Premises 0r
(ii)
been leased originally to Tenant and Exhibit A attached hereto had originally bccn attached t0
the Lease. Commencing on the Relocation Rent Commencement Date, the Floor Area of the
Leased Premises shall be deemed to be five thousand six hundred five (5,605) square feet and
Tenant’s Proportionate Share shall bc adjusted accordingly. Thc foregoing abatement 0f Rent
represents Landlord’s fijll and final contribution toward
business from the Relocatcd Premises.
4)
Term.
Effective
on
work required by Tenant
the Relocation Rent
to provide for a ten (10) year
Commencement
NILLEGALILPROPERTHSANYHM4 ‘LMALLRELOCATEUCIIO
7
Date, the
term commencing 0n
shall be extended
Corrunencement Date and terminating one hundred twenty (120)
Lease
Fmal I(LleDacr
full
t0
open
for
Term of the
the Relocation Rent
calendar months thereafier
PDF Page 84
(“Extended Term”), subject
as
t0 all
0fthc terms, covenants and conditions contained
in tho
Lease
modified hereby.
Lease Year. Notwithstanding anything
5)
t0 the contrary contained in the Lease, as
0fthe Relocation Rent Commencement Datc, each Lcasc Year shall bc defined as follows: (i) if
the Relocation Rent Commencement Date occurs 0n the first day 0f a calendar month, the period
Rem Commencement Date and terminating on the last day ofthe
month thereafier, and each succeeding period of twelve (12) full calendar
months during the Term; or (ii) if the Relocation Rent Commencement Date does not occur 0n
the first day 0f a calendar month, then the period beginning 0n the first day 0f the next
succeeding calendar month and terminating 0n the last day 0f the twelfth full calendar month
thereafter, and each succeeding period ofnvelve (12) full calendar months during the Term.
beginning on the Relocation
twelfth full calendar
throughout the Extended
Lease
Commencement Dale and continuing
Minimum Rent payable by Tenant under the
Rent. Effective 0n thc Relocation Rent
6)
Term 0f the Lease,
the
be as follows:
shall
M
Annually
Monthly
l
$420,375.00
$35,031.25
Period
Lease Year
Lease Year 2
$432,986.25
$36,082.19
Lcasc Year 3
Lease Year 4
$445,975.83
$37,164.65
$459,355 10
$38,279.59
Lease Year 5
Lcasc Ycar 6
$473,135.75
$39,427.98
$487,329.82
$40,610.82
Lease Year 7
$501,949.71
$41,828.14
Lease Year 8
$517,008.20
$43,084.02
Lease Year 9
Lease Year 10
$5325
8.44
$44,376.54
$548,493.99
$45,707.83
1
A11 payments 0f Rent shall continue t0 be paid in the intervals and
manner required under
the Lease.
Tenant Improvements. Tenant agrees t0 provide all construction work and
improvements [0 the Relocated Premises in accordance with its obligations set forth in Exhibit
attached hereto and made a part hereof. Tenant accepts thc Relocated Premises in its “as is”
7)
B
it being expressly understood that Landlord has made n0 representations 0r wananties
with respect t0 such premises and that Tenant has inspected same and found such premises t0 be
satisfactory. Tenant shall opcn thc Relocatcd Premises for business to the public, fuily fixturcd
condition;
and merchandised, 0n the Relocation Rent
Work
forth
set
Exhibit
in
in
the original
Addendum
9)
B
accordance with
Allowance
II
Date.
1n consideration 0f Tenant's performance of Tenant’s
Construction Allowance.
8)
Commencement
attached hereto,
Addendum H
Landlord shall pay Tenant a Construction
attached hereto, which shall replace in
its
entirety
ofthe Lease.
Surrender 0f Original Leased Premises. Landlord and Tenant agree that Tenant shall
remove all 0f its inventory and movable trade fixtures from
close for business to the public and
Leased Premises by the close ofbusiness 0n the fifih (5th) day afier the Relocation
Rent Commencement Date and leave the premises broom clean and both the exterior and interior
in good condition and repair, except for ordinary wear and tear. Landlord shall be entitled to
possession ofthe Original Leased Premises by the close ofbusiness 0n the fifth (5m) day afier the
the Original
Date. In the event Tenant fails t0 remove its fixtures, as
five (5) days after Tenant‘s receipt ofwrittcn notice from Landlord, said fixtures
shall forthwith be dccmcd abandoned and become the property ofLandlord. Except as set forth
heroin, no permanently attached fixtures or portions of the Original Leased Premises including
but not limited lo the walls, HVAC system, storefront and related items shall be removed under
any circumstances by Tenant. 1f Tenant fails IO vacate the Original Leased Premises and
Relocation Rent
Commencement
aforesaid within
surrender possession thcrcofto Landlord on the fifth (5m) day afler the Relocation Rent
Commencement Date, such failure shall be deemed a Default 0fthc Lease (without the necessity
ofnotice or
demand
under the Lease or
fiom Landlord)
at
law or in
subjecting Tenant t0
a1]
ofLandlord‘s rights and remedies
equity. Additionally, Landlord shall also be entitled t0 recover
all
damages, direct 0r indirect, including lost business opportunity regarding any prospective
ofTenant‘s failure to
tenant(s) for the Original Leased Premises, suffered by Landlord as a result
N'LLEGALI1PROPERTYL§AWANA1MALRELOCATEle/a
-
Final {073712.Dna
-2-
PDF Page 85
vacate thc Original Leased Premises
011 the
date that
is
the
[h
fifih
(5
)
day aficr thc Relocation
Rent Commencement Date.
10) Utilifl Charges. Tenant agrees to place [he electric, water, gas and/or
utility
meters for the Relocated Promises
in
Tenant’s
within five (5) days ofthe Relocation Date but
Tenant’s Work 111 the Relocated Premises.
ll)
in all
name with
any other
thc appropriate utility companies
events prior to the
commencement ofany of
HVAC Maintenance. Notwithstanding anything in the Lease t0 the contrary, Tenant
HVAC system serving the Relocatcd Premises in the same manner as requ ired
shall maintain the
under Section 10.02 ofthc Lcasc for thc Original.
12) Recanturc
ofReIocatcd Premises. Tenant acknowledges
Agreement, thc Relocatcd Prcmjscs
is
that as
ofthc date ofthis
subject to occupancy rights by an existing tenant (the
“Existing Tenant”). Landlord and Tenant hereby agree that this Agreement shall bc contingent
upon Landlord recapturing possession ofthe Relocated Premises fi‘om
the event Landlord does not obtain possession
ofthe date offull execution ofthis Agreement,
no further force and
effect,
the Existing Tenant. In
of the Relocated Premises within
this
Agreement
shall
become
months
six (6)
null and void and
0f
and neither party shall have any further rights or obligations
hereunder.
l3)
N0
Kiosk Area. The “No Kiosk AIea” referred to
depicted on the Exhibit
A
attached to the Lease shall be and
Section 6.02 ofthe Lease and
hereby replaced with the “No
in
is
Kiosk Area" depicted 0n thc Exhibit A attached hereto, which has replaced the Exhibit
attached to the Lease pursuant to Paragraph 3 above.
A
Auto Loading. Thc “Car Drop OffArea” and “Tenant’s Path for Car Delivery"
referred to in Section 6.02 of the Lease and depicted on Exhibit A attached to the Lease shall bc
and hereby are replaced with the “Car Drop Off Area” and “Tenant’s Path for Car Delivery”
14)
A attached
depicted on the Exhibit A attached hereto, which has replaced the Exhibit
Lease pursuant to Paragraph 3 above.
15) Termination Right.
From and afier
thc date hereof,
any corresponding termination right thereunder)
Addendum IH
16)
attached hereto
Time
Addendum
hereby dclctcd
hcrcby inserted into the Lease by
Defined Terms. Terms
when such terms
l7)
is
is
that are
defined
in thc
Lcasc
the Lease (and
Ill t0
in its entirety
t0 the
and the new
this reference.
shall
have the same meanings
are used in this Agreement.
is
ofthe Essence. Time is ofthe essence with respect
Agreement and the Lease.
t0
each and every
obligation arising under this
[8)
Binding EffeCL All ofthe covenants and agreements herein contained
shall
be
binding upon and shall inure to the benefit of the parties hereto and their r03pectivc heirs,
representatives, successors and assigns.
Confirmation OfTerms. All 0fthe terms, covenants and conditions ofthe Lease,
arc herein specifically modified and amended, shall remain in fill] force and effect, and
19)
cxccpt as
arc hereby adopted and reaffirmed
by the
parties hcrcto.
20) Counterparts. This Agreement
which
shall
be deemed an original, and
all
may
be executed in one 0r more counterparts, each of
of which
shall constitute
onc and the same instrument.
Moreover, signatures received by facsimile 0r portable document format
effective for the purposes ofthis Agreement.
N.
LLEGAL] LPROPERTYLSANTANA ILMA "RELOCATEch-sla
-
Final J0-3-12.Dacx
shall be
deemed
PDF Page 86
1N WITNESS
WHEREOF,
the parties hereto have set their hands
and
seals the
d3y and
date set forth above.
WITNESS;
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY
VILLAGE, LLC,
a California limited liability
company, by its managing member,
INC, a Maryland corporation
Kb,—
QQMLSM
'fi
Name:
Deborah A. Colson
Vice President-Legal Operations
Title:
TENANT:
TESLA
M0103:
By:
Name:
Title:
‘
.
‘
twp
'
‘
e
M.EGALILPROPERTYLS'ANTANA ILMAUIEIDCA TEkTes/a
INC, a Delaware corporation
r
Title:
[Corporate Seal]
N,
STREET RETAIL,
-
final 10-J—I2,Daa
r
‘
‘
v
UKVNIMU
PDF Page 87
IN WITNESS
WHEREOF,
the parties hereto have set their hands and seals the day and
date set forth above.
LANDLORD:
FRIT SAN JOSE TOWN AND COUNTRY
WIINESS:
VILLAGE, LLC,
a California limited liability
company, by its managing member,
LNG, a Maryland corporation
STREET RETAIL,
By:
Name:
Deborah A. Colson
Title:
Vice President-Legal Operations
TENANT:
TESLA MOTORS,
ATTEST:
By:
INWe
C91
.
3
Name:
Ngme:§
5W?“
Title=
Tltle:
N1 UMQSIUS M91
i
a
[Corporate Seal]
N.
VLEGALILPROPERTWSA‘NTANAELMmRFIDC/j TERTeA/a
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anul 10-3-I2.DOCJ
1‘1
corporation
”WW EKPWW
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PDF Page 88
EXHIBIT A
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PDF Page 89
ML: E
TESLA MOTORS ; SPACE NO‘
3010
ASIS
LANDLORD IMPROVEMENTS
lo deliver the Relocated Premises 10 Tenant in an “As Is” condition.
aware of the condition of the Relocated Premises and agrees t0 accept the
Landlord agrees
Tenant
is fully
Relocaled Premises
made n0
in
an “As Is” condition;
it
being expressly understood that Landlord has
representations or warranties with respect t0 such premises and that Tenant has
inspected the
same and has found such premises
t0
be satisfactory.
TENANT IMPROVEIVIENTS
Tenant
shall
completely remodel, renovate and refurbish the Relocated Premises and the
minimum, install ncw storefront, storefront signage, and ceiling,
storefront, including, at a
lighting, trade fixtures,
room
(if
HVAC
floor and wall coverings,
necessary), and
make
all
changes
to thc
system
(if
necessary), and toilet
Leased Premises necessary
t0 place
same
m
applicable governmental codes t0 enable Tenant t0 properly use the Leased
Premises for the Permitted Usc (hcrcinaficr collectively referred t0 as “Tenant‘s Work").
compliance with
all
Plan Submittal Procedure
work
performed by Tenant hereunder shall bc in accordance with detailed plans
and specifications, t0 be prepared by Tenant's architect in reproducible form, including Tenant's
material sample board (hereiuafier collectively referred t0 as the “Plans”), all ofwhich shall bc
submitted t0 Landlord within ten (1 0) business days ofthe date ofthis Agreement for Landlord‘s
A11
t0 be
wn'tten approval (as to both t0 design and materials)
withhold
in
which such approval may be granted 0r
Landlord's sole and absolute discretion; provided, however, Landlord shall act
reasonably in approving Tenant's plans and specifications and material sample board for
the interior of the Relocated Premises to the extent such are substantially similar t0 and no
less in quality in terms of design, materials and standards 0f finish to the Original Leased
Premises). Landlord agrees Io use commercially reasonable efforts t0 promptly review and
either approve, conditionally approve, or disapprove the Plans within tcn (10) business days
afler
Landlord’s receipt thereof. IfLandlord advises Tenant that changes lo the Plans are required,
shall have ten (10) business days thereafier to revise (as required by Landlord) and
resubmit the Plans for Landlord’s approval. This process shall continue until Landlord has
Tenant
approved the Plans.
It is
expressly agreed that Tenant shall not
commence any such work
until
Landlord has
approved the Plans and any required building permits have been issued by the applicable local
governmental
authoritics‘
No
changes 0f materials 0r finishes are permitted afier Landlord’s final approval 0f the
Plans unless approved in writing by Landlord.
Within five (5) days ofthe dale upon which Tenant has received Landlord's approval 0f
a1] appropriate building permits in accordance with thc
tho Plans, Tenant shall apply for
requirements 0f the applicable jurisdiction Tenant shall promptly give a copy of the building
permits to Landlord.
Construction Requirements
Tenant
shall
commence
construction ofTenaut's
Work
in thc
Relocatcd Premises no
later
than five (S) days afier whichever ofthe following shall be the latest t0 occur;
receives Landlord's approval 0f the Plans; or
(a)
The date Tenant
(b)
The date of issuance ofall appropriate building
(c)
The Relocation Date.
Tenant
shall diligently
pursue
t0
completion
permits; or
all of'l‘enant's
Work.
NriLEGAL:mopmmsmmm mmxflwmmmm Fm! mailman:
-
Exhlblt
B
page—Z
PDF Page 90
EXHIBIT B
TESLA MOTORS ; SPACE NO.
3010
ASIS
Tenant's general contractor will meet with Landlord's representative prior t0 the initiation
ofany work on the space
to review Landlord's construction rules
and regulations and any other
requirements specific to the Shopping Center.
Tenant's general contractor wil} submit to Landlord a check for Five ThOusand Dollars
($5,000.00) as a construction deposit
made payable
to the Landlord.
This deposit will be
Work, provided I10 rules have been
corrected, and n0 damage has occurred t0 the
returned in full afier the contractor has completed Tenant‘s
violated, all Landlord's
punch
list
items are
Shopping Center.
Tenant must place the
companies within five
Tenant but in all events prior
utility
electric,
water and/or gas mctcrs
in
its
name with
the appropriate
days from the date Landlord delivers the Relocatcd Premiscs t0
Io the commencement of any 0f Tenant's Work in the Relocated
(5)
Premises.
A1]
work
manner, and
in
shall obtain all
[o
be performed by Tenant shall be performed
in a
good and workmanlike
accordance with Section 9.04. ofthe Lease, Tenant} at its sole cost and expense,
permits, licenses 0r approvals required for Tenant’s Work from thc appropriate
authoritics‘
Tenant expressly agrees to indemnify, defend and hold Landlord harmless fiom and
damage to person 01' property Occurring during
against any liability to any Person or estate for
the
work proposed hereunder.
At thc completion ofTenant’s Work, Tenant
Certificate ofOccupancy.
shall deliver to
as well as “as-built” drawings, in
CADD
Landlord a copy ofits
founat, for Tenant’s
Work.
SANTANA ROW
N: \LEGA L / 1PROPER D'LSAJNTANA ‘J. AM
{RELOCA TE iTcsla
7
Final i073» [2.1900
Exhibit
B
page—Z
PDF Page 91
ADDENDUM H
CONSTRUCTION ALLOWANCE
Landlord
shall
pay
to
Tenant a construction allowance for actual construction costs
work performed and materials furnished to construct and install
Leasehold Improvements in connection with Tenant's Work, as described in Exhibit B attached
lo thc Lease, in an amount not to exceed Three Hundred Sixty-Four Thousand Three Hundred
Twenty-Five Dollars ($364,325.00), calculated based upon $65.00 per square foot ofFloor Area
0fthc Leased Premises (hereinafier “Construction Allowance"). The Construction Allowance
incurred by Tenant for
rcprcscnts Landlord’s contribution towards Tenant’s
Work
and shall be paid
t0
Tenant
in
accordance with the following terms and conditions.
Pament
1.
Provided
for
payment
is
(i)
of Construction Allowance.
Tenant
made
is
not
in
Default
at the
within one hundred eighty
(l
time the payment
is
80) days 0fthc Rent
due, and
(ii)
such request
Commencement
Date,
Landlord will pay the Construction Allowance t0 Tenant in two (2) payments (each a "Partial
Payment"), with the first payment not L0 exceed Tenant‘s actual construction costs up to the sum
OFOne Hundred Eighty-Two Thousand One Hundred Sixty-Two and 50/100 Dollars
($1 32,162.50), and the last
costs up to the
payment
Payment") not
("Final
to
exceed Tenant‘s actual construction
sum OfOne Hundred Eighty—Two Thousand One Hundred Sixly—Two and
Dollars ($182,162A50)‘ Landlord shall only bc obligated t0 pay t0 Tenant, up to thc
50/ 100
maximum
amount 0fthe Construction Allowance, for actual construction costs incurred by Tenant to
construct and install Leasehold Improvements, and only to the extent such costs are evidenced by
thc Partial Payment Required Documentation and Final Payment Required Documentation. The
Construction Ailowance will be paid
in
accordance with thc following schedule.
Partial Payments.
2.
Landlord will pay each Partial Payment within thirty (30) days afier the following list of
documents (hereinafter “Partial Payment Required Documentation”) has been submitted to
Landlord
for Landlord’s approval.
Notice 0f Partial Completion. Notice
(i)
fiom Tenant 21nd
its
general
contractor ccflifying in writing to Landlord, that (a) with respect t0 thc first Panial Payment fifiy
Work is completed in accordance with thc plans and specifications
percent (50%) 0fthe Tenant’s
approved by Landlord and (b) with respect t0 thc second and subsequent Partial Payments one
hundred percent (100%) 0f the Tenant's Work is completed in accordance with the plans and
specifications appr0ved by Landlord.
General Contractor Application and Certificate For Payment.
AIA Document G702 together with AIA Document G703 (a sample ofboth ofwhich arc
attached as Schedule I) duly completed, executed and notarized on behalfofthe Tenant's
(ii)
architect (with respect only t0 the
(iii)
a5 Schedule
II
AIA Document G702)
and general contractor.
Lien Waivers. Interim release of lien (0n the form attached hereto
or a similar fonn compliant with Legal Requirements) executed by the Tenant’s
general contractor.
(iv)
Affidavit of Payment. The affidavit (which
M
be on the form
attached hereto as Schedule III) executed by the Tenant’s general contIactor listing (a) the names
0f all contractors, subcontractors, suppliers and materialmen who provided 0r supplied, labor,
goods and materials t0 the Leased Premises, and (b) that a1} listed contractors,
subcontractors, suppliers and materialmen have been paid in full for amounts owed t0 them, as
indicated in such general contractor’s immediately preceding Application for Payment, for labor,
services, goods and materials provided 0r supplied t0 the Leased Premises.
services,
(v)
Certification.
A
Taxpayer Identification Number and
Form W-9 with Tenant’s taxpayer identification number completed.
Form W-9 Request
for
Final Payment. Landlord will pay the Final Payment within thirty (30) days afier
Tenant has opened the Leased Premises for business t0 the public, Tenant's Work is completed in
accordance with the plans and specifications approved by Landlord, and Landlord has received
3.
and approved the following
list
0f documents
(hereinafter, “Final
Payment Required
Documentation”):
N \LEGALI\PROPERTYSANTANMLMAMLOCATEWcsla
.
Final
10-3-1200“
Addendum H Page
1
PDF Page 92
ADDEN DUM fl
CONSTRUCTION ALLOWANCE
Notice of Completion. Notice from Tenant and
(vi)
its
general
Landlord‘ and Landlord approves such certification, that one
hundred percent (100%) 0f Tenant’s Work is complete in accordance with the plans and
specifications approved by Landlord.
contractor certifying in writing l0
General ContractorFinal Application and Certification For
(vii)
Payment. Tho general contractor's final application for payment on AIA Document G702
together with AIA Document G703 (a sample ofboth ofwhich arc attached as Schedule I) duly
completed, executed and notarized 0n behalf 0f the Tenant's architect (with respect only t0 the
AIA Document G702) and general contractor.
(viii)
0n the form attached hereto
as
Lien Waivers. Final unconditional release 0f liens (which must bc
Schedule 1H or a similaI form compliant with Legal
Requirements) executed by the general contractor.
Affidavit 0f Payment. Tho affidavit (which
(ix)
m
attached hcrcto as Schedule IV) executed by the general contractor (a) listing the
contractors, subcontractors, suppliers and materialmen
goods and materials
t0 the
Leased Premises, and
(b)
who
be
0:1 the
form
names 0f all
provided or supplied, labor, services,
confirming
that all listed contractors,
subcontractors‘ suppliers and matcrialmcn have bccn paid in full for the labor, services, goods
and materials provided or supplied
(x)
OfOccupancy
for the
t0 Ihc
Leased Premises as of the date 0f the affidavit.
Certificate of Occupancy.
Leased Premises.
(xi)
Intentionally deleted.
(xii)
Intentionally deleted.
Landlord
may withhold
the Construction
A pennanent
Allowance
until all Partial
Documentation 0r Final Payment Required Documentation, as the case
satisfactorily submitted t0 and approved by Landlord.
4.
Landlord's Right
to
or temporary Certificate
may
Payment Required
bc, has
been
Retainage.
Intentionally deleted.
5.
Third Persons.
Under n0 circumstances
confer upon any third person or
any Addendum thereto, be construed to
any right or cause ofaction against the Landlord 0r
shall this Lease, 0r
entity
Tenant, including, but not limited
t0, all contractors,
subcontractors, suppliers, laborers 0r
materialmen.
6.
Use of Construction Allowance.
Tenant shall use the Construction Allowance only for the construction and installation of
Leasehold Improvements in and t0 the Leased Premises. It is specifically understood and agreed
that (i) the Construction Allowance may not and Shall not be used for the purchase and/or
installation 0f Tenant’s Property, and (ii) Landlord shall not be required t0 pay thc Construction
Allowance unless the Coustruction Allowance was used for the construction and installation 0f
Leasehold Improvements, as evidenced by the Required Documentation.
7.
Landlord’s Failure t0 Pay Construction Allowance.
pay any portion 0fthe Construction Allowance within thiny
Tenant that Ihc same is past due, and provided Tenant has
from
(30) days afier receipt of notice
submitted the Required Documentation as sct forth herein, Tenant may deduct any such amounts
including interest at the rate of ten percent ( 10%) from its monthly Minimum Rent next due and
In thc event
Landlord
fails to
payable
N:\LEGALI\PROPERTYEANTANALMARELOCATEWCSM
-
Final
lO-LIQDUUX
Addendum H Page
2
PDF Page 93
FOR:
made
for
payment
as
is
in
connecu 0n with the Contract.
attached
shown below,
ALA Document G703,
$1 19,556
of Completed Work
E 0n G703)
100%
$1 19,556
0
a
D+
(Column F 0n C3703)
of Stored Mnlerial
(Column
_%
_%
RETAJNAGE:
b
Total Retajnage (Lines 5a + 5b or
l0v3v|2 Docx
0.00
ALA DOCLLMENT G 702
APPLI CATION N O:
pERJOD To;
PROJECT NOS:
CONTRACT DATE:
Work
for
.‘
..
Eccl‘s
IJ-lc
[hat
this
U131 all
now due
and
amo-unrshavc been paid by
is
[mad
Date:
currentpammt dwxm huein
of:
day 0F
County
on-site observalions and the data
Owner mat t0 Lhc bcst of lhc
Work has prong$ed as indicatni
Decumcnts, based on
belief the
application. lhc Archited ccrtifis tolhc
lmowlcdgm informauon and
..$
I/mt are
changed
fa
Dale
difigureson Jhu-
confinrm wirh the amount Nrnfitd.)
dlfinfiom {he amour]! agflied.
Initial
Wat is in accordance wid'l Lhc Contract Documents, and the Conlmclm
0ch AMOUNT CERTIFIED.
paym mt
........
certified
Confin nation Shed
mom
CONTRACTOR
ARCHITECT
OWNER
Dishibution IO‘
E
E
E
E
Cohnactofs know] :dgc,
V
mag ONE op
lhat to 1hc beg. of lhc
me
md
which prcvious Cdfificates'for Payment were
accordéncc With [he Contract Documents,
infmmation and bclicfth'c Work covcxcd by mis Application forPay‘menl has been
Th: undusigncd Conrado: cefljfics
in
Contractor For
complaed
lh e
7
,
paymcnls rcccivcdfrom the Owner,
’_
CONTRACL‘DR:
By;
State Of‘
'
Subscrilmd and sworn t0 before
My Commissifm ‘exfi'ues.
Notary Publib;
Alchi
cnlilled t0
d1: (pmlily of Lhc
Is
AMOUNT CE RTIFIED
the
“flack explmarion ffmnoum
ARCHITECT,
Apphuzfion and 0n
By.
Page
3
(ORK AVE. N
II
1735 Nfl‘v’
VI'
.WASHNGTON. DC ZOmB-SBZ
This Certificate is not mgoflable. The AMOUNT CERTIFIED is payable only to the
Cmtmctor named herein. I$uance, payment and acceptance 0f payment are without
any rights ohhc Owner 01' Contractor under this Contract.
AMERCAN \NSTITUTEOFARCH‘TECTS.
prejudice to
THE
Addendum
Cenlflcatlon of Document's Autha ntlclty from the Licensee.
$0.00
DEDUCTIONS
-
comprising
ARCHITECTS CERTIFICATE FOR PAYMENT
u
In accordaficc with [he ConLrac!
qul
$1 19‘556
0.00
0
0.00
»
Column] of 6703)
$0.00
$0.00
EARNED LESS RETAINAGE
Total in
LESS PREVIOUS CERTIFICATES FOR
PAYMENT (Lin: 6 fiom prior Cemficate)
CURRENT PAYMENT DUE
BALANCE TO FINISH, INCLUDING RETAINAGE
(Line 4 Less Line 5 Total)
TOTAL.
S
CONTRACT SUM TO DATE (Line i 2)
TOTAL COMPLETED 8; STORED TO
DATE
(Column G on G703)
ORIGINAL CONTRACT SUM
1
99%ww
PROJ ECT:
APPLICATION AND CERTIFICATION FOR PAYMENT
TO OWNER:
CONTRACT
is
CONTRACTOR'S APPLICATION FOR PAYMENT
Applicafion
.
.
K
S
ADDITIONS
Net change by Change Orders
Confimlaticm Sheet,
bulb)!—
V
5.
6.
7.
8.
9
(Line 3 less Line 6)
CHAN GE ORDER SUMMARY
by Owner
Total changme approved
inJIeVious months
Month
Ordfir
Total approved this
TOTALS
NET CHANGES by Change
A
Am DOCUMENT 6702 APPLLCNION mocgmmcmouron PAYMENT 1992 Esmow Am @1 992
Users rnay obtain validation of thls document by requestlng a cnmpieted AIA Document 0401
N:\.LEGAL1\PROPERTY‘SANTANA‘iMAmELOCATERTcsIa
PDF Page 94
CO NTI N UATION SH EET
PAYMENT,
PRESENTLY STORED
M ATERIALS
F
AM DOCUMENT G703
E
containing
I
TI-HS
WORK COMPLETED
D
may apply.
AIA Document G702, APPLICATION AND CERTIFICATION FOR.
[n
Contractor's signed certificatimjs attached
dollar.
c
SCHEDULED
FROM PRWIOUS
for line items
tabulations below, amounts are stated to the nearest
B
DESCRIPTION OF W'ORK
Use Columnl 0n Contracts where variable retainage
A
ITEM
NO
>
V
I
APPLICATION NO:
APPLICATION DATE:
G
100%
100%
100%
°/o
(G + C)
I
'
'f
‘
L
’
;
I
'
10-3-1mocx
PAGE CF
PAGES
_
FIN] SH'
‘
H
BALANCE
‘
.
TO
0
0
‘0
PERIOD T O:
ARCHITECTS PROJECT NO:
TOTAL
COMPLETED TO
DATE [D+E+F)
1500
D OR E)
950
(NOT IN
0
PERIOD
0
APPLICATION (D+E)
950
1500
VALUE
ARCHITECT
0
0
I
950
13500
1500
0
PERMUTING
13500
2
0
ELECTRICAL
13500
3
I
1
$0.00
$0.00
$0.00
100%
$0.00
“/0
Addendum
II
Page 4
1
RETAINAGE
(F VARIABLE
RATE)
0
0
0
0
E350
0
33 50
8350
3600
4
0
2600‘
0
0
0
0
10
3600
3600
PLUMBING
MECHANICAL
2600
5
0
0
0
‘
0
1600
>
0
FIRE SUPPRESSION
15726
[00%
100%
7
6
5850
0
0
0
0
0
5350
16726
0
0
100%
0
100%
5850
4000
$119,556
'
0
4500
0
24566
2300
0
0
4500
0
0
4000
0
26614
2300
0
4500
0
0
100%
O
0
0
'0
4500
0-
$000
l‘
266M
24566
2300
100%
0
O
‘
4000
100%
0
0
.
0
4500
100%
16726
"
0
26614,
4500
O
0
$1 19,556
24566
$0.00
‘V‘
0
FRALIE/DRYWALL
CONCRETE
PAINT & WALL COVER
ACOUSTICAL CEILING
GOODS & MATERIAL
GENERAL CONDITIONS
O&P
$1 19,556
Final
$0.00
100%
100%
TILE M/L
‘
8
9
10
1 l
12
13
14
GRAND TOTALS
-
Users may obtain validation of this document by requesting of the licensé a completed AIA Document D401 -Certification of Documents Authenticity
museALI@ROPERTHSANTANMLMNRELOCATBIesJa
PDF Page 95
ADDENDUM Ii
CONSTRUCTION ALLOWANCE
SCHEDULE IT
WAIVER AND RELEASE UPON FINAL PAYMENT
California
UNCONDITEONAL WAIVER AND
RELEASE UPON FINAL PAYMENT
OWNER:
FRIT SAN JOSE
TOWN AND COUNTRY VILLAGE, LLC
GENERAL CONTRACTOR:
PROJECT NAME:
STATE 0F CALIFORNIA
COUNTY OF
Thc undcrsigwd has bccn paid
in full for all labor, services,
cquipmcnt 0r material furnished
contraclcd
undemigncd
with)
(firm
W
i W (Owner) located ar
7
and docs hereby wmve and release any fight f0 a mechanic's lien, stop notice, 0r any
material bond on the job. except for disputed claims for extra work in the amount of S
7
0n
7
to
of
job
thc
(Project)
r
right against a labor
and
THIS DOCWIENF WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU
HAVE BEEN PAl'D FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE
AGAINST YOU IF YOU SIGN IT, EVEN TF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN
NOTICE:
PAID, USE
A CONDITIONAL RELEASE FORM.
and 0n behalf 0f the firm 0r company
and suppliers, has placed his hand and seal this
day 0f
In Witness Whereof, the undersigned signatory, acting for
listed
below and
.
all
of
its
laborers, subcontractors,
207,
FIRM OR COMPANY:
By:
Sworn
10
before
me
Print
and subscribed
Name:
day 0f
this
‘
207.
Its:
Notary Public
(NOTARY SEAL)
My Commission
Expires:
N:\LE(3ALI'\PROPERTY\SA.NTANA‘lMAARELOCATEVFBSIa
-
Fina1
10-3-12Docx
Addendum
II
Page
5
PDF Page 96
ADDENDUM fl
CONSTRUCTION ALLO WANCE
SCHEDULE
Ill
GENERAL CONTRACTOR AND SUB-CONTRACTOR AFFIDAVIT
State of
County of
(1)
(2)
being
first
duly
sworn,
of
under oath deposes and says that he/she
(Contractor) which has been contracted
(3)
(4) (the Project) with
construction of
(tenant
name)
is
for
at the
following store location (5) (store number).
That. to complete the Project only the following companies. businesses. and individuals have been
contracted by Contractor. and have furnished, or are furnishing and preparing materials for, and have
on the Project. As indicated below, any and all contractors, subcontractors.
and materialmen that have provided labor, material 0r services t0 the undersigned for
use or incorporation into the construction of the improvements to the Project have been paid and satisfied
in full; there are n0 outstanding claims of any character arising out 0f, 0r related t0. undersigned's
activities on, or improvements to. the Project.
done
or are providing labor
laborers, Suppliers
This statement
payments
presently
is
made
(tenant
to
name)
and is a full, true and complete statement
companies, businesses and individuals involved in
for the Project,
due
all
OUNT
TRADE
SUBCONTRACTORS/
of
to obtain the release of contract
amounts paid
to date.
and amounts
this project.
PAID
TO
CO
BALANCE
DATE
SUPPLIERS
Company Name
Address
CitylState/ZIp
Code
Telephone Number
Subscribed and sworn to before
day
of
,
me
this
20__
Signed By:
Title:
Notary Public
N.\LEGAL1\pROPERTmmmNMLMMRELOCATmm-m
.
Final
10—34mm
Addendum
II
Page 6
PDF Page 97
ADDENDUM LLI
TENANT TERMINATION RIGHT
Provided Tenant
Ls
not
in
material monetary Default (16., a Default, thc value
ofwhich
is
equal t0 0r greater than one (l) month’s Minimum Rent) beyond any applicable notice and cure
period (nor has any event occuned and remained uncured that, with Notice and an opportunity to
open
and operating pursuant t0 the terms 0f
of this Addendum HI,
written
prior
terminate
the
Notice to Landlord
right
to
upon
Lease
Tenant shall have the one-time
(‘Termination Notice"), which Termination Notice shall be given ifat all, not later than the final
day 0f the fourth (4m) Lcasc Year following thc Relocation Rent Commencement Date.
cure, could
become a
Default), has been
the Lcasc throughout thc
Term and
for business
subject t0 compliance with the terms
Tenant timely exercises its termination right hereunder, Tenant agrees it shall continue
'm
accordance with the terms and conditions of the Lease through and including the
last day 0fthe fifih (5m) Lease Year following thc Relocation Rent Commencement Date (the
“Termination Date”), whereupon Tenant shall quit and vacate the Leased Premises (and the
PCA) in the condition required by the Lease. On 0r before the Termination Date Tenant shall
If
to operate
pay t0 Landlord a payment (the ”Termination Payment”) equal to Two Hundred Sixty Six
Thousand Two Hundred Thirty Seven and 50/100 Dollars ($266,237.50) which amount
computed by multiplying fifly percent (50%) times the Construction Allowance paid under thc
tcrrns of this Lease Modification and Extension Agreement plus Fifteen Dollars ($15.00) pcr
= $182,162.50; 5,605
square foot of Floor Area within the Leased Premises ($364,325 x 50%
i
$84,075.00; $182,162.50 + $84,075.00 = $266,237.50).
square feet x $15.00 per square foot
1's
N:\LEGAL!\PROPERI YSANTANNLMAUUELOCATEWEQA
-
Final
104-12 DOCK
Addendum
III
Page
l
PDF Page 98
COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made this 1" day ofluly, 2014 by and between FRJT San lose Town and
Country Village, LLC a California limited liability company (the ”Landlord’) and Tesla Motor's Inc. a
Delaware corporation (the ”Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant have entered into that certain
2010
(as the
same had been amended the
Lease dated November 3,
“Lease') for a poru'on ofthat's
cemin
real property
situated in that certain mix-use development located in San lose. California known as Santana
and commonly known as Store #3010 and more particularly described in the Lease, and
Row
WH EREAS, Landlord and Tenant now wish to document their agreement as to the Term
Commencement
Date. Rent Commencement Date, Relocation Date, Relocafion Rent
Date and Termination Date ofthe Term of the Lease.
Commencement
AG REEMENT
NOW, THEREFORE, in consideration ofthe Leased Premises as described in the Lease and
the covenants set forth therein, Landlord and Tenant agree as follovm
[a]
IN
The Term Commencement date bfthe Term
is
(b)
The Rent Commencement date ofthis Lease
(c)
The Relocation date
is
April 16, 2011.
January 23, 2013.
[d]
The Relocation Rent Commencement date
(e)
The Termination Date ofthis Lease is April
WITNESS WHEREOF, the
is
January 29, 2011.
is
April 4, 2013.
30, 2023.
parties hereto have executed this
Agreement as of the day and year first
above written.
Landlord:
Tenant:
FRIT SAN iOSE TOWN AND COUNTRY, LLC
A California limited liability company, by its
Tesla Motors, inc. , a Delaware Corporation
Managing member, STREET RETAIL, INC, a
Maryland corporation
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PDF Page 99
COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made
this 15‘
Country Viliage, LLC a Caiifornia limited
Delaware corporation [the "Tenant").
day Ofluly, 2014 by and between FRIT San Jose Town and
company (the "Landlord”) and Tesla Motor’s Inc, a
liability
WITNESSETH
WHEREAS,
2010
[as the
Landlord and Tenant have entered into that certain Lease dated November
same had been amended the
situated in that certain mix-use development located in San 105e, California
and commonly known
as Store
3,
"Lease"] for a portion 0fthat's certain real property
#30 10 and more
known
as Santana
particularly described in the Lease,
Row
and
WHEREAS, Landlord and Tenant now wish t0 dOCxIment their agreement as to the Term
Commencement Date. Rent Commencement Date, Relocation Date, Relocation Rent Commencement
Date and Termination Date 0f the Term 0f the Lease.
AGREEMENT
NOW, THEREFORE,
in
consideration 0fthe Leased Premises as described in the Lease and
the covenants set forth therein, Landlord and Tenant agree as follows:
[a]
IN
The Term Commencement date ofthe Term
is
(b)
The Rent Commencement date ofthis Lease
(c)
The Relocation date
is
April 16, 201
1.
1.
January 23. 2013.
(d)
The Relocation Rent Commencement date
(e)
The Termination Date ofthis Lease
WITNESS WHEREOF,
is
January 29, 201
is
i5
April 4, 2013.
April 30. 2023.
the parties hereto have executed this
Agreement
as 0fthe day
and year
first
above written.
Landlord:
FRIT SAN JOSE
A
Tenant:
TOWN AND COUNTRY,
California limited liability
LLC
company. by its
Managing member, STREET RETAIL,
Maryland corporation
By:
Its:
Tesia Motors,
Inc.
,
a
Delaware Corporation
INC. a
By:
Its:
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PDF Page 100
EXHIBIT B
PDF Page 101
GOODKIN LAW GROUP
1800 Century Park East, 10m Floor
o
Los Angeles, Califomia 90067
o Tel: (310)
552-3322
Apc
o Fax: (310)
943-3863
www.goodkinlaw.com
Daniel L. Goodkin, Esq.
d oodkin
oodkinlaw.com
File No.2 10132.058
June
VIA OVERNIGHT DELIVERY
RES QUESTED
2020
& CERTIFIED MAIL RETURN RECEIPT
Which Will Do Business
California As Tesla Motors, Inc.
Tesla, Inc.
Tesla,
Attn: Lease Administration
#34
901 Page Avenue
Fremont,
15,
1110.,
in
3500 Deer Creek Rd.
Palo Alto, CA 94304
CA 94538
CT Corporation
System
818 West Seventh Street, Suite 930
Los Angeles,
CA 90017
The written Lease Agreement dated November
RE:
all
3, 2010 (collectively, With any and
addenda, amendments, assignments, and other modifications, “Lease”) by and
SAN JOSE TOWN AND COUNTRY VILLAGE, LLC, a California
partnership, as landlord, (“Landlord”), and TESLA MOTORS, INC., a
between FRIT
limited
Delaware corporation, as tenant (“Tenant”), pursuant to Which Tenant leased from
Landlord the premises comprising approximately 5,605 square feet commonly
known by the street address 0f 333 Santana Row, Suite 1035, San Jose, CA 95128,
as more particularly described in the Lease (the “Premises”) in the mixed used
proj ect
known
as Santana
Row / Demand for Payment
Dear Tenant:
Please be advised that our office has been retained t0 represent Landlord with regard to
hereby made to the Lease (as amended, extended, or
otherwise modified). A11 capitalized terms not otherwise defined herein shall have the meaning
the above-referenced Lease. Reference
ascribed to
them
is
in the Lease.
GLG
PDF Page 102
Tesla, Inc.
June 15, 2020
Page 2
Following up 0n Landlord’s prior communications regarding
this matter, this letter shall
demand that Tenant immediately pay all amounts owed
sum 0f $83,573.80, Within five (5) davs 0f the date 0f this letter.
constitute Landlord’s formal written
under the Lease, in the
A.
total
Tenant’s Lease Obligations
Section 5.01.A 0f the Lease provides that “Tenant shall pay
prior notice 0r
amounts,
manner
demand and Without
and times
at the rates
offset,
“Minimum Rent plus
Rent
t0 Landlord, Without
deduction 0r counterclaim whatsoever, in the
set forth herein, prorated for
set forth in this Section 5.01 .A.”
all
Rent
is
defined
any
month, in the
0f the Lease as
partial calendar
in Section 1.02.1
Additional Rent.”
Minimum Rent
i.
Section 5.02 of the Lease provides that “Tenant shall pay Landlord the
Minimum Rent
in
commencing 0n the Rent Commencement Date, and on
the first day of each and every calendar month thereafter throughout the Term.” At all relevant
times, the Minimum Rent owed by Tenant totaled $ 1 9,5 1 8.75 per month.
equal monthly installments, in advance,
Additional Rent
ii.
Additional Rent
is
defined
0f the Lease as “A11 sums payable by Tenant
Rent, Whether as reimbursement 0r otherwise,
in Section 1.02.H
Landlord under the Lease, other than Minimum
and regardless 0f Whether denominated as ‘Additional Rent.’”
t0
Section 7.01.A. 0f the Lease provides that “Tenant shall pay, When due, all charges for
water, sewer, electricity, gas, telephone service and other utilities supplied to the Leased
Premises (‘Utility Charges’).” Further, Sections 7.01.D and 7.01 .E 0f the Lease require Tenant to
pay
for Tenant’s
Condenser Water Equipment Charge and Tenant’s Sprinkler Charge,
respectively.
B.
Default Provisions of the Lease
The Lease
at
Section 16.01 provides that a Default by Tenant occurs upon “Tenant’s
failure to pay, 0r make available as required by this Lease, any Rent (or any installment thereof)
within five (5) days after Tenant receives notice from Landlord that the same is past due and
payable, however, if Landlord gives notice twice Within any twelve (12) month period, then
pay any Rent Within five (5) days after same is
due and payable without the necessity 0f further notice.” Landlord is then entitled t0 all of the
thereafter Tenant shall be in Default if it fails t0
remedies
set forth in Section 16.02
forth in California Civil
Code
0f the Lease, including but not limited to the remedies
sections 195 1.2 and 195 1.4.
//
GLG
set
PDF Page 103
Tesla, Inc.
June 15, 2020
Page
3
Further, Section 17.04 0f the Lease provides that:
“If Landlord or Tenant institutes any suit against the other in
connection With the enforcement 0f their respective rights under this
Lease, the Violation 0f any term 0fthis Lease, the declaration 0ftheir
rights hereunder, 0r the protection
under
this
0f Landlord’s 0r Tenant’s
interest
Lease, the non—prevailing party shall reimburse the
prevailing party within
five
days of demand for
(5)
its
reasonable
expenses incurred as a result thereof including court costs and
reasonable attorneys’ fees, even
to the rendering
Rent
C.
is
As you know,
if
0f any judgment.”
Not Abated 0r Excused
the
COVID—19
uncertain time for everyone.
Tenant pays past due Rent prior
situation
is
as a Result 0f
COVID-19
rapidly evolving, and this
is
a difficult and
We understand that Tenant and its employees may be experiencing
difficulties as a result 0f COVID-19,
and Landlord is sympathetic t0 Tenant’s challenges.
Landlord is prepared t0 and Willing t0 work With Tenant t0 ensure the continuation 0f business
the Center pursuant to the regulations promulgated by state, and local governments; however,
Landlord would also like to remind Tenant of its obligations 0f the Lease.
As
the obligations 0f the Lease are clear, Landlord
is
at
suggesting that Tenants at the
Center reach out t0 their respective insurance carriers and begin the process of initiating a claim
for
any
loss
0f business Tenant might suffer during the Pandemic. Specifically, Section 17.13 0f
the Lease provides:
“Except for the pavment of monetarv obligations, if Landlord 0r
Tenant is delayed in or prevented from performing any of its
obligations under this Lease by reason 0f acts of God, strike, labor
troubles, 0r any similar cause whatsoever beyond their control
(which shall not be deemed t0 include financial inabilitv), the
period 0f such delay 0r such prevention shall be deemed added t0
the time herein provided for the performance of any such obligation
by Landlord 0r Tenant.” (Emphasis added).
T0 that end, we wish to inform you that in light 0f the above, Tenant’s obligations t0 pay
Rent continue. While local emergency orders issued by the State, County, and/or City in which
the Premises are located may 0r may not preclude Landlord from seeking t0 evict Tenant for
Tenant’s failure to pay Rent as a result 0f the COVID—19 Pandemic, here, Landlord does not seek
t0 evict Tenant at this time. Landlord encourages Tenant to pursue any and all available options
for financial support, including business interruption insurance and/or any governmental
programs that may be available t0 Tenant.
GLG
PDF Page 104
Tesla, Inc.
June 15, 2020
Page 4
Tenant’s Default and Obligation t0 PaV Past
D.
Due Rent Within
5
Davs
Notwithstanding the above terms of the Lease, Tenant failed to pay Rent commencing as
of September 2019 through June 2020, in the total amount 0f $83,573.80.
In light 0f the foregoing, Landlord
currently
owed under the
demands
Lease, Which currently totals
following the date 0f this
Tenant immediately pay all amounts
$83,573.80. within five (5) davs
that
letter.
Should Tenant fail to d0 s0, Tenant will continue t0 be in default under the terms of the
Lease, and Landlord reserves all of its rights and remedies under the Lease, at law, and in equity,
including, but not limited to, (a) initiating an action for breach of the Lease, (b) applying for an
immediate writ 0f attachment and temporary protective order, and/or any other remedies
available to
it.
We hope, however,
such actions are not necessary and that Tenant Will take the
necessary steps t0 put themselves in full compliance With the Lease.
In the meantime, Landlord reserves
0r in equity,
all
all
0f its rights and remedies, under the Lease,
of which are hereby expressly reserved.
foregoing, please do not hesitate to contact
me
at (3 10)
If you
Daniel L. Goodkin, Esq.
GLG
law
have any questions regarding the
552-3322.
Sincerely,
DLGzAJL/sy
at